THE  LIRRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHO(M.  C)l    LAW 


THE  LAW  OF 


REAL  PROPERTY 


AND 


DEKDS 


RY    ROHKirr  T.   DEVT.TV 

rVITEI)  STATKS   A  IIOHNKV.  SA.N    KI<A.N(   isro    CAI 

4LrUUH    OF    "TUK    TWKATT     P< .  W  E  R    rvOKU    TUK     CON  STITU  TIO  V 

OF  TUK   VSITUD  mTJLTHm." 


THIRD  EDITION 


Vol.  IL 


nilCAGO  : 
CALLAGHAN  &  COMPANY 


Copyrigbt  188T 
By  ROBERT  T.  DEVLIU 


Cop/Tight  188T 
By  ROBBRT  T.  DEVLIN 


Copyright  1911 
By  ROBERT  T.  DEVLIN 


I'll 


THE  LAW  OF  DEEDS. 


CHAPTER  XXI. 


REGISTRY  LAWS  OF  THE  SEVERAL  STATES. 


1  576. 

Statutory  provisions. 

603. 

Nebraska. 

577. 

Alabama, 

6(M. 

Nevada. 

578. 

Arizona. 

605. 

New  Hampshire. 

579. 

Arkansas. 

606. 

New  Jersey. 

580. 

California. 

607. 

New  Mexico  Territory. 

581. 

Colorado. 

608. 

New  York. 

582. 

Connecticut 

609. 

North  Carolina. 

583. 

Dakota   North  and   South. 

609a. 

North    Dakota. 

5S4. 

Delaware. 

610. 

Ohio. 

585. 

District  of   Columbia. 

611. 

Oregon. 

586. 

Florida, 

611a. 

Oklahoma. 

587. 

Georgia. 

61Z 

Pennsylvania. 

588. 

Idaho. 

613. 

Rhode  Island. 

589. 

Illinois. 

614. 

South  Carolina. 

589a. 

Indian  Territory. 

614a. 

South  Dakota. 

590. 

Indiana, 

615. 

Tennesec. 

591. 

Iowa. 

616. 

Texas. 

S9Z 

Kansas. 

617. 

Utah. 

593. 

Kentucky. 

6ia 

Vermont 

594. 

Louisiana. 

619. 

Virginia. 

595. 

Maine. 

620. 

Washington. 

596. 

Maryland. 

621. 

West  Virginia. 

597. 

Massachusetts. 

622. 

Wisconsin. 

598. 

Michigan. 

623. 

Wyoming. 

599. 

Minnesota. 

624. 

Effect    of     statutes    giving 

600. 

Mississippi. 

time     to     record     deed- 

601. 

Missouri. 

Valid    from   delivery. 

602. 

Montana. 

(i2^ 

Protection  of  grantee. 

§  576.  Statutory  provisions. — The  statutes  of  the  dif- 
ferent States  are  not  uniform  as  to  the  time  prescribed  within 
which  conveyances  should  be  or  are  required  to  be  recorded. 

1093 


614252 


// 


1094  THE  LAW  OF  DEEDS.  [CIIAP.    XXI. 

In  some  of  the  States,  it  is  provided  by  statute  that  the  regis- 
tration of  a  deed  is  effective  as  constructive  notice  from  the 
time  only  when  it  is  filed  for  record.  In  other  States,  the  stat- 
utes allow  a  purchaser  a  specified  time  after  the  execution 
of  the  deed  in  which  to  have  it  recorded.  The  subject  of 
registration  is  an  important  one,  and  many  decisions  are  based 
alone  upon  the  particular  language  of  the  statute.  For  the 
purpose  of  enabling  the  reader  to  determine  whether  a  de- 
cision is  founded  upon  the  peculiar  phraseology,  or  some  spe- 
cial provision  of  a  statute  of  a  particular  State,  as  well  as  to 
furnish  him  with  an  idea  of  the  reason  for  the  conflict  among 
the  decisions  that  will  frequently  be  found  in  the  various  ques- 
tions arising  from  the  registry  laws,  it  has  been  considered 
advisable  to  give  an  abstract  of  the  statutes  of  the  different 
States  relative  to  the  registration  of  deeds.  With  the  excep- 
tions above  noted,  however,  the  statutes  show  a  general  uni- 
formity. All  have  registry  laws  and  the  tendency  is  toward 
uniformity.  Recent  legislation  tends  to  remove  the  necessity 
for  a  married  woman  acknowleding  a  deed  in  a  manner  differ- 
ent from  that  required  of  an  unmarried  woman.  It  is  not 
our  purpose,  in  the  following  sections,  to  give  all  the  statutory 
provisions  complete,  as  such  a  compilation  would  serve  no 
useful  purpose.  Our  object  is  simply  to  show  the  salient 
points  of  the  statutes  which  the  courts  have  examined  and 
construed  when  deciding  cases  involving  the  registry  laws. 
In  some  instances  a  statute  has  been  given  verbatim,  al- 
though changes  may  have  since  been  made,  when  it  would 
seem  that  decisions  were  based  upon  the  particular  language 
used.  In  such  case  the  date  is  given  when  the  statute  was  in 
force.  Changes  that  have  been  made  are  generaly  to  abolish 
the  provisions  giving  a  specified  time  to  record  conveyances. 
But,  inasmuch  as  many  decisions  have  been  based  upon  former 
statutes,  it  is  important  to  know  their  substance,  and  hence  it 
has  been  deemed  advisable  to  give  them  as  they  were  when 
decisions  founded  upon  them  might  seem  to  be  in  conflict  with 
the  decisions  of  other  States. 


CHAP.  XXI.]    REGISTRY  LAWS  OF  THE  SEVERAL  STATES. 


1095 


§  577.  Alabama. — Unless  recorded  within  a  specified 
time  from  their  date,  all  conveyances  of  unconditional  estates 
and  mortgages,  or  instruments  in  the  nature  of  mortgages  of 
real  property,  to  secure  any  debt  created  at  their  date,  for- 
merly were  void  as  against  purchasers  for  a  valuable  consid- 
eration, mortgagees,  and  judgment  creditors  without  notice.^ 
But  all  other  conveyances  of  real  property,  mortgages,  or 
deeds  of  trust,  to  secure  any  debts  other  than  those  above 
enumerated,  are,  as  to  purchasers  for  a  valuable  consideration, 
mortgagees,  and  judgment  creditors  without  notice,  inopera- 
tive and  void,  unless  recorded  before  the  accrual  of  the  rights 
of  such  persons.  But  all  such  conveyances  are  perfectly  valid 
without  registration  as  between  the  parties  themselves,  and 
against  creditors  whose  claims  have  not  been  put  into  judg- 
ments. Conveyances  must  be  recorded  in  the  county  in  which 
the  land  lies,  in  the  office  of  the  judge  of  probate.  The  con- 
veyance is  operative  as  a  record  from  the  day  on  which  it  is 
delivered  to  the  judge.  And  the  recording  in  the  proper  office 
of  any  deed  or  conveyance  of  property  which  may  be  legally 
admitted  to  record,  operates  as  notice  of  such  conveyance, 
without  any  acknowledgment  or  probate." 

§  578.     Arizona. — Conveyances  are  valid  between  the 
parties  without  registration,  and  are  required  to  be  recorded 

iRev.  Code,  §§  1810-1812.  See  of  Georgia,  24  Ala.  37;  Jordan  v. 
Alabama  Civil  Code,  §  2168,  before  Mead,  12  Ala.  247;  Wyalt  v.  Stew- 
revision  of  1886.  See  Code  of  Ala-  art,  34  Ala.  716;  De  Vendal  v.  Ma- 
bama,  approved  1897,  §  1005.  By  lone,  25  Ala.  272;  Wallis  v.  Rhea, 
corded  within  the  specified  time  or  10  Ala.  451 ;  Boyd  v.  Beck,  29  Ala. 
be  void  as  to  purchasers  for  a  valu-  703;  Bearing  v.  Watkins,  10  Ala. 
able  consideration,  mortgagees  and  20;  Ohio  Life  Ins.  &  Trust  Co.  v. 
judgment  creditors  of  the  original  Ledyard,  8  Ala.  866;  Andrews  v. 
grantee  without  notice.  Burns,    11    Ala.   691;    Center   v.    P. 

8  See    Gray's    Administrators    v.  &  M.  Bank,  22  Ala.  473 ;  Daniel  v. 

Cruise  36  Ala.  559.    See,  also  §  990,  Sorrels,  9  Ala.  436;  Smith  v.  Branch 

Code  of  Alabama,  approved   1897;  Bank  of  Mobile,  21  Ala.  125;  Rev. 

also   §§   987.   991;    Coster   v.   Bank  Code,  §  1810,  et  seq;  3  Rev.  Stats., 

§    1007    the    defeasance    of    an    ab-  §§  2601,  2602. 
solute  conveyance  must  also  be  re- 


1096  THE  LAW  OF  DEEDS.  [CHAP.   XXL 

in  the  county  in  which  the  land  is  situated.  The  record,  when 
duly  made,  imparts  notice  to  all  of  the  contents  of  the  deed 
from  the  time  it  is  delivered  to  the  recorder,  and  all  subse- 
quent purchaser  and  mortgagees  are  considered  purchasers 
with  notice.' 

§  579.  Arkansas. — Every  deed  or  instrument  affecting 
the  title  in  law  or  in  equity  to  any  property  which  is  entitled 
to  record,  is  constructive  notice  to  all  persons  from  the  time 
such  conveyance  is  filed  for  record  in  the  office  of  the  re- 
corder of  the  proper  county.  The  recorder  is  required  to  in- 
dorse on  the  instrument  the  precise  timt  when  it  was  filed  for 
record.*  No  conveyance  is  good  or  valid  against  subsequent 
purchasers  for  valuable  consideration,  without  actual  notice, 
or  against  any  creditor  of  the  grantor,  obtaining  a  judgment 
or  decree,  which  may  be  a  lien  upon  the  real  estate  described 
in  such  conveyance  unless  such  conveyance  shall  be  filed,  after 
acknowledgment,  for  record  in  the  recorder's  office  of  the 
county  where  such  land  is  situated.'  A  mortgage  is  a  lien 
on  the  mortgaged  property  from  the  time  the  same  is  filed 
in  the  recorder's  office,  and  not  before.* 

§  580.  California. — A  deed  is  conclusive  against  the 
grantor  and  all  persons  subsequently  claiming  under  him,  ex- 
cept purchasers  or  encumbrancers  acquiring,  in  good  faith 
and  for  a  valuable  consideration,  a  title  or  lien  by  an  instru- 
ment which  is  first  duly  recorded."'  A  conveyance  is  con- 
structive notice  of  the  contents  to  subsequent  purchasers  and 

8  Rev.   Stats.   1887 ;   Comp.   Laws  e  Dig.  of  Stats.  §  656,  et  seq.    See 

1877,  §§  2268,  2269;  Rev.  Stat.  1891,  Jacoway  v.  Gault,  20  Ark.   190,  7Z 

par.  736.  Am.   Dec.  494.     See,  also,   Sandeli 

*  See  §§  6370-6380  Digest  of  the  &  Hill's  Dig.   1894. 

Statutes   of   Arkansas,   of    Sandels  Text  galley  179 

and  Hill.  ^  Qvil  Code,  §  1107. 

5  See  Hamilton  v.  Foulkes,  16 
Ark.  340;  Byers  v.  Engles,  16  Ark. 
543h 


CHAP.  XXI.]   REGISTRY  LAWS  OF  THE  SEVERAL  STATES. 


1097 


mortgagees  from  the  time  it  is  filed  with  the  recorder  for 
record.'  A  deed  is  void  against  subsequent  purchasers  or 
mortgagees  of  the  same  property,  or  any  part  thereof,  in  good 
faith  and  for  value,  whose  conveyances  are  first  duly  record- 
ed.' Unrecorded  instruments,  however,  are  valid  between 
the  parties  and  those  having  notice.*  And  powers  of  attor- 
ney when  recorded  can  be  revoked  only  by  an  instrument  re- 
corded in  the  same  office  in  which  the  power  of  attorney  is  re- 
corded." An  assignment  of  a  mortgage  may  be  recorded,  and 
the  record  operates  as  notice  to  all  persons  subsequently  ac- 
quiring title  from  the  assignor.'  When  a  deed  absolute  in 
form  is  intended  as  a  mortgage,  or  to  be  defeasible  on  the 
performance  of  certain  conditions,  the  deed  is  not  defeated  or 
affected  as  against  any  other  persons  than  the  grantee,  his 
heirs  or  devisees,  or  persons  having  actual  notice,  unless  the 
defeasance  is  recorded  in  the  office  of  the  recorder  of  the  coun- 
ty where  the  land  lies.*  The  recording  of  an  assignment  of 
a  mortgage  is  not  of  itself  notice  to  the  mortgagor  so  as  to 
invalidate  any  payment  made  by  him  to  the  mortgagee.' 


•Civil  Code,  §  1213. 

•  Civil  Code,  §  1214. 
1  Civil  Code,  §  1217. 
"Civil  Code,  §  1216. 
•Civil  Code,  §  2934. 
♦Civil    Code,    §    2950. 

•  Civil  Code,  §  2935.     Sec,  gener- 
ally,   on    the    subject    of    registra- 
tion, Bird  v.  Dennison,  7  Cal.  297 
Woodworth  v.  Guzman,  1  Cal.  203 
Landers    v.    Bolton,    26    Cal.    393 
Jones  V.  Marks,  47  Cal.  242;   Fo- 
garty  v.  Sawyer,  23  Cal.  570;  Vas- 
sault  V.  Austin,  36  Cal.  691;   Pat- 
terson   v.    Donner     48    Cal.    369; 
Smith  V.  Yule,  31  Cal.  180,  89  Am. 
Dec.  167;  Odd  Fellows'  Sav.  Bank 
V.  Banton,  46  Cal.  603;  Lawton  v. 
Gordon,    Z7    Cal.    202;    Hunter    v. 
Watson,  12  Cal.  363,  7Z  Am.  Dec. 


543 ;  O'Rourke  v.  O'Connor,  39  Cal. 
442;  Title  etc.  Co.  v.  Kerrigan,  150 
Cal.  289,  8  L.R.A.(N.S.)  682,  88 
Pac.  356,  119  Am.  St.  Rep.  199; 
Bothin  v.  Cal.  etc.  Co.,  153  Cal.  718, 
95  Pac.  500;  Stanislaus  etc.  Co.  v. 
Bachman,  152  CaL  716,  15  L.R.A. 
(N.S.)  359,  93  Pac.  858;  Edwards 
V.  Grand,  121  Cal.  254,  53  Pac.  796; 
Glas  v.  Glas,  114  Cal.  566,  46  Pac. 
667,  55  Am.  St.  Rep.  90;  Snodgrass 
V.  Ricketts,  13  Cal.  359;  Thompson 
v.  Pioche,  44  Cal.  508;  Mahoney  v. 
Middleton,  41  Cal.  41;  Fair  v. 
Stevenot,  29  Cal.  486;  Wilcoxson 
V.  Donner,  49  Cal.  193;  Frey  v. 
Clifford,  44  Cal.  335;  Dennis  v. 
Burritt,  6  Cal.  670;  Long  v.  Dol- 
larhide,  24  Cal.  218;  Packard  v. 
Johnson,  51  Cal.  545;  McMinn  y. 


1098 


THE  LAW  OF  DEEDS.  [CHAP.   XXL 


§  581.  Colorado.— Conveyances  are  recorded  in  the  of- 
fice of  the  recorder  of  the  county  in  which  the  land  is  situated, 
and  take  effect  as  to  subsequent  bona  Me  purchasers  and  en- 
cumbrancers by  mortgage,  judgment,  or  otherwise,  not  hav- 
ing notice  thereof  from  the  time  of  filing  for  record,  and  not 
before.^  Deeds  and  other  conveyances  are  deemed,  from  the 
time  of  filing  for  record,  notice  to  subsequent  purchasers  or  en- 
cumbrancers, though  not  acknowledged  or  proven  according 
to  law.  But  neither  they  nor  the  record  can  be  read  m  evi- 
dence, unless  such  coveyances  are  subsequently  acknowledged 
or  proved  according  to  law,  or  their  execution  be  proved  in  the 
same  manner  as  other  writings^  The  laws  of  Colorado  now 
provide  also  for  the  "Torrens  system"  of  registration  of  land 
titles  in  lieu  of  recording.' 

§  582.  Connecticut.— No  conveyance,  unless  recorded 
in  the  records  of  the  town  in  which  the  land  is  situated,  is 
effectual  against  any  other  person  than  the  grantor 
and  his  heirs.  The  town  clerk  is  required  to  note  on  the  deed 
the  day  and  year  when  he  received  it.  When  once  received  it 
shall  not  be  delivered  up  again  until  it  is  recorded.  If  a  deed 
is  executed  under  a  power  of  attorney,  the  latter  must  be  re- 
corded with  the  deed.  When  a  conveyance  of  land  lying  in 
two  or  more  towns  is  recorded  in  one  or  more  of  such  towns, 
and  is  afterward  lost,  a  certified  copy  of  the  record  may  be 
recorded  in  the  other  towns,  and  have  the  same  effect  as  a 
record  of  the  original.  "An  unacknowledged  deed,  and  any 
instrument  intended  as  a  conveyance  of  land,  but  which,  by 
reason  of  a  formal  defect,  shall  operate  only  as  a  conveyance 
of  an  equitable  interest  in  such  lands,  and  contracts  for  the 
conveyance  of  lands,  or  of  any  interest  therein,  and  all  in- 

O'Connor,  27  Cal.  238;  Call  v.  Hast-  ^  Gen.  Laws,   §   178. 

ings,   3    Cal.    179;    Chamberlain    v.  8  Laws  1903,  pp.  311,  et  seq;  Mills, 

Bell,  7  Cal.  292,  68  Am.  Dec.  260;  Annotated  Statutes  Colo.  1891-1905, 

McCabe  v.  Grey,  20  Cal.  509.  vol.  3,  page  197,  et  seq. 
6  Gen.  Laws,  §  176  (eh.  18,  §  17). 


CHAP.  XXI.]    REGISTRY  LAWS  OF  THE  SEVERAL  STATES.  1099 

struments  by  which  an  equitable  interest  in  lands  is  created, 
in  which  such  lands  are  particularly  described,  may  be  record- 
ed in  the  records  of  the  town  in  which  such  lands  are;  and 
such  record  shall  be  notice  to  all  the  world  of  the  equitable 
interest  thus  created."  All  conveyances  of  which  the  grantor 
is  ousted  by  the  possession  of  another  are  void  unless  made 
to  the  person  in  actual  possession.^  But  the  possession  by  a 
mortgagee  is  not  considered  as  being  adverse.*  Although  a 
deed  may  not  be  recorded  till  after  the  death  of  the  grantor, 
it  is  good  as  against  a  purchaser  from  his  heir.*  An  action 
lies  against  the  clerk  for  delivering  up  a  deed  before  it  is  re- 
corded.' 

§  583.  Dakota,  North  and  South. — Since  the  issuance 
of  the  first  edition,  Dakota  Territory  has  been  divided  into 
North  and  South  Dakota,  and  both  have  been  admitted  as 
States.  For  the  laws  of  these  States  relating  to  the  registry 
laws  see  the  sections  on  North  Dakota  and  South  Dakota. 

§  584.  Delaware. — Deeds  shall  be  recorded  in  the  re- 
corder's office  for  the  county  in  which  the  land  is  situated,  if 
lodged  in  such  office  within  one  year  after  the  day  of  the  seal- 
ing and  delivery  of  such  deed.*  The  registration  of  a  deed 
in  one  county  has  effect  only  to  lands  mentioned  in  the  deed 

•Gen.  Stats.  §§  2961-2966;  Gen'l  Heirs  v.  Hall,  2  Root,  383;  Dicken- 

Stats.   of    Conn.   Rev.    of    1902,   §§  son  v.  Glenney,  27  Conn.  104;  Sum- 

4036,  4038,  4039,  4042.  mer  v.  Rhoda,  14  Conn.  135;  Wat- 

iSanford  v.   Washburn,  2  Root,  son  v.  Wells,  5  Conn.  468;  Carter 

499.     See,  generally,  Ray  v.  Bush,  v.  Champion,  8  Conn.  549,  21  Am. 

1  Root,  81 ;  Franklin  v.  Cannon,  1  Dec.  695. 

Root,   500 ;   Hartmeyer  v.   Gates,   1  *  Hill  v.  Meeker,  24  Conn.  211. 

Root,  61 ;  Beers  v.  Hawley,  2  Conn.  '  Wells    v.    Hutchinson,    2   Root, 

467;  Hine  v.  Robbins,  8  Conn.  342;  85.     See  Hine  v.  Robbins,  8  Conn. 

Wheaton   v.    Dyer,    15    Conn.    307;  342. 

Hinman  v.   Hinman,  4  Conn.   575;  *  Laws,  Rev.  Code,  p.  504,   S   14. 

Welch  V.  Gould,  2  Root,  287;  Judd  But  see  the  change  made  in  Dela- 

f.    Woodrug,   2   Root,    298;    Hall's  ware  by  act,  vol  17,  c.  213. 


1100  THE  LAW  OF  DEEDS.  [CHAP.  XXI. 

situated  in  such  county/  If  a  deed  is  not  recorded  in  the  prop- 
er office  within  one  year  after  the  day  of  the  seahng  and 
delivery,  "it  shall  not  avail  against  a  subsequent  fair  creditor, 
mortgagee,  or  purchaser  for  a  valuable  consideration,"  unless 
it  shall  be  shown  that  the  creditor  when  giving  the  credit,  or 
the  mortgagee  or  purchaser  when  advancing  the  considera- 
tion, had  notice  of  such  deed.*  A  purchase  money  mortgage 
recorded  within  sixty  days  after  its  execution  has  preference 
over  any  judgment  against  the  mortgagor,  or  any  other  lien 
created  by  him,  although  the  same  may  be  of  a  date  prior  to 
the  mortgage.'  Where  there  is  an  absolute  conveyance  and 
a  defeasance  or  reconveyance,  the  person  to  whom  such  con- 
veyance is  made  shall  cause  to  be  indorsed  thereon  and  re- 
corded with  it,  a  note  stating  that  there  is  such  a  defeasance 
and  its  general  purport,  else  the  recording  of  such  conveyance 
shall  be  of  no  effect;  and  such  defeasance  must  be  duly  ac- 
knowledged and  recorded  in  the  recorder's  office  of  the  county 
in  which  the  land  lies,  within  sixty  days  after  the  day  of  mak- 
ing the  same,  or  it  shall  be  of  no  avail  against  a  fair  creditor, 
mortgagee,  or  purchaser  for  a  valuable  consideration,  from 
the  person  to  whom  the  conveyance  is  made,  unless  such  per- 
sons had  notice  at  the  time  of  giving  credit  or  parting  with  the 
consideration.'  Though  the  acknowledgment  to  deeds  may  be 
defective,  record  of  such  deeds  if  dated  prior  to  January  1, 
1880,  duly  signed  and  sealed  by  the  grantor,  will  be  admitted 
in  evidence  as  valid.' 

§  585.  District  of  Columbia. — Deeds,  contracts,  and 
other  instruments  in  writing  affecting  the  title  or  ownership 
of  real  estate,  when  duly  acknowledged  and  certified  ^  are 
recorded  in  the  office  of  the  recorder.     Under  the  old  law, 

6  Laws,  Rev.  Code,  p.  503,  §  IS.  »Dev.  Laws,  1893,  p.  1116. 

8  Laws,  Rev.  Code,  p.  504,  §  17.  i  Code   of   Laws   for   District   of 

'Laws,  Rev.  Code,  p.  505,  §  21.  Columbia   as   amended   to   1905,   p. 

8  Laws,  Rev.  Code,  1874,  ?.  504,  117. 
§  1& 


CHAP.  XXI.]   REGISTRY  LAWS  OF  THE  SEVERAL  STATES.  1101 

deeds  took  effect  as  to  all  persons  from  the  time  of  acknowl- 
edgement or  proof,  if  recorded  within  a  specified  time.  Un- 
der the  revised  law,  however,  deeds  and  deeds  of  trust  and 
mortgages,  and  all  other  conveyances,  take  effect  as  against 
subsequent  purchasers  for  a  valuable  consideration  without 
notice,  and  creditors,  and  mortgagees  without  notice,  only 
from  the  time  that  such  deed,  deed  of  trust,  mortgage,  or 
other  conveyance,  shall  have  been  delivered  to  the  recorder 
for  record  after  its  proper  acknowledgment.  When  two  or 
more  deeds  of  the  same  property  are  made  to  bona  Hde  pur- 
chasers for  value  without  notice,  the  deed  or  deeds  first  re- 
corded according  to  law  are  preferred.* 

§  586.  Florida. — No  conveyance,  transfer  or  mortgage 
of  real  property  or  any  interest  therein,  nor  any  lease  for  a 
term  of  one  year  or  longer,  is  good  or  effectual  in  law  or  in 
equity  against  creditors  or  subsequent  purchasers  for  a  val- 
uable consideration  and  without  notice,  unless  it  is  recorded 
in  the  office  assigned  by  law  for  that  purpose.  No  convey- 
ance of  any  character  made  by  virtue  of  a  power  of  attorney, 
is  good  or  effectual  in  law  or  in  equity  against  creditors  or 
subsequent  purchasers  for  a  valuable  consideration  and  with- 
out notice,  unless  the  power  of  attorney  is  recorded  before 
the  accrual  of  the  right  of  such  creditor  or  subsequent  pur- 
chaser.' 

§  587.  Georgia. — "Every  deed  conveying  lands  shall 
be  recorded  in  the  office  of  the  clerk  of  the  superior  court 
where  the  land  lies,  within  one  year  from  the  date  of  such 
deed.  On  failure  to  record  within  this  time,  the  record  may 
be  made  at  any  time  thereafter;  but  such  deed  loses  its  prior- 
ity over  a  subsequent  deed  from  the  same  vendor,  recorded  in 

«  Code  of  Laws  for  the  District  •  Sec.  2480,  page  980,  GenT  Stats. 

of  Columbia  as   amended  to   1905,      of  Florida,  1906. 
pp.  108,  109,  112. 


1102  THE  LAW  OF  DEEDS.  [CHAP.   XXI. 

time,  and  taken  without  notice  of  the  existence  of  the  first."  * 
A  registered  deed  is  admitted  in  evidence  without  further 
proof,  unless  the  grantor,  or  one  of  his  heirs,  or  the  adverse 
party  in  the  suit,  will  file  an  affidavit  that  the  deed  to  the 
best  of  his  knowledge  and  belief  is  a  forgery,  when  the  court 
will  arrest  the  cause  and  try  the  issue  as  to  the  genuineness  of 
such  alleged  deed.^  A  mortgage  must  be  recorded  within 
three  months  from  its  date,  and  if  not  so  recorded,  while  re- 
maining valid  as  against  the  mortgagor,  it  is  postponed  to  all 
other  liens  created  or  obtained,  or  purchases  made  prior  to  the 
time  the  mortgage  is  actually  recorded.  If  the  purchaser  has 
notice  of  the  prior  unrecorded  mortgage  the  lien  of  such  mort- 
gage is  good  as  against  him.*  A  mortgage  which  is  recorded 
in  an  improper  office,  or  without  due  acknowledgment,  or 
recorded  so  defectively  as  not  to  give  notice  to  a  prudent  in- 
quirer, is  not  notice  to  subsequent  &c»wa  iide  purchasers  or  en- 
cumbrancers. But  the  record  is  not  vitiated  by  a  mere  formal 
mistake.'  Though  a  mortgage  is  not  recorded  within  the 
time  prescribed,  it  is  notice  to  all  the  world  from  the  time  at 
which  it  is  recorded.'  The  law  as  above  stated  on  which 
many  decisions  are  based,  has  been  modified  by  the  act  of 
October  1,  1889,  providing  that  conveyances  take  effect  only 
from  the  time  at  which  they  are  filed  for  record  in  the  clerk's 
office  as  against  third  persons  who  act  in  good  faith  and  with- 
out notice,  and  the  clerk  is  required  to  note  on  the  instrument 
the  day  and  hour  when  it  was  filed  for  record. 

*Code,    1873    (Irwin,    Lester    &  Semmes,  24  Ga.  305;  Wyatt  v.  Elam 

Hill),  §  2705;  Code  1883,  §  2705.  19  Ga.  335;  Williams  v.  Adams,  43 

6  Code,  1873,  §  2712.    See  Benson  Ga.  407 ;  Lee  v.  Cato,  27  Ga.  637, 

V.  Green,  80  Ga.  230.  7Z  Am.  Dec.  746;  Herndon  v.  Kim- 

6  Code,   1873,  §   1957.  ball,  7  Ga.  432,  50  Am.  Dec.  406; 

'  Code,  1873,  §  1959.  Burkhalter  v.  Ector,  25  Ga.  55  ;  Wil- 

8  Code,  1873,  §  1960;  Code,  1883,  §  Hams  v.  Logan,  32  Ga.  165;  Riishin 

1960.     See,  generally,  on  the  regis-  v.  Shilds,  11  Ga.  6Z6,  56  Am.  Dec. 

try  acts,  Felton  v.  Pitman,  14  Ga.  436;  Andrews  v.   Mathews.  59  Ga. 

536;  Allen  v.  Holding,  29  Ga.  485,  4€6;  Myers  v.  Picquet,  61  Ga.  260. 
Sup.  Ct  32  Ga.  418;  Hardaway  v. 


CHAP.  XXI.]   REGISTRY  LAWS  OF  THE  SEVERAL  STATES.  1  103 

§  588.  Idaho. — Every  conveyance  to  operate  as  notice 
to  third  persons  must  be  recorded  in  the  office  of  the  recorder 
of  the  county  in  which  the  land  hes,  but  is  vahd  between  the 
parties  without  such  record.  Every  conveyance  imparts  no- 
tice to  all  persons  of  its  contents  from  the  time  the  same  is 
filed  with  the  recorder  for  record,  and  subsequent  purchasers 
are  deemed  to  purchase  with  notice.  Every  conveyance  not 
so  recorded  is  void  against  subsequent  purchasers  in  good 
faith  and  for  a  valuable  consideration,  whose  conveyances  are 
first  duly  recorded.'  A  revocation  of  a  recorded  power  of 
attorney  shall  not  be  valid  until  such  revocation  is  deposited 
for  record  in  the  same  office  in  which  the  power  of  attorney 
is  recorded.^ 

§  589.  Illinois. — Deeds,  mortgages,  and  other  convey- 
ances authorized  to  be  recorded,  take  effect  from  the  time  they 
are  filed  for  record  and  not  before,  as  to  creditors  and  pur- 
chasers without  notice.  Although  deeds  may  not  be  acknowl- 
edged according  to  law,  they  are  deemed,  from  the  time  of 
being  filed  for  record,  notice  to  subsequent  purchasers  and  en- 
cumbrancers, but  they  are  not  entitled  to  be  read  in  evidence, 
unless  their  execution  be  proved  in  the  mode  required  by  the 
rules  of  evidence,  so  as  to  supply  the  defects  of  such  acknowl- 
edgment.* 

§  589a.  Indian  Territory. — With  the  exception  of  the 
Quapaw  Agency  the  title  to  land  is  still  in  the  United  States, 
and  the  different  Indian  tribes  hold  their  reservations  in  com- 
mon under  patent  from  the  Federal  Government.  Allotments 
have  been  taken  by  nearly  all  the  affiliated  tribes  of  the  Qua- 

9  Rev.  Laws,   §§   24-26;   §§  2453,  28;   Rev.   Stats.   1877,  c  30,   §§  30, 

2456,  2460,  2457,  Idaho  Codes,  Civil  31;  Rev.  Stats,  by  Hurd  (1880),  p. 

Code,  1901.  271,    §    30;    Rev.    Stats,    by    Hurd 

iRev.   Laws,   §  28;   §  2459,   Ida-  (1883),  p.  284,  §  2831.     See  Hurd, 

ho  Codes,  Civil  Code,  1901.  371,  et  seq.    See  p.  944,  et  seq.  Starr 

•Rev.  Stats.   1845,  p.   109,  §§  23,  and  Curtis's  Ann.  IlL  Stats. 


1104 


THE  LAW  OF  DEEDS. 


[chap.  XXI. 


paw  Agency,  and  with  the  exception  of  lots  in  this  agency, 
and  in  the  townsite  of  Miami,  citizens  of  the  United  States 
cannot  own  land  but  must  hold  as  tenants  of  some  Indian 
landlord. 

§  590.  Indiana. — Conveyances  arc  recorded  in  the  re- 
corder's office  of  the  county  where  the  land  lies,  and  if  not 
recorded  within  forty-five  days  from  their  execution  they  are 
fraudulent  and  void  as  against  any  subsequent  purchaser, 
lessee,  or  mortgagee  in  good  faith  and  for  a  valuable  consid- 
eration.' When  a  deed  absolute  in  form  is  intended  as  a 
mortgage,  the  original  deed  is  not  defeated  as  against  any  per- 
son other  than  the  maker,  or  his  heirs  or  devisees,  or  persons 
having  actual  notice,  unless  the  defeasance  shall  have  been 
recorded  according  to  law  within  ninety  days  after  the  date 
of  the  deed.*  Each  recorder  is  required  to  keep  a  book,  each 
page  of  which  shall  be  divided  into  five  columns,  with  the 
following  heads: — 


Date  of 
Reception. 


Names  of 
Grantors. 


Names  of 
Grantees. 


Description 
of  Lands. 


Vol.  and  page 
where  recorded. 


The  recordr  is  required  to  enter  in  this  book  all  deeds  left 
with  him  for  record,  noting  in  the  first  column  the  day  and 
hour  the  deed  was  received,  and  the  other  particulars  in  the 
other  columns.  Every  deed  is  considered  as  recorded  at  the 
time  so  noted.* 

§  591.  Iowa. — Deeds  are  recorded  in  the  county  in 
which  the  land  lies,  and  are  of  no  validity  as  against  subse- 


'  See  Reasoner  v.  Edmundson,  5 
Ind.  393;  Wright  v.  Shepherd,  47 
Ind.  176,  179;  Faulkner  v.  Ovcrturf, 
49  Ind.  265;  Treslcr  v.  Tresler,  38 
Ind.  282,  285;  Brannan  v.  May,  42 
Ind.  92,  96;  Bums'  Ann.  Ind.  Stat?. 
Rev.  of  1901,  vol.  2,  §  3350. 

*  Stats.  Revision  of  1876,  p.  36S, 


§  17;  Ind.  Rev.  Stats.,  S  2931; 
Burns'  Ann.  Ind.  Stats.,  Rev.  of 
1901,  vol.  2,  §  3351. 

»  Stats.  Revision  of  1876,  p.  367, 
§  29;  1881,  §  2931.  See,  also,  Rev. 
Stats.  1888;  Burns'  Ann.  Ind  Stats., 
Rev.  of  1901,  vol  2,  S  337L 


CHAP.'  XXI.]   REGISTRY  LAWS  OF  THE  SEVERAL  STATES.  1105 

quent  purchasers  without  notice,  unless  so  recorded.  To  en- 
title tliem  to  registration  they  must  be  duly  acknowledged  or 
proved.® 


§  592.  Kansas. — Deeds  are  recorded  in  the  the  office 
of  the  register  of  deeds  of  the  county  in  which  the  real  es- 
tate is  situated.  A  deed  imparts  notice  to  all  persons  of  its 
contents  from  the  time  it  is  filed  with  the  register  of  deeds  for 
record,  subsequent  purchasers  being  deemed  to  purchase  with 
notice.'  A  deed  is  not  valid  except  as  between  the  parties 
thereto,  and  such  as  have  actual  notice,  until  it  is  deposited 
with  the  register  of  deeds  for  record.'  A  power  of  attorney 
should  be  recorded  previous  to  the  sale  or  the  execution  of 
the  deed  made  under  it,  and  when  once  recorded  shall  not  be 
deemed  to  be  revoked  by  any  act  of  the  party  by  whom  it  was 


«  Code  of  1873,  §§  1941,  1942,  and 
Rev.  Code  of  1880,  by  Miller 
(1880).  §  1941;  1884,  p.  1941,  §  194. 
See,  also,  §  2925,  Supp.  Code  o£ 
Iowa,  annotated.  On  the  question 
of  notice  and  subsequent  purclias- 
ers,  see  Miller  v.  Bradford,  12 
Iowa,  14;  Stewart  v.  Huff,  19  Iowa, 
557;  Calvin  v.  Bowman,  10  Iowa, 
529;  Suiter  v.  Turner,  10  Iowa, 
517;  Willard  v.  Cramer,  36  Iowa, 
22;  Gower  v.  Doheney,  33  Iowa, 
36;  Scoles  v.  Wilsey,  11  Iowa,  261; 
Brinton  v.  Seevers,  12  Iowa,  389; 
Bostwick  v.  Powers,  12  Iowa,  456; 
Breed  v.  Conley,  14  Iowa,  269,  81 
Am.  Dec.  485 ;  Haynes  v.  Seacrest, 
13  Iowa,  455;  Stewart  v.  HufT,  19 
Iowa,  557;  Dargin  v.  Bceker,  10 
Iowa,  571 ;  Bringholff  v.  Munzen- 
raaier,  20  Iowa,  513;  Koons  v. 
Grooves,  20  Iowa,  373 ;  Gardner  v. 
Cole,  21  Iowa,  205.  See,  also,  Rea 
Y.  Wilson,  112  la.  517;  Higgins  v. 
r>eeds,  VoL  II.— 70 


Dennis,  104  la.  605;  Sherod  v. 
Ewell,  104  la.  253. 

■^  See  Simpson  v.  Mundee,  3  Kan. 
172;  Brown  v.  Simpson,  4  Kan.  76; 
Claggett  v.  Crall,  12  Kan.  397; 
Wickersham  v.  Zinc  Co.,  18  Kan. 
487,  26  Am.  Rep.  784;  §§  1670, 
1671,  Gen'l  Stats,  of  Kan.,  1909. 

8  Comp.  Laws  (Dassler),  p.  212, 
§  1044.  See,  also.  Gen,  Stats.  1134 
See  Coon  v.  Browning,  10  Kan.  85; 
Simpson  v.  Mundee,  3  Kan.  172; 
Gray  v.  Ulrich,  8  Kan.  112;  Swarts 
V.  Stees,  2  Kan.  236,  85  Am.  Dec. 
588;  School  District  v.  Taylor,  19 
Kan.  287;  Johnson  v.  Clark,  18 
Kan.  157,  164;  Jones  v.  Lapham, 
15  Kan.  140;  §  1672,  G^n'l  Stats, 
of  Kan.  1909. 

8  Comp.  Laws  (Dassler),  §§  1046, 
1047.  See  Gen.  Stats.  1134;  §S 
1673,  1674,  1675,  Gen'l  Stats,  of 
Kan.,  1909, 


1106  THE  LAW  OF  DEEDS.  [CHAP.   XXI. 

made,  until  the  instrument  of  revocation  is  filed  in  the  re- 
corder's office  for  record.^ 

§  593.  Kentucky. — Where  a  conveyance  made  by  vir- 
tue of  a  power  is  required  to  be  recorded  to  make  it  valid 
against  creditors  and  purchasers,  the  power  must  be  recorded 
in  the  same  manner.^  Where  the  power  of  attorney  is  not 
recorded,  the  registration  of  the  deed  will  not  operate  as  con- 
structive notice.^  ''Deeds  made  by  residents  of  Kentucky, 
other  than  deeds  of  trust  and  mortgages,  shall  not  be  good 
against  a  purchaser  for  a  valuable  consideration,  not  having 
notice  thereof,  or  any  creditor,  excep*-  from  the  time  the  same 
shall  be  legally  lodged  for  record,  unless  the  same  be  so  lodged 
within  sixty  days  from  the  date  thereof.  If  made  by  persons 
residing  out  of  Kentucky,  and  in  the  United  States,  within 
four  months;  if  out  of  the  United  States,  within  twelve 
months."  '  Although  a  deed  be  not  filed  for  record  within 
eight  months,  it  is  still  good  against  a  subsequent  purchaser 
with  notice,  and  if  the  purchaser  be  a  married  woman,  notice 
to  her  husband  is  likewise  notice  to  her.*  Instruments  should 
be  recorded  in  the  county  where  the  land  or  the  greater  part 
thereof  may  be.^ 

§  594.  Louisiana. — Conveyances,  while  valid  between 
the  parties  and  their  heirs,  are  void  as  to  third  persons,  un- 
less publicly  inscribed  on  the  records  of  the  parish,  and  they 
become  operative  as  to  such  persons  from  the  time  they  are 
filed  for  record.^  For  the  purpose  of  rendering  a  search  for 
mortgages  for  a  period  further  back  than  ten  years  unneces- 

iGen.    Stats.    1873     (Bullock    &  1893.     See  Acts   1893,  c.   186,  §  7; 

Johnson),  p  256,  §  13;  Ky.  Stats.,  Stats.  1894,  §  496;  Ky.  Stats.  1903, 

1903,  §  499.  §  496. 

2  Graves  v.  Ward,  2  Duval,  301.  *  Bennett  v.  Tetherington,  6  Bush, 

3  Gen.   Stats.   1873,  p.  257,   §   14;  192.     See,  also,   Ky.   Stats.,  §  494. 
Gen.  Stats.  1883,  p.  257,  §  14.     But  6  Ky.  Stats.  1903,  §  495. 

this    distinction    was    abolished    in  ^  Rgy^  Code,  §  2266. 


CHAP.  XXI.]    REGISTRY  LAWS  OF  THE  SEVERAL  STATES.  1107 

sary,  it  is  required  that  before  the  expiration  of  this  time  the 
inscription  shall  be  renewed.' 

§  595.  Maine. — A  deed  is  not  effectual  as  against  any 
person  except  the  grantor,  his  heirs  and  devisees,  and  persons 
having-  actual  notice,  unless  it  is  recorded.*  Conveyances  of 
the  right,  title  or  interest  of  the  grantor,  if  duly  recorded,  are 
as  effectual  against  prior  unrecorded  conveyances  as  if  they 
purported  to  convey  an  actual  title.^  A  deed  absolute  in  form 
cannot  be  defeated  by  a  defeasance,  as  against  any  other  per- 
son than  the  maker,  his  heirs  and  devisees,  unless  such  de- 
feasance is  recorded  in  the  same  office  as  the  deed.^ 

§  595.  Maryland. — Deeds  must  be  recorded  within  six 
montlis  from  their  date  in  the  county  in  which  the  land  lies, 
and  when  it  lies  in  more  than  one  county,  or  the  city  of  Bal- 
timore and  a  county,  then  in  all  the  counties  in  which  it  is  sit- 
uated.^ Every  deed,  after  due  acknowledgment  and  regis- 
tration, takes  effect  as  between  the  parties  from  its  date,  and 
no  deed  is  valid  for  the  purpose  of  passing  title,  unless  ac- 
knowledged and  recorded  as  provided  by  statute.^  When 
there  are  two  or  more  deeds  for  the  same  land,  the  deed  first- 
recorded,  according  to  law,  is  preferred,  if  made  bona  fide  and 
upon  a  good  and  valuable  consideration.*     If  the  recording 

'Rev.   Code,   §   3342.     See,   also,  29  Me.   140;   Butler  v.  Stevens,  26 

Ky.  Stats.,  §  494.  Me.    484;    Roberts    v.    Bourne,    23 

8  Rev.    Stats.    1871,   p.    560,    §   8;  Me.    165,   39   Am.   Dec.   614. 

Rev.   Stats.  1883,  p.  604,  §  8;  Rev.  ^  Rev.  Stats.  Maine,  1903,  p.  658. 

Stats    Maine,    1903,    p.    658.      See  i  Rev.    Stats.    1871,   p.   560,   §   9; 

Merrill    v.    Ireland,    40    Me.    569;  Rev.  Stats.  Maine,  1903,  p.  658. 

Lawrence    v.    Tucker.    7    Me.    195;  2  Rev.  Code,  §  16. 

Porter  v.  Sevey,  43  Me.  519;  Kent  ^R^.v.  Code,  §§  17,  18.     See  Byles 

V.   Plummer,  7   Me.  464;   Goodvi^in  v.   Tome,  39   Md.  461;    Hoopes   v. 

V.  Cloudman,  43  Me.  577;  Pierce  v.  Knell,  31   Md.  550;  Building  Assn. 

Taylor,    23    Me.    246;    Rackleff    v.  v.    Willson,   41    Md.    514;    Cooke's 

Norton.     19     Me.    274;     Hanly    v.  Lessee  v.  Kell,  13  Md.  469. 

Morse,  32  Me.  287;  Veazic  v.  Park-  *  Rev.   Code,   §    19. 
er,  23  Me.  170;  SpotTord  v.  Weston, 


1108  THE  LAW  OF  DEEDS.  [CHAP.  XXI. 

officer  should  die,  and  during  the  interim  between  his  death 
and  the  quaHfication  of  his  successor  the  time  for  recording  a 
deed  should  expire,  the  successor  of  the  deceased  clerk  shall 
record  the  same  at  any  time  within  one  month  after  his  quali- 
fication, and  such  record  will  have  the  same  effect  as  if  the 
deed  were  recorded  within  the  prescribed  time.  The  succeed- 
ing clerk  shall,  however,  indorse  thereon  the  time  of  the  death 
of  the  former  clerk,  and  the  date  of  his  own  qualification,  and 
this  indorsement  shall  be  recorded  with  the  deed.^  Convey- 
ances, except  deeds  or  conveyances  by  way  of  mortgages,  may 
be  recorded  after  the  time  prescribed  by  statute,  and  when  so 
recorded,  have,  as  against  the  grantor,  his  heirs,  or  executors, 
and  against  all  purchasers  with  notice  and  against  creditors, 
who  shall  become  so  after  the  recording  of  such  conveyance, 
the  same  effect  as  if  recorded  within  the  prescribed  time.® 
Where  possession  is  taken,  a  deed  after  being  recorded 
(though  not  recorded  within  six  months),  has  against  all  per- 
sons from  the  time  of  taking  possession,  the  same  effect  as  if 
recorded  in  proper  time ;  '  but  as  against  all  creditors  who  have 
become  so  before  the  recording  of  the  deed,  and  without  no- 
tice of  its  existence,  it  has  effect  only  as  a  contract  to  con- 
vey.* 

§  597.  Massachusetts. — Deeds  are  not  valid  as  against 
persons  other  than  the  grantor,  his  heirs  and  devisees,  and 
persons  having  actual-  notice,  unless  they  are  recorded  in  the 

6  Rev.  Code,  §  21.  Phelps,  40  Md.  97;  Nelson  v.  Hag- 

8  Rev.    Code,    §   22.  erstown   Bank,   27   Md.   51;   Lester 

'Jlev.  Code,  §  23.  v.  Hardesty,  29  Md.  SO;   Wiliard's 

8  Rev.    Code,    1878,    §    24.      See,  Executors    v.    Ramsburg,    22    Md. 

generally,  on  these  sections,  Abrams  206;   Horner  v.   Greoholz,   38   Md. 

v.  Sheehan,  40  Md.  446;  Walsh  v.  521;  Kane  v.  Roberts,  40  Md.  590; 

Boyle,  30  Md.  267 ;  Owens  v.  Miller,  Leppoc  v.  National  Union  Bank,  32 

29    Md.    144;    Glenn   v.    Davis,   35  Md.    136;    Cockey   v.    Milne's   Les- 

Md.  215,  6  Am.   Rep.  389;   Estate  see,   16   Md.  207;   Busey  v.   Reese, 

of  Leiman,  Z2  Md.  225,  3  Am.  Rep.  38  Md.  264. 

132;   Administrators  of   Carson  v. 


CHAP.  XXI.]   REGISTRY  LAWS  OF  THE  SEVERAL  STATES. 


1109 


registry  of  deeds  for  the  county  in  which  the  land  is  situated.® 
An  absolute  deed  is  not  affected  by  a  defeasance  as  against 
any  other  person  than  the  maker  of  the  defeasance,  his  heirs 
and  devisees,  and  persons  having  actual  notice,  unless  such  de- 
feasance is  recorded  in  the  registry  of  deeds  for  the  county 
in  which  the  real  estate  is  situated.*  A  conveyance  of  land, 
otherwise  valid,  is  as  effectual,  notwithstanding  disseisin  or 
adverse  possession,  to  transfer  the  title,  as  if  the  grantor  were 
actually  seised  and  possessed  of  such  land  and  vests  in  the 
grantee  the  right  of  entry  and  of  action  for  the  recovery  of 
the  estate.' 

§  598.  Michigan. — Every  register  of  deeds  is  required 
to  keep  an  entry  book  of  deeds,  divided  into  six  columns,  as 
shown  in  the  note.^  Every  conveyance  which  is  not  recorded 
as  provided  by  statute  is  void  as  against  subsequent  purchas- 


9  Pub.  Stats.  1882,  p.  732,  §  4; 
Gen.  Stats.  1860,  p.  466,  §  3;  Rev. 
Laws  of  Mass.,  1902,  vol.  2,  p.  1222. 
See  Stetson  v.  Gulliver,  2  Gush. 
494;  Lawrence  v.  Stratton,  6  Gush. 
163;  Parker  v.  Osgood,  3  Allen, 
487;  Sibley  v.  LcfBngwell,  8  Allen, 
584;  George  v.  Kent,  7  Allen,  16; 
Lamb  v.  Pierce,  113  Mass.  72;  Fax- 
on V.  Wallace,  101  Mass.  444 ;  Earle 
V.  Fiske,  103  Mass.  491;  State  of 
Connecticut  v.  Bradish,  14  Mass. 
296;  Adams  v.  Guddy,  13  Pick.  460, 
25  Am.  Rep.  330;  Glidden  v.  Hunt, 
24  Pick.  221;  Flynt  v.  Arnold,  2 
Met.  619 ;  Dole  v.  Thurlow,  12  Met. 
157,  163;  Pomroy  v.  Stevens,  11 
Met.  244;  Gurtis  v.  Mundy,  3  Met. 


405;  Marshall  v.  Fisk,  6  Mass.  24, 

4  Am.  Dec.  ?6;  Stewart  v.  Glark, 
13  Met.  79;  Swasey  v.  Emerson, 
168  Mass.  118;  Stark  v.  Boynton, 
167  Mass.  443;  Smythe  v.  Sprague, 
149  Mass.  310,  3  L.R.A.  822. 

1  Pub.  Stats.  1882,  p.  734,  -  23 ; 
Gen.  Stats.  1860,  c.  89,  §  15;  Rev. 
Laws  of  Mass.,  1902,  vol.  2,  p.  1227. 
See  Foote  v.  Hartford  Ins.  Go., 
119    Mass.   259;    Bayley   v.    Bailey, 

5  Gray,  505;  Bryan  v.  Ins.  Go.,  145 
Mass.  389. 

2  Rev.  Laws  of  Mass.,  1902,  vol. 
2,  p.  1222. 

3  Howell's  Annotated  Stats.  1882, 
vol.  2,  p.  1469,  c.  216,  §  5674.  The 
form  prescribed  is  as  follows : 


Date  of 
Reception 


Township  where 
the  land  lies 


To  whom  delivered  [after 
being  recorded]  and  date 
[of  delivery]. 


Fees 
received 


1110  THE  LAW  OF  DEEDS.  [CHAP.   XXI. 

ers  in  good  faith  and  for  a  valuable  consideration,  whose  con- 
veyances are  first  duly  recorded.*  An  absolute  deed,  defeasi- 
ble on  the  performance  of  certain  conditions,  is  not  afifected  as 
against  any  person  other  than  the  maker  of  the  defeasance, 
or  his  heirs  or  devisees,  or  persons  having  actual  notice,  unless 
such  defeasance  is  properly  recorded.^  A  revocation  of  a  re- 
corded power  of  attorney  must  also  be  recorded.^ 

§  599.  Minnesota. — Deeds  are  recorded  in  the  office  of 
the  register  of  deeds  where  the  real  estate  is  situated;  and 
every  deed  not  so  recorded  is  void  as  against  any  subsequent 
purchaser,  in  good  faith  and  for  a  valuable  consideration, 
whose  conveyance  is  first  duly  recorded,  or  as  against  any  at- 
tachment levied  on  the  property,  or  any  judgment  lawfully 
obtained  at  the  suit  of  one  against  the  person  in  whose  name 
the  record  title  was  prior  to  the  recording  of  the  conveyance.' 
The  term  "purchaser"  includes  every  person  to  whom  any 
interest  in  real  estate  is  conveyed  for  a  valuable  consideration, 
and  also  every  assignee  of  a  mortgage,  lease,  or  other  condi- 
tional estate.^  A  certified  copy  of  the  record  of  a  deed  may 
be  recorded  in  any  county  in  the  State,  with  the  same  force 
and  effect  as  the  original  conveyance  would  have  if  so  re- 
corded.^ The  defeasance  of  an  apparently  absolute  deed  must 
be  recorded  in  order  to  be  effectual  as  to  persons  other  than 
the  maker  of  the  defeasance,  his  heirs  and  devisees  and  per- 
sons having  actual  notice.^ 

*  Howell's  Annotated  Stats.,  vol.  cox  v.  Hill,  11  Mich.  256,  263;  Rood 

2,  p.  1473,  §  29;  Comp.  Laws,  1871,  v.  Chapin,  Walk.  Ch.  19. 

pp.  1345,  1346.  7  Stats.   1878,   p.   537,  §  21;   Rev. 

5  Howell's  Annotated   Stats.,  vol.  Laws  of  Minn.  1905,  §  3357. 
2,  §  5686.  8  Stats.   1878,  §  26. 

6  Howell's  Annotated  Stats.,  vol.  9  Stats.  1878,  §  33.  See  Smith  v. 
2,  §  5692.  See  Doyle  v.  Stevens,  4  Gibson,  15  Minn.  89,  99;  Coy  v. 
Mich.  87;  Barrows  v.  Banghman,  9  Coy,  15  Minn.   119,  126. 

Mich.  213;  Godfrey  v.  Disbrow,  11  i  Rev.    Laws    of    Minn.,    1905,    § 

Mich.    260;    Warner   v.    Whittaker.       3361. 
6  Mich.  133.  72  Am.  Dec.  65;  Wil- 


CHAP.  XXI.]    REGISTRY  LAWS  OF  THE  SEVERAL  STATES.  UH 

§  600.  Mississippi.— Conveyances  are  void  as  to  all 
creditors  and  subsequent  purchasers  for  a  valuable  considera- 
tion without  notice,  unless  acknowledged  or  proved,  and 
lodged  with  the  clerk  of  the  chancery  court  of  the  proper 
county  for  record ;  but  they  are  valid  and  binding  as  between 
the  parties  and  their  heirs,  and  as  to  all  subsequent  purchasers 
with  notice,  or  without  valuable  consideration.*^  Every  con- 
veyance, covenant,  agreement,  bond,  mortgage  and  deed  of 
trust  take  effect  as  to  subsequent  purchasers  for  a  valuable 
consideration  without  notice  and  as  to  all  creditors  only  from 
the  time  of  delivery  for  record.  A  deed  which  is  admitted  to 
record  without  proper  acknowledgment  does  not  furnish  no- 
tice to  subsequent  purchasers  for  a  valuable  consideration.' 

§  601.  Missouri — Deeds  should  be  recorded  where  the 
real  estate  is  situated.*  Every  deed  which  is  duly  acknowl- 
edged and  recorded,  imparts  notice  from  the  time  of  filing  the 
same  for  record  to  all  persons  of  its  contents,  and  all  subse- 
quent purchasers  and  mortgagees  are  deemed  in  law  and  in 
equity  to  purchase  with  notice.'*  No  deed  is  valid  except  be- 
tween the  parties  and  those  who  have  actual  notice,  until  it  is 
deposited  with  the  recorder  for  record.^  A  power  of  attor- 
ney when  recorded  can  be  revoked  only  by  an  instrument  in 
writing  duly  recorded.'     If  a  deed  is  recorded  before  a  sale 

2  Rev  Code,  1871,  p.  503,  §  2304;  §  924.  See  Geer  v.  Mo.  etc.  Co., 
Miss   Code  of  1906,  §  2787;  Chaffe       134  Mo.  85,  34  S.  W.  1099,  56  Am. 

V  Halpin,   62   Miss.    1;    Miss.    etc.  St.   Rep.   489;    Smith   v   Boyd,    162 
Co.  V   R.  Co.,  58  Miss.  846;  Hiller  Mo.  146,  62  S.  W.  439. 

V  Jones    66  Miss.  636;   Woods  v.  ^  Rev.  Stats.  1879,  vol.   1,  p.  114, 
Garnett,  72  Miss.  78.  §  693;  Wagner's  Stats.  1872,  vol.  1, 

3  Miss  Code  of  1906,  §  2788.  See  p.  277,  §  26;  Ann.  Stats.  Mo.,  1906, 
Rev  Code  of  1871,  §§  2306,  2308.  §  925.  See  Finley  v.  Babb,  173 
See  Rev  Code,  1880,  §§  1209,  1212.  Mo.,  257,  73  S.  W.  180;  Genoway 
Miss.  Code  of  1906,  §  2793.  v.   Maize,   163   Mo.,  224,  63  S.  W. 

4  Ann.  Stats.  Mo..  1906,  §  923.  698;    Edwards   v.    R.    Co.,   82   Mo. 
6  Rev.  Stats.   1879,  vol.  1,  p.  114,       App.  96;  Harrison  v.  South  etc.  Co. 

§  692-   Wagner's   Stats.,   1872,  vol.      95  Mo.  App.  80,  68  S.  W.  963. 

1  p  277  §  25;  Ann.  Stats.  Mo.  1906,  'Rev.  Stats.  1879,  vol    1,  p.  114, 


1112  THE  LAW  OF  DEEDS.  [CHAP.   XXL 

on  execution,  it  is  good  as  against  a  judgment,  although  not 
recorded  until  after  the  judgment  was  rendered.* 

§  602.  Montana. — Instruments  entitled  to  be  recorded 
must  be  recorded  by  the  county  clerk  of  the  county  in  which 
the  real  property  affected  thereby  is  situated.  An  instrument 
is  deemed  recorded  when,  being  duly  acknowledged,  or  proved 
and  certified,  it  is  deposited  in  the  county  clerk's  office  with  the 
proper  officer  for  record.  Grants  absolute  in  terms  are  to  be 
recorded  in  one  set  of  books,  and  mortgages  and  securities 
in  the  nature  of  mortgages,  in  another.^  The  acknowledg- 
ment of  a  married  woman  to  an  instrument  purporting  to  be 
executed  by  her  must  be  taken  the  same  as  that  of  any  other 
person.^  A  conveyance  by  a  married  woman  has  the  same  ef- 
fect as  if  she  were  unmarried.^  Officers  taking  and  certify- 
ing acknowledgments,  or  proof  of  instruments  for  record  must 
authenticate  their  certificates  by  affixing  their  signatures  fol- 
lowed by  the  names  of  their  offices;  also,  their  seal  of  office, 
if  by  the  laws  of  the  State  or  country  where  the  acknowledg- 
ment or  proof  is  taken,  or  by  authority  of  which  they  are  act- 
ing, they  are  required  to  have  official  seals.'  Every  convey- 
ance of  real  property  entitled  to  record,  from  the  time  it  is 
filed  with  the  county  clerk  for  record,  is  constructive  notice 
of  its  contents  to  subsequent  purchasers  and  mortgagees.* 
Every  conveyance  of  real  property  other  than  a  lease  for  a 
term  not  exceeding  one  year,  is  void  as  against  any  subse- 
quent purchaser  or  encumbrancer,  including  an  assignee  of  a 
mortgage,  lease,  or  other  conditional  estate,  of  the  same  prop- 
erty, or  any  part  thereof,  in  good  faith  and  for  a  valuable  con- 
sideration,  whose   conveyance  is   first   duly   recorded.      The 

§  695;  Wagner's  Stats.  1872,  vol.  1,  »  Civil  Code,  1895,  §§  1590-1592. 

p.  277,  §  28;  Ann.  Stats.  Mo.,  1906,  »  Civil  Code,  1895,  §  1606. 

§  931.  2  Civil  Code,  1895,  §  1607. 

8  Davis  V.   Ownsby,   14  Mo.   170,  »  Civil  Code,  1895,  §  1613. 

55  Am.  Dec.  105 ;  Valentine  v.  Hav-  *  Civil  Code,  1895,  §  164a 
ener,  80  Mo.   133. 


CHAP.  XXI.]   REGISTRY  LAWS  OF  THE  SEVERAL  STATES.  1113 

term  "conveyance,"  embraces  every  instrument  in  writing  by 
which  any  estate  or  interest  in  real  property  is  created,  aHened, 
mortgaged,  or  encumbered,  or  by  which  the  title  to  real  prop- 
erty may  be  affected,  except  wills.  No  instrument  containing 
a  power  to  convey  or  execute  instruments  affecting  real  prop- 
erty which  has  been  recorded,  is  revoked  by  any  act  of  the 
party  by  whom  it  was  executed  unless  the  instrument  con- 
taining such  revocation  is  also  acknowledged  or  proved,  cer- 
tified, and  recorded  in  the  same  office  in  which  the  instrument 
containing  the  power  was  recorded.^  An  unrecorded  instru- 
ment is  valid  as  between  the  parties  and  those  who  have  notice 
of  it.« 

§  603.  Nebraska. — Every  deed  is  considered  recorded 
from  the  time  of  delivery  to  the  clerk,  and  takes  effect  from 
such'  time,  and  not  before,  as  to  all  creditors  and  subsequent 
purchasers,  in  good  faith  without  notice,  and  is  adjudged  void 
as  to  all  such  creditors  and  subsequent  purchasers  without 
notice  whose  conveyances  are  first  recorded,  provided  that 
these  conveyances  are  valid  between  the  parties.'  A  deed  is 
not  considered  lawfully  recorded  unless  previously  it  has  been 
duly  acknowledged  or  proved,'  It  is  no  objection  to  the  rec- 
ord of  a  deed  that  no  official  seal  is  appended  to  the  recorded 
acknowledgment  of  it,  "if,  when  the  acknowledgment  or  proof 
purports  to  have  been  taken  by  an  officer  having  an  official 

5  Civil  Code,  1895,  §  163.  370;  Hock  v.  Bowman,  42  Neb.  89, 

6  Civil  Code,  1895,  §  1644.  60  N.  W.  391. 

'Comp.   Stats.   1881    (Brown),  p.  «  Comp.   Stats.   1881    (Brown),  p. 

389,  §§  15,  16;  Comp.  Stats.  1885,  p.  390,  §  17;  Comp.  Stats.  1885,  p.  478, 

477,    §    16;    Cobbey's    Ann.    Stats.,  §    17.      See    Comp.    St-it.s.    1885,    c. 

Neb.,  vol.   2,   1903.   §   10215,   10216.  18,   §   11,   §§   15-18,  Laws   of   1887, 

See  Hare  v.  Murphy,  60  Neb.  135,  c.   30;   Cobbey's   Ann.   Stats.    Neb., 

82  N.  W.  312;   Schott  v.  Dosh,  49  vol.  2,  1903,  §  10217.     See  Warnick 

Neb.    195,  68   N.   W.   346,   59   Am.  v.    Latta,   44   Neb.   808,   62   N.   W. 

St.    Rep.   531;    Rumery  v.   Loy,   61  1097;  Keeling  v.  Hoyt,  31  Neb.  453, 

Neb.  755,  86  N.  W.  478;  Blair  Bank  48  N.  W.  66. 
V.  Stewart,  57   Neb.  58,  11  N.  VV. 


1114  THE  LAW  OF  DEEDS.  [CHAP.   XXI. 

seal,  there  be  a  statement  in  the  certificate  of  acknowledgment 
or  proof  that  the  same  is  made  under  his  hand  and  seal  of 
office,  and  such  statement  shall  be  presumptive  evidence  that 
the  affixed  seal  was  attached  to  the  original  instrument.'" 
The  copy  of  a  record  or  of  a  recorded  deed  authenticated  in 
such  manner  as  to  entitle  it  to  be  read  in  evidence,  may,  when 
the  loss  of  the  original  deed  and  of  the  record  is  proved,  be 
again  recorded,  and  such  record  has  the  same  effect  as  the 
original.^  An  unrecorded  mortgage  is  entitled  to  priority  over 
a  subsequent  conveyance  made  by  the  mortgagor  without  con- 
sideration.*^  Where,  through  mistake,  there  is  an  omission  of 
a  part  of  the  lands  in  the  record  desc'-ibed  in  a  mortgage,  and 
a  judgment  is  recovered  subsequently  against  the  mortgagor, 
the  lien  of  the  judgment  creditor  nust  be  postponed  to  the 
equity  of  the  mortgagee.^  By  a  law  eiiacted  in  1887,  regis- 
ters of  deeds  are  elected  in  all  counties  having  a  population  of 
eighteen  thousand  and  over,  who  have  all  the  powers  and  per- 
form all  the  duties  formerly  performed  by  county  clerks.* 

§  604.  Nevada. — Conveyances  to  operate  as  notice  to 
third  persons  must  be  recorded  in  the  office  of  the  recorder  of 
the  county  where  the  land  is  situated,  but  are  valid  and  bind- 
ing between  the  parties  without  registration.  A  conveyance, 
from  the  time  it  is  filed  with  the  recorder  for  record,  imparts 
notice  to  all  persons  of  its  contents,  and  subsequent  purchasers 

9Comp.  Stats.   1881    (Brown),  p.  Gregory,   8    Neb.   435;    Berkley    v. 

390,   §  20;    1885,  p.  478.  p.  478,   §  Lamb,  8  Neb.  392;  Harrall  v.  Gray, 

20;  Cobbey's  Ann.  Stats.  Neb.,  vol.  10    Neb.    189;    Edminster    v.    Hig- 

2,  1903,  §  10220.  gins,   6    Neb.   269;    Metz    v.    State 

iComp.     Stats.     1881     (Brown),  Bank    etc.,    7    Neb.    171;    Jones    v. 

§  21 ;  Comp.  Stats.   1885,  p.  477,  §  Johnson  Harvester  Co.,  8  Neb.  451 ; 

21;  Cobbey's  Ann.  Stats.  Neb.,  vol.  Lincoln  etc.  Assn.  v.  Haas,  10  Neb. 

2,  1903,  §  10221.  583;    Hooker   v.    Hammill,   7   Neb. 

2Merriman  v. -Hyde,  9  Neb.  120.  234;  Colt  v.  Du  Bois,  7  Neb,  394; 

3  Galway  v.  Malchow,  7  Neb.  289,  Dorsey  v.   Hall,  7   Neb.  465. 
overruling  Bennett  v.  Fooks,  1  Neb.  4  Laws   1887,  p.  362. 

465.      See,    generally,    Mansfield    v. 


CHAP.  XXI.]    REGISTRY  LAWS  OF  TllE  SEVERAL  STATES.  1115 

and  niortg-agees  are  deemed  to  purchase  with  notice.^  Every 
conveyance  which  is  not  thus  recorded  is  void  as  against  any 
subsequent  purchaser  in  good  faith  and  for  a  valuable  con- 
sideration, whose  conveyance  is  first  duly  recorded.^  A  power 
of  attorney  when  once  recorded  can  be  revoked  only  by  an  in- 
strument of  revocation  duly  recorded^  By  filing  such  a  rev- 
ocation for  record,  it  becomes  absolute  without  actual  notice 
to  the  attorney.  It  operates  as  notice  to  all  persons  dealing 
with  him.* 

§  605.  New  Hampshire. — No  deed  of  real  estate  is 
valid  to  hold  the  same  against  any  person  but  the  grantor  and 
his  heirs  only,  unless  attested,  acknowledged,  and  recorded 
as  provided  by  statute.^  "Any  deed  not  acknowledged  by 
the  grantor,  but  in  other  respects  duly  executed,  may  be  re- 
corded, and  for  sixty  days  after  such  recording  shall  be  as 
effectual  as  if  duly  acknowledged."  ^  If  a  person  who  has  a 
deed  neglects  or  refuses  to  allow  it  to  be  recorded  for  the 
space  of  thirty  days,  after  being  requested  to  do  so  in  writing 
by  any  person  having  an  interest  in  the  estate,  any  justice  upon 
complaint  may  issue  his  warrant  and  cause  such  person  to  be 
brought  before  him  for  examination ;  and  if  sufficient  cause  for 
this  neglect  or  refusal  is  not  shown,  the  justice  may  order 
such  deed  to  be  recorded,  and  may  commit  the  holder  to  jail 
until  the  order  is  performed.* 

§  606.  New  Jersey. — A  deed  is  void  and  of  no  effect 
against  a  subsequent  judgment  creditor  or  bona  fide  purchaser 

sComp.    Laws,    1873,    vol.    1,    p.  ^  Comp.  Laws,  1873,  vol.  1,  §  256; 

82,  §§  252,  253;  Comp.  Law,  1861-  Comp.  Law,  1861-1900,  §  1667. 

1900,  §§  2663,  2664.    See  Crosier  v.  « Arnold    v.    Stevenson,    2    Nev. 

McLaughlin,  1  Nev.  348;  Virgin  v.  234. 

Brubaker,    4    Nev.    31;    GrelleU    v.  '  Gen.  Laws,   1878,  p.  323,  c.  135, 

Heilshorn,  4  Nev.  526.  §  4. 

6  Comp.  Laws,  1873,  vol.  1,  §  254;  i  Gen.  Laws,  1878,  §  7. 

Comp.  Law.  1861-1900,  §  2667.  «  Gen.  Laws,   1878,  §   11. 


1116  THE  LAW  OF  DEEDS.  [CHAP.   XXI. 

or  mortgagee  for  a  valuable  consideration  without  notice,  un- 
less the  deed  is  recorded,  or  filed  for  record  with  the  clerk 
of  the  court  of  common  pleas  of  the  county  containing  the 
land,  within  fifteen  days  after  the  time  the  deed  is  signed, 
sealed,  and  delivered ;  but  the  deed  is  nevertheless  valid  and 
operative  between  the  parties  and  their  heirs.^  Where,  by  rea- 
son of  a  failure  to  record  a  deed  within  fiften  days  after  its 
delivery,  title  to  the  property  is  acquired  by  a  third  party,  the 
documentary  evidence  will  entitle  such  party  to  recover  the 
premises,  unless  the  party  claiming  under  the  first  deed  can 
show  that  the  other  had  notice  of  it.  The  burden  of  proof 
rests  upon  the  party  who  claims  under  the  first  deed.*  Where 
there  are  two  deeds,  if  the  one  which  was  given  is  recorded 
within  fifteen  days  after  its  delivery,  it  will  have  priority  over 
the  second,  although  the  second  was  recorded  first.'  A  deed 
which  is  not  recorded  is  valid  as  against  an  attaching  creditor 
having  notice  thereof  before  judgment.®  Recordation  of  unre- 
corded deeds  may  be  compelled  by  one  having  an  interest  in 
the  estate.' 

§  607.     New  Mexico  Territory. — Deeds  are  recorded  in 
the  office  of  the  archives  of  the  county  where  the  real  estate  is 

'Revision  of  1877,  p.  155,  §  14;  193.     See,   also,    Diehl   v.    Page,   2 

Law  of  1887,  ch.  164.    But  see  Pub.  Green,   Ch.   143 ;   Cornelius   v.   Gib^ 

Stats,    and    Session    Laws    1901,    p.  erson,   1  Dutch.   1 ;  Losey  v.  Simp- 

437.  son,    3    Stockt.    Ch.    246;    Lee    v. 

*  Coleman  v.   Barklew,  3  Dutch.  Woodworth,  2  Green  Ch.  37;  Hoy 

357;    Lewis   v.   Hall,   3   Halst.   Ch.  v.   Bramhall,   19  N.  J.   Eq.  564.  97 

107;     Freeman    v.     Elmendorf,     3  Am.  Dec.  687;  Nichols  v.   Peak,   1 

Halst.  Ch.  475;  Vreeland  v.  Claflin,  Beasl.  70;  Wells  v.  Wright,  7  Halst. 

9  Green,  C.  E.  313;  Blair  V.  Ward,  131;    Van    Doren    v.    Robinson,    1 

2  Stockt.  Ch.  119;  Holmes  v.  Stout,  Green,  C.   E.  256;   Mellon  v.   Mul- 

2     Stockt.     Ch.    419;     Sanborn    v.  vey,  8  Green,  C.  E.  198;  Annin  v. 

Adair,  29  N.  J.  Eq.  368.  Annin,  9  Green,  C.  E.  185. 

6  Den  V.  Rechman,   1   Green   (13  ''Pub.    Stats,   and   Session   Laws, 

N.  J.  L.),  43.  1901,  p.  437. 

8  Garwood  r.  Garwood,  4  Halst. 


CHAP.  XXI.]   REGISTRY  LA\YS  OF  THE  SEVERAL  STATES.  UU 

situated.  After  registration  a  deed  gives  notice  of  the  time 
of  its  being  registered  to  all  persons  mentioned  in  it,  and  all 
purchasers  and  mortgagees  are  considered  as  having  purchased 
under  such  notice.  A  deed  is  not  valid  except  as  to  the  par- 
ties interested,  and  those  who  have  actual  notice,  until  it  is 
deposited  in  the  office  of  the  clerk  to  be  registered.'  A  power 
of  attorney  which  has  been  recorded  can  be  revoked  only  by 
a  revocation  duly  recorded.' 

'     §  608.     New  York.— Deeds  are  conclusive  as  against 
subsequent  purchasers   from  the  grantor  or   from  his  heirs 
claiming  as   such,   except   against   subsequent   purchasers   in 
good  faith,  and  for  a  valuable  consideration,  who  shall  acquire 
a  superior  title  by  a  conveyance  that  shall  have  been  first  duly 
recorded.^     Different  sets  of  books  are  provided  for  the  re- 
cording of  deeds  and  mortgages;  in  one  of  these,  all  convey- 
ances absolute  in  their  terms,  and  not  intended  as  mortgages 
or  as  securities  in  the  nature  of  mortgages,  are  to  be  recorded, 
and  in  the  other  set  such  mortgages  and  securities  shall  be  re- 
corded.    A  deed,  which  by  any  other  instrument  in  writing 
shall  be  intended  only  as  a  mortgage,  though  it  may  be  an  ab- 
solute conveyance  in  form,  shall  be  treated  as  a  mortgage;  and 
the  person  for  whose  benefit  the  deed  is  made  will  not  derive 
any  advantage  from  its  registration,  unless  every  writing  oper- 
ating as  a  defeasance  or  explanatory  of  its  character  as  a 
mortgage  is  also  recorded  with  the  deed  and  at  the  same  time. 
A  copy  of  a  record,  or  of  a  recorded  deed,  attested  in  such 
manner  as  would  entitle  it  to  be  read  in  evidence,  may,  if  the 
loss  of  the  original  and  the  record  be  proven,  be  again  re- 

8  Gen.  Laws,  1880,  p.  236.  c.  44,  »  Rev.  Stats.,  vol.  2,  p.  1119  §  165 ; 
§§  14-16.  Laws  of  1887.  c.  10;  Rev.  Stats.,  vol.  2,  p  1138.  §  1; 
Comp.  Laws  1897.  §§  3953.  3954,  Fay's  Dig.  of  Laws,  1876,  vol.  1, 
3955.  3956.  p.  580.                               ,i-,q  gs  ? 

9  Gen.  Laws,  1880.  §  19;  Comp.  ^Rcv.  Stats.,  vol.  2,  p.  1138,  §§  2, 
Laws  1897,  §  3963.  3. 


1118 


THE  LAW  OF  DEEDS. 


[chap.   XXI. 


corded,  and  such  record  shall  have  the  same  effect  as  the  origi- 
nal record.' 

§  609.  North  Carolina. — A  deed  is  not  good  and  avail- 
able in  law  unless  it  is  acknowledged  and  proved  in  the  man- 
ner required  by  law,  and  registered  in  the  county  where  the 
land  lies  within  two  years  after  the  date  of  the  deed.  All 
deeds  thus  executed  and  registered  are  valid  without  livery 
of  seisin  or  other  ceremony.*  Deeds  of  gift  must  also  be  reg- 
istered within  two  years  after  execution,  else  they  are  void.® 
A  deed  of  trust  or  mortgage  is  not  valid  at  law  to  pass  any 
property  as  against  creditors  or  purchasers  for  a  valuable  con- 
sideration from  the  donor  or  mortgagor,  but  from  the  time 
of  registration  of  such  deed  of  trust  or  mortgage  in  the  county 
in  which  the  land  is  situated.®    An  error  in  the  registration  of 


3  Rev.  Stats.,  vol.  2,  p.  1148,  §  51; 
Fay's  Dig.,  vol.  1,  p.  586,  §  50;  3 
Rev.  Stats.,  7th  ed.,  pp.  2215,  2216. 
But  see  Revisal  of  1905,  vol.  1,  §  980, 
et  seq.  See,  also,  Revisal  of  1905, 
vol.  1,  §  979.  See,  generally,  New- 
ton V,  McLean,  41  Barb.  285;  Fort 
V.  Burch,  6  Barb.  60;  Schutt  v. 
Large,  6  Barb.  373 ;  Truscott  v. 
King,  6  Barb.  346;  Westbrook  v. 
Gleason,  79  N.  Y.  23;  Lacustrine 
etc.  Co.  V.  Lake  Guano  etc.  Co.,  82 
N,  Y.  476;  Hoyt  v.  Thompson,  5 
N.  Y.  347;  Judson  v.  Dada,  79  N. 
Y.  373;  Page  v.  Waring,  76  N.  Y. 
463. 

4  Code,  vol.  1,  p.  490,  §  1245; 
Code,  §§  1252,  1254.  See  Morris 
V.  Ford,  2  Dev.  Eq.  412;  Walker  v. 
Coltraine,  6  Ired.  Eq.  79;  Doak  v. 
State  Bank,  6  Ired,  309 ;  Osborne  v. 
Ballew,  7  Ired.  415;  Williams  v. 
Griffin,  4  Jones,  31 ;  Walston  v. 
Brasswell,  1  Jones  Eq.  137;  Free- 
man v.  Hatley,  3  Jones,  115;  John- 


son V.  Pendergrass,  4  Jones,  479; 
Latham  v.  Bowen,  7  Jones,  337; 
Hare  v.  Jernigan,  76  N.  C.  471 ; 
King  V.  Portis,  81  N.  C.  382;  Mc- 
Millan V.  Edwards,  75  N.  C.  81; 
Salms  V.  Martin,  63  N.  C.  608; 
Lnikcr  v.  Long,  64  N.  C.  296;  Ho- 
gan  V.  Strayhorn,  65  N.  C.  279; 
Love's  Executors  v.  Habbin,  87  N. 
C.  249;  Ivevy  v.  Cranberry,  66  N. 
C.  223;  Triplett  v.  Witherspoon,  74 
N.  C.  475;  Riggan  v.  Green,  80  N. 
C.  286,  30  Am.  Rep.  77;  Henley  v. 
Wilson,  81  N.  C.  405 ;  Davis  v.  In- 
scoc,  84  N.  C.  396 ;  Mosely  v.  Mosc- 
ly,  87  N.  C.  69;  Isler  v.  Foy,  66  N. 
C.  547 ;  Paul  v.  Carpenter,  70  N.  C. 
502;  Wilson  v.  Spark?,  72  N.  C. 
208;  Starke  v.  Etheridge,  71  N.  C 
240;  Holmes  v.  Marshall,  72  N.  C. 
37;  Buie  v.  Carver,  75  N.  C.  559; 
McCall  V.  Wilson,  101  N.  C.  598. 

6  Code,  vol.  1,  p.  490,  §  1252. 

6  Code,  vol.  1,  §  1254.  See  Re- 
visal, 1905,  vol.  1,  §  .982.    See,  also, 


CHAP.  XXI.]    REGISTRY  LAWS  OF  THE  SEVERAL  STATES, 


1119 


an  instrument  may  be  corrected  by  the  clerk  of  the  superior 
court,  upon  petition.' 

§  609a.  North  Dakota. — Any  instrument  or  judgment 
affecting  the  title  to  or  possession  of  real  property  may  be  re- 
corded, and  when  entitled  to  record  must  be  recorded  by  the 
register  of  deeds  of  the  county  in  which  the  real  property  af- 
fected thereby  is  situated.  The  register  is  required  in  all  cases 
to  indorse  the  amount  of  his  fee  for  the  recording  on  the  in- 
struments recorded.^  An  instrument  is  considered  recorded 
when  properly  acknowledged,  or  proved  and  certified,  it  is  de- 
posited in  the  register's  office  with  the  proper  officer  for  rec- 
ord.^ Grants  absolute  in  terms  and  mortgages  are  to  be  record- 
ed in  separate  books. ^  A  conveyance  by  a  married  woman  has 
the  same  effect  as  if  she  was  unmarried,  and  may  be  acknowl- 
edged in  the  same  manner.''  Officers  taking  and  certifying  ac- 
knowledgments or  proof  of  instruments  for  record  must  au- 


§§  5038,  5041.  See  Smith  v.  Wash- 
ington, 1  Dev.  Eq.  318;  Skinner  v. 
Cox,  4  Dev.  59;  Leggett  v.  Bullock, 
Busb.  283 ;  Moore  v.  Collins,  4  Dev. 
384;  Dewey  v.  LiUlejohn,  2  Ired. 
Eq.  495;  McKinnon  v.  McLean,  2 
Dev.  &  B.  79;  Metts  v.  Bright,  4 
Dev.  &  B.  173,  33  Am.  Dec.  683; 
Norwood  v.  Marrow,  4  Dev.  &  B. 
442 ;  Barnett  v.  Barnclt,  1  Jones,  Eq. 
221 ;  Simpson  v.  Morris,  3  Jones, 
411;  Barrett  v.  Cole,  4  Jones,  40; 
Green  v.  Kornegay,  4  Jones,  66,  67 
Am.  Dec.  261 ;  Dukes  v.  Jones,  6 
Jones,  14;  Newell  v.  Taylor,  3 
Jones,  Eq.  374;  Saunders  v.  Fer- 
rel],  1  Ired.  97;  Halcombe  v.  Ray, 
1  Ired.  340;  Doak  v.  State  Bank,  6 
Ired.  309;  Johnson  v.  Malcolm,  6 
Jones,  Eq.  120;  Morning  v.  Dick- 
erson,  85  N.  C.  466;  Parker  v.  Scott, 
64  N.  C.  118;  McCoy  v.  Wood,  70 
N.  C.   125 ;   Robinson  v.  Willough- 


by,  70  N.  C.  358;  Blevins  v.  Bar- 
ker, 75  N.  C.  436;  Edwards  v. 
Thompson,  71  N.  C.  177;  Moore  v. 
Ragland,  74  N.  C.  343;  Starke  v. 
Etheridge,  71  N.  C.  340;  Harris  v. 
Jones,  83  N.  C.  317;  King  v.  Por- 
tis,  n  N.  C.  25;  Todd  v.  Outlaw, 
79  N.  C.  235 ;  Capehart  v.  Biggs,  11 
N.  C.  261;  Purnell  v.  Vaughan,  17 
N.  C.  268;  Beaman  v.  Simmons,  76 
N.  C.  43. 

'^  Code,  vol.  1,  §  1266.  See  Jones 
v.  Physioc,  1  Dev.  &  B.  173;  Old- 
ham v.  Bank,  85  N.  C.  240. 

8  Rev.  Code,  1895,  §§  3563-3567; 
Rev.   Codes,   1905,   §  5005. 

9  Rev.  Code,  1895,  §  3568;  Rev. 
Codes,  1905,  §  5006. 

iRev.  Code,  1895,  §  3570;  Rev. 
Codes,  1905,  §  5008. 

2  Rev.  Code  1895,  §  3578;  Rev. 
Codes  1905,  §  5016. 


1120 


THE  LAW  OF  DEEDS.  [CHAP.   XXI. 


thenticate  their  certificates  by  affixing  to  them  their  signatures, 
followed  by  the  names  of  their  offices ;  also,  their  seals  of  office, 
if  by  the  laws  of  the  territory,  State  or  country  where  the  ac- 
knowledgment or  proof  is  taken,  or  by  authority  of  which  they 
are  acting,  they  are  required  to  have  official  seals.    Judges  and 
clerks  must  authenticate  their  certificates  by  affixing  to  them 
the  seal  of  the  proper  court,  and  mayors  of  cities  by  the  seal 
thereof."     Every  conveyance  of  real  property  other  than  a 
lease  for  a  term  not  exceeding  one  year,  is  void  as  against  sub- 
sequent purchasers  or  encumbrancers,  including  an  assignee 
of  a  mortgage,  lease,  or  other  conditional  sale  of  the  same 
property,  or  any  part  thereof,  in  good  faith  and  for  a  valuable 
consideration,  whose  conveyance  is  first  duly  recorded.*    The 
term  "conveyance,"  as  used  in  the  code,  embraces  every  in- 
strument in  writing  by  which  any  estate  or  interest  in  real 
property  is  created,  aliened,  mortgaged,  or  encumbered,  or  by 
which  the  title  to  any  real  property  may  be  affected  except 
wills,   statutory  contracts   for  the  sale  or   purchase   of   real 
property  and  powers  of  attorney.^     No  instrument  conferring 
a  power  to  convey  or  execute  instruments  affecting  real  prop- 
erty which  has  been  recorded  is  revoked  by  any  act  of  the 
party  by  whom  it  was  executed,  unless  the  instrument  con- 
taining such  revocation  is  also  acknowledged  or  proved,  cer- 
tified and  recorded  in  the  same  office  in  which  the  instrument 
containing  the  power  was  recorded.^ 

§  610.  Ohio. — Powers  of  attorney  must  be  recorded  in 
the  office  of  the  recorder  of  the  county  where  the  land  lies, 
prior  to  the  execution  of  the  deed  made  in  pursuance  of  it.' 
A  deed  not  recorded,  is  deemed  fraudulent,  so  far  as  relates 

8  Rev.    Code   1895,   §   3568;    Rev.  6  Rev.    Code    1895,   §   3596;    Rev. 

Codes  1905,  §  5028.  Codes  1905,  §  5040. 

4  Rev.  Code  1895,  §  3594;  But  see  'Rev.  Stats.  1880.  vol.  I,  p.  1033, 

Rev.  Code  1905,  §  5038.  §  4132.    Laws  of  1885,  p.  230;  Batc'i 

6  Rev.  Code,  1895,  §  3595 ;   Rev.  Ann.  Stats.  §  4131. 
Codes  1905,  §  5039. 


CHAP.   XXI.]    REGISTRY  LAW  OF  SEVERAL  STATES.  1121 


to  any  subsequent  bona  fide  purchaser,  having  at  the  time  of 
purchase  no  knowledge  of  the  existence  of  the  deed.' 

§  611.  Oregon. — A  deed  is  considered  as  recorded  at 
the  time  it  is  received  by  the  recorder  for  record.^  Every  deed 
which  is  not  recorded  within  five  days  after  its  execution  is 
void  against  any  subsequent  purchaser  in  good  faith  and  for 
a  valuable  consideration,  whose  conveyance  is  first  duly  re- 
corded.^ A  deed  absolute  in  terms,  defeasible  by  a  deed  of  de- 
feasance, is  not  affected  as  against  any  person  other  than  the 
maker  of  the  defeasance,  or  his  heirs  or  devisees,  or  persons 
having  actual  notice,  unless  the  defeasance  is  recorded  in  the 
office  of  the  recorder  of  the  county  where  the  land  lies.^ 

§  611a.  Oklahoma. — Every  conveyance  of  real  prop- 
erty, other  than  a  lease  not  exceeding  one  year,  is  void  as 
against  subsequent  purchasers  and  encumbrancers,  including 
an  assignee  of  a  mortgage,  lease,  or  other  conditional  sale  of 
the  property,  or  any  part  thereof,  who  becomes  such  in  good 
faith  and  for  a  valuable  consideration,  and  whose  conveyance 
is  first  duly  recorded.  Dower  and  curtesy  are  abolished.  Con- 
veyances must  be  recorded  with  the  register  of  deeds  of  the 
county  in  which  the  land  affected  thereby  is  situated.*^* 

•Bate's  Ann.  Stats.  §  4134.     See  « Gen.  Laws,  p.  518,  §  24;  Ana 

Doe  V.  Bank  of   Cleveland,  3  Mc-  Codes   &    Stats.    §    5357.      But   the 

Lean,  140;  Lessee  of   Cunningham  time  during  which  deeds  were  al- 

V.  Buckingham,  1  Ohio,  265 ;  Lessee  lowed  to  be  filed  was   changed  in 

of    Allen   V.    Parish,   3   Ohio,    107;  1885. 

Smith  V.   bmith,   13  Ohio   St.   532;  ^  Gen.  Laws,  §  26;  Ann.  Codes  & 

Northrup's    Lessee    v.    Brehmer,    8  Stats.     §     5359.       See     Crossen     v. 

Ohio,    392;    Leiby's    Executors    v.  Oliver,  37  Ore.  521,  61  Pac.  885. 

Wolf  10  Ohio,  83 ;  Stansell  v.  Rob-  2  Gen.    Laws,    §    28.      Annotated 

erts,  13  Ohio,  148,  42  Am.  Dec  193 ;  Laws,     1887,    §§    3024-3029;     Ann. 

Mayham  v.  Coombs,  14  Ohio,  428;  Codes  &  Stats.  §  5361.     See  Securi- 

Lessee  of  Irvin  v.  Smith,  17  Ohio,  ty,  etc.,  Co.  v.  Loewenberg,  38  Or. 

226;   Price  v.   Methodist   Episcopal  172,  62  Pac.  647. 

Church,    4    Ohio,    515;    Spader    v.  2a  See  §   1195,  Comp.  Laws  1909, 

Lawler,'  17  Ohio,  371,  49  Am.  Dec  noting  slight  changes  from  law  as 

461 ;   Bloom  v.  Noggle,  4  Ohio  St.  stated  in  text 
45;    Bercaw   v.   Cockcrill.   20   Ohio 

Sl  163. 

Deeds,  Vol.  H.— 71 


1122 


THE  LAW  OF  DEEDS. 


[chap.   XXI. 


§  612.  Pennsylvania.— Deeds  executed  within  the 
State  should  be  recorded  in  the  office  for  recording  deeds  in 
the  county  in  which  the  land  is  situated  within  six  months 
after  execution;  and  if  not  so  recorded  they  will  be  adjudged 
fraudulent  and  void  against  any  subsequent  purchaser  or 
mortgagee  for  valuable  consideration,  unless  recorded  before 
the  proving  and  recording  of  the  deed  or  conveyance  under 
which  the  subsequent  purchaser  or  mortgagee  claims.^  If 
executed  without  the  State,  they  must  be  so  recorded  within 
twelve  months  after  their  execution.* 

§  613.  Rhode  Island. — Deeds,  mortgages,  and  deeds  of 
trust  are  void,  unless  they  are  duly  acknowledged  and  record- 
ed; but,  between  the  parties  and  their  heirs,  they  are  neverthe- 
less valid  and  binding.^  They  are  recorded  in  the  office  of 
the  town  clerk  of  the  town  where  the  land  lies. 


3  Purdon's  Dig.  (Brightly),  p. 
321,  §  71.  See  as  to  statute  relat- 
ing to  Philadelphia  only,  Purdon's 
Ann.  Dig.,  p.  2110,  §  S. 

4  Purdon's  Dig.  (Brightly),  §  12. 
See  on  the  question  of  notice,  Chew 
V.  Barnett,  11  Serg.  &  R.  389;  Har- 
ris V.  Bell,  11  Serg.  &  R.  39;  Krider 
V.  Lafferty,  1  Whart.  303;  Randall 
V.  Silverthorn,  4  Barr.  173 ;  Hether- 
ington  V.  Clark,  6  Casey,  393 ;  Boggs 
V.  Warner,  6  Watts  &  S.  469;  Mil- 
ler V.  Cresson,  1  Watts  &  S.  284; 
Green  v.  Drinker,  7  Watts  &  S. 
440;  Parke  v.  Chadwick,  8  Watts 
&  S.  96;  Kerns  v.  Swope,  2  Watts, 
75 ;  Epley  v.  Witherow,  7  Watts, 
167;  Lewis  v.  Bradford,  10  WaUs, 
67;  Rankin  v.  Porter,  7  Watts,  387. 
As  to  the  parties  bound  by  an  un- 
recorded conveyance,  see  Nice's  Ap- 
peal, 54  Pa.  St.  200;  Adams'  Ap- 
peal, 1  Penn.  &  W.  447 ;  Speer  v. 
Evans,  47  Pa.  St.  141 ;  Mellon's  Ap- 
peal, 32  Pa.  St.  121;  BriUon's  Ap- 


peal, 45  Pa.  St.  172.  Bona  Me  pur- 
chasers :  Hofifman  v.  Strohccker,  7 
Watts,  90,  32  Am.  Dec.  740-  Poth 
V.  Anstatt,  4  Watts  &  S.  307;  Brack- 
en V.  Miller,  4  W^atts  &  S.  102; 
Union  Canal  Co.  v.  Young,  1  Whart. 
410,  432,  30  Am.  Dec.  212;  Sailor 
V.  Hertzog,  4  Whart.  264;  Jacques 
V.  Weeks,  7  Watts,  261;  Snider,  3 
Phila.  160;  Plummer  v.  Robertson, 
6  Serg.  &  R.  179.  On  the  question 
of  priority,  see  Brooke's  Appeal,  64 
Pa.  St.  127 ;  Lightner  v.  Mooney,  10 
Watts,  407;  Bratton's  Appeal,  8  Pa. 
St.  164;  Foster's  Appeal,  3  Pa.  St. 
79;  Ebner  v.  Goundie,  5  Watts  & 
S.  49;  Safe  Deposit  &  Trust  Co. 
V.  Kelly,  159  Pa.  St.  82;  Fries  t. 
Null,  154  Pa.  St.  573. 

5  Public  Stats.  1882,  p.  443,  c.  173, 
§  4;  Gen.  Stats.  1872,  p.  350,  §  4; 
Gen.  Laws  Rev.  1909,  p.  875.  See 
Harris  v.  Arnold,  1  R.  I.  125;  Thur- 
bcr  V.  Dwyer,  10  R.  L  355. 


CHAP.   XXI.]    REGISTRY   LAW   OF  SEVERAL  STATES.  1123 

§  614.  South  Carolina. — Conveyances,  if  made  within 
ihc  State,  must  be  recorded  within  six  months  from  their  exe- 
cution; if  by  a  resident  of  any  other  State,  within  twelve 
months;  and  if  made  without  the  limits  of  the  United  States, 
then  within  two  years.  If  not  recorded  within  these  periods, 
respectively,  they  are  vahd  and  legal  only  as  to  the  parties 
themselves  and  their  heirs,  but  are  void  and  incapable  of  de- 
feating the  right  of  persons  claiming  as  creditors,  or  under 
subsequent  purchases  recorded  in  the  manner  prescribed  by 
statute.^  A  mortgage  is  not  valid  so  as  to  affect  the  rights 
of  subsequnt  creditors  or  purchasers  for  a  valuable  consider- 
ation without  notice,  unless  it  is  recorded  within  sixty  days 
from  its  execution."^  The  conveyance  (except  original  grants) 
first  registered  is  deemed  to  be  the  first  conveyance,  notwith- 
standing the  execution  of  any  conveyance  not  before  regis- 
tered." 

§  614a.  South  Dakota. — All  instruments  affecting  the 
title  to  real  property  must  be  recorded  with  the  register  of 
deeds  of  the  county  in  which  the  property  lies,  and  every 
such  conveyance  other  than  a  lease  for  a  term  of  years  is  void 
as  against  a  subsequent  purchaser  or  encumbrancer  in  good 
faith  and  for  a  valuable  consideration  whose  conveyance  is 
hrst  recorded.  The  registry  laws  include  assignments  of 
mortgages,  leases,  and  conditional  sale.^ 

6  Rev.  Stats.  1873,  p.  422,  §  1;  Thompson,  2  Nott  &  McC.  105; 
A.  A.  1876;  16  Stat.  92.  But  see  Steele  v.  ]ManselI,  6  Rich.  437;  Tan 
Code  of  Laws  1902,  Vol.  1,  p.  940,  v.  Crawford,  1  McCord,  265;  Daw- 
ct  scq.  and  note  changes.  son,  Rice  Eq.  243;  Boyce  v.  Shiver, 

7  Rev.  Stats.  1873,  §  2.  But  see  3  S.  C.  515;  Stokes  v.  Hodges,  11 
change  bv  Rev.  Stats.  1893,  §  1776.  Rich.  Eq.  135. 

See  Code  of  Laws,  1902,  Vol.  1,  p.  ^  C.   C.   §§  651,  671,   C.   L.   3272, 

940,  et  scq.  3293.     See  Rev.  Codes  1903,  p.  734, 

8  Rev.  Stats.  1873,  p.  424,  §  6.  A.  §§  986,  987.  See,  also,  Parrish  v. 
A.  1876;  16  Stat.  92.  See  Williams  Mahoney,  10  S.  D.  276;  Merrill  v. 
v.  Beard,  1  S.  C.  309 ;  McFall  v.  Luce,  6  S.  D.  354 ;  Betts  v.  Letcher, 
Sherrard,    Harp.    295;    Massey    v.  1  S.  D.  193. 


1124 


THE  LAW  OF  DEEDS.  [CHAP.  XXL 


§  615.  Tennessee.— Deeds  are  registered  in  the  county 
where  the  land  hes,  unless  it  lies  partly  in  two  or  more  coun- 
ties, and  then  it  may  be  registered  in  either.  If  the  deed  em- 
braces several  tracts  of  land  lying  in  different  counties,  it 
shall  be  registered  in  each  of  the  counties  where  any  of  the 
tracts  lie.  A  deed  is  not  good  and  available  in  law  as  to  stran- 
gers, unless  it  is  acknowledged  and  registered  by  the  regis- 
ter of  the  county  where  the  land  lies.  Deeds  have  effect  be- 
tween the  parties  and  their  heirs  and  representatives  without 
registration;  but  as  to  other  persons  who  have  not  actual  no- 
tice, only  from  the  time  they  are  noted  for  registration,  on 
the  register-books  of  the  register,  unless  otherwise  expressly 
provided.^  When  so  registered,  they  are  notice  to  all  the 
world  from  the  time  at  which  they  are  noted  for  registration. 
The  deed  first  registered  or  noted  for  registration  has  pref- 
erence over  one  of  earlier  date,  but  noted  for  registration  sub- 
sequently, unless  in  a  court  of  equity  it  is  proven  that  the 
party  claiming  under  the  subsequent  deed  had  full  notice  of 
the  earlier  one.^  Conveyances  not  so  acknowledged  and  reg- 
istered, or  noted  for  registration,  are  null  and  void  as  against 
existing"  or  subsequent  creditors  of,  or  bomi  fide  purchasers 
from,  the  makers  without  notice.^ 

§  616.  Texas. — Deeds  are  void  as  to  all  creditors  and 
subsequent  purchasers  for  valuable  consideration  without  no- 
tice, unless  they  are  acknowledged  and  filed  with  the  record- 
ing officer,  to  be  recorded  as  required  by  law ;  but  they  are 
valid  as  between  the  parties  and  their  heirs,  and  as  to  all  sub- 
sequent purchasers  with  notice,  or  withofit  valuable  consider- 

1  Stats.  1871  (Thompson  &  Ste-  Code  M.  &  V.  2887,  2888.  See 
ger),  §  2072.  Thomas  v.  Blackmorc,  5  Yerg.  113, 

2  Notice  to  a  trustee  is  notice  to  124;  May  v.  McKeenon,  6  Humph' 
the  principal:  Myers  v.  Ross,  209;  Vance  v.  McNairy  3  Yerg 
^l^^'  ^9-  176,  24  Am.   Dec.   553;    Shields   v. 

8Stat.=^.  1871  (Thomp.son  v.  Ste-  Mitchell.  10  Yerg.  8"  Hays  v  Mc- 
ger),§§  2005,  2032,  2072,  2073,  2075;      Guire,  8  Yerg.  92. 


CHAP.   XXI.]    REGISTRY   LAW   OF  SEVERAL  STATES.  1125 

ation.*  Deeds  take  effect  as  to  all  subsequent  purchasers,  for  a 
valuable  consideration,  without  notice,  and  as  to  all  creditors, 
from  the  time  when  they  are  delivered  to  the  clerk  for  record, 
and  from  that  time  only.^ 

§  617.  Utah. — Deeds  must  be  acknowledged  before 
they  are  entitled  to  record.  They  are  valid  as  against  the  par- 
tipp  and  those  who  have  actual  notice  without  registration,  but 
to  impart  notice  to  third  persons  must  be  recorded.  Deeds 
not  recorded  are  void  against  subsequent  purchasers  in  good 
faith  and  for  a  valuable  consideration,  when 'such  subsequent 
purchasers  have  their  deeds  first  duly  recorded.  Notice  of  the 
contents  of  a  deed  is  given  to  every  person  from  the  time  it  is 
filed  for  record.  A  power  of  attorney,  when  recorded,  can 
be  effectually  revoked  only  by  having  the  revocation  also  re- 
corded.' 

§  618.  Vermont. — Deeds  must  be  attested  by  two  or 
more  witnesses,  and  are  recorded  in  the  clerk's  office  of  the 
town  where  the  lands  lie.  If  there  is  no  town  clerk  they  are 
recorded  by  the  clerk  of  the  county.''  A  deed  is  not  effectual 
in  law  to  hold  the  land  conveyed  against  any  person  but  the 
grantor  and  his  heirs,  unless  it  is  acknowledged  and  recorded 
as  provided  by  statute.'  A  deed  made  under  a  power  of  at- 
torney has  no  effect,  and  is  not  admissible  in  evidence,  unless 
such  power  of  attorney  is  signed,  sealed,  attested,  and  acknowl- 

*Rev.  Stats.  \879,  p.  625,  §  4332;  Barney  v.  Currier,  1  Chip.  D.  315; 

Paschal's  Dig.,  vol.  1,  p.  836,  §  4988.  6  Am.  Dec.  739 ;  Stewart  v.  Thomp- 

6  Rev.  Stats.  1879,  p.  626,  §  4334.  son,  3  Vt.  255;  Brackett  v.  Wait,  6 

6  Laws,  1853.  c.  75.  See  Laws,  Vt  411;  Harrington  v.  Gage,  6  Vt 
1867,  c.  28.  See  Comp.  Laws,  1907,  532;  Corliss  v.  Corliss,  8  Vt  373; 
§§  1999,  2000,  2001,  1974,  1975.  Pratt   v.    Bank   of    Bennington,    10 

7  Rev.  Laws,  1880,  pp.  338,  339,  Vt  293,  33  Am.  Dec.  201 ;  Barnard 
§§  1927,  1929.  V.  Whipple,  29  Vt.  401,  70  Am.  Dec. 

8  Rev.  Laws,  1880,  p.  339,  §  1931.  422;  Stding  v.  Baldwin,  42  Vt. 
See  Ludlow  v.  Gill,  Chip.  N.  63;  306;  Sprague  v.  Rockwell,  51  Vt. 
Morris  v.  Ludlow,   1   Chip.  D.  49;  40L 


1126  THE  LAW  OF  DEEDS.         [CHAP.  XXL 

edged  and  recorded  in  the  office  where  the  deed  is  required  to 
be  recorded.^ 

§  619.  Virginia.— Deeds  of  trust  and  mortgages  are 
not  effectual  against  creditors  and  subsequent  purchasers  for 
a  vakiable  consideration  without  notice,  except  from  the  time 
at  which  they  are  duly  admitted  to  record.^  Every  contract 
relating  to  real  estate  shall,  from  the  time  it  is  duly  admitted  to 
record,  be  as  valid  against  creditors  and  purchasers  as  if  Uie 
contract  were  a  deed  conveying  the  estate.' 

§  620.  Washington. — Conveyances  are  valid  as  against 
bona  fide  purchasers  from  the  time  they  are  filed  for  record, 
and  when  so  filed  the  record  is  filed  to  give  notice  to  all  the 
world. ^  When  a  deed  is  made  by  a  commissioner  appointed 
by  the  court  the  conveyance  shall  be  recorded  in  the  ofiice  in 
which  by  law  it  should  have  been  if  made  by  the  parties  whose 
title  is  conveyed  by  it.* 

§  621.  West  Virginia. — Deeds  are  void  as  to  creditors 
and  subsequent  purchasers  for  a  valuable  consideration  with- 
out notice  until  they  are  duly  admitted  to  record  in  the  county 
where  the  property  embraced  in  the  deed  is  situated.  Where 
two  or  more  instruments  affecting  the  same  property  are  ad- 

9  Rev.  Laws,   1880,   §   1935.     See  v.     Ragland's      Administrators,     8 

Oatman  V.  Fowler,  43  Vt.  462.  Gratt.    344;    McCliire    v.    Thistle's 

1  Code,  1873,  c.  114,  §§  4-9;  Code,  Executors,  2  Gratt.  182. 

§§  2463,  2464,  2467.     See  Va.  Code,  2  Code,    1887,    §    2464.      See    Va. 

1904,  §  2465.    See,  also.  Chapman  v.  Code,  1904,  §  2464.    See,  also,  Brax- 

Chapman,  91  Va.  397,  21  S.  E.  813 ;  ton  v.   Bell    92  Va    2^9    23   S    E 

Price  V.  Wall,  97  Va.  335,  33  S.  E.  289;  Craig  v.  Williams.  90  Va.  500^ 

599,  75  Am.  St.  Rep.  788.    See  Bev-  18  S.  E.  899,  44  Am.  St  Rep  934 

erly  v.   Ellis,   1   Rand.   102;   Beck's  3  Laws  of  1877.  p.  312;  1  S.  &  C, 

Administrators    v.    De    Baptists,    4  §  1439 

Lejgh,   349;    Bird   v.   Wilkinson,   4  4  Code    of    Washington.    1896.    § 

Leigh,  266;  Lane  v.  Mason,  5  Leigh,  4981. 
520;    Glazebrook's    Adminisrtrators 


Chap,  xxi.]  registry  law  of  several  states.  Il27 

mitted  to  record  in  the  same  county  on  the  same  day,  the  one 
first  admitted  to  record  has  priority  as  to  the  property  situated 
in  such  county.  By  the  terms  "creditors"  and  "purchasers" 
are  embraced  not  only  those  from  the  grantor,  but  also  those 
who,  but  for  the  deed  or  other  conveyance,  would  have  title 
to  the  property  conveyed,  or  a  right  to  subject  it  to  the  pay- 
ment of  their  debts.^ 

§  622.  Wisconsin. — Every  conveyance  which  is  not  re- 
corded as  provided  by  law  is  void  as  against  subsequent  pur- 
chasers in  good  faith  and  for  a  valuable  consideration,  whose 
conveyances  shall  be  first  duly  recorded.®  A  deed  absolute  in 
form  is  not  defeated  by  a  deed  of  defeasance  as  against  any 
person  other  than  the  maker  of  the  defeasance,  or  his  heirs  or 
devisees,  or  persons  having  actual  notice,  unless  the  defeasance 
is  recorded  in  the  office  of  the  register  of  deeds  of  the  county 
where  the  lands  are.'  A  power  of  attorney,  when  recorded, 
can  be  revoked  effectually  only  by  recording  the  instrument 
of  revocation.^  A  deed  executed  in  1868  passes  the  legal 
title  to  land  in  Wisconsin,  though  not  acknowledged  or  at- 
tested, as  those  formalities  are  only  essential  to  entitle  it  to 
record.' 

»  Code  1887,  c.  74,  §§  5,  8,  9.  99  Am.  Dec.  183 ;  Hay  v.  Hill,  24 

6  Rev.  Slats.,  1878,  p.  641,  §  2241.  Wis.    235;    Stevens    v.    Brooks,   24 

See  Evarts   v.  Agnes,  4  Wis.   343,  Wis.  326;  Wickes  v.  Lake,  25  Wis. 

65  Am.  Dec.  314;  Evarts  v.  Agnes,  71;  The  International  Life  Ins.  Co. 

6   Wis.   453;    Hodson    v.    Treat,    7  v.    Scales,   27   Wis.   640;    Smith   v. 

Wis.  263;  Myrick  v.  McMillan,  13  Garden,    28    Wis.    685;    Fallas    v. 

Wis.  18S;  Deuster  v.  McCamus,  14  Pierce,  30  Wis.  443;  Gilbert  v.  Jess, 

Wis.   307;    Stewart   v.   McSweeney,  31  Wis.  110;  Hoyt  v.  Jones,  31  Wis. 

14  Wis.  468;  Straight  v.  Harris,  14  389;  Ehle  v.  Brown,  31  Wis.  405; 

Wis.  509;   Gee  v.   Bolton,   17  Wis.  Austin  v.  Holt,  32  Wis.  478;  Quin- 

604:  Fery  v.  Pfeiffer,  18  Wis.  510;  Ian  v.  Pierce,  34  Wis.  304. 

Wyman  v..  Cartt r,  20  Wis.  107 ;  Ely  '  Rev.  Stats.,  §  2243. 

v.    Wilco.x,    20   Wis.    523,   91    Am.  8  Rev.  Stats.,  §  2246. 

Dec.  436 ;  Shove  v.  Larsen,  22  Wis.  »  I.cinenkugel    v.    Kehl,    7Z   Wis. 

142 ;  Schnee  v.  Schnee,  23  Wis.  377,  238. 


1128 


THE  LAW  OF  DEEDS.  [CHAP.  XXI. 


§  623.  Wyoming. — Conveyances  under  seal  attested 
by  two  or  more  witnesses,  and  properly  acknowledged,  are  re- 
corded in  the  office  of  the  register  of  deeds  of  the  county  in 
which  the  land  is  situated.  All  conveyaces  so  recorded  are 
notice  to  any  subsequent  purchasers,  from  the  time  the  instru- 
ment is  delivered  at  the  office  of  the  register  of  deeds  for  reg- 
istration.^ 

§  624.  Effect  of  statutes  giving  time  to  record  deeds 
—Valid  from  delivery. — Where,  by  the  provisions  of  the 
statute,  a  purchaser  is  allowed  a  specified  time  after  the  exe- 
cution of  the  deed  in  which  to  procure  its  registration,  the 
deed  takes  effect  as  it  would  if  such  statutes  did  not  exist ;  that 
is,  from  its  delivery.  It  is  valid  from  delivery  as  against  sub- 
sequent purchasers.  A  deed  thus  recorded  within  the  statu- 
tory period  will  prevail  over  the  deed  of  a  person  who  pur- 
chased the  property  after  the  execution  of  the  former  deed,  but 
before  it  was  filed  for  registration.^  Speaking  of  the  statute 
of  Mississippi,  which  allows  three  months  after  execution  for 
the  registration  of  conveyances,  except  deeds  of  trust  and 
mortgages,  and  provides  that  if  so  recorded  they  shall  be  valid 
from  delivery,  the  court  say:  "The  lodging  with  the  clerk 
of  any  of  the  instruments  enumerated  in  the  act  for  record 
(except  deeds  of  trust  and  mortgages),  within  three  months 
after  execution,  makes  such  instruments  valid  from  date  of 
delivery,  so  as  to  prevail  against  a  purchaser  or  creditor  who 
has  acquired  a  right  subsequent  to  the  date  of  delivery,  al- 
though prior  to  the  time  of  deposit  of  the  instrument  with  the 
clerk.  In  other  words,  filing  the  deed  with  the  clerk  within 
three  months  makes  the  benefit  of  registration  relate  back  to 
the  day  of  delivery,  so  as  to  prevail  against  intermediate  con- 

1  Compiled  Laws,  1876,  p.  284,  c.  Claiborne  v.  Holmes,  51  Miss.  146. 

40,  §§  1,  3;  Rev.  Stats.,  §§  15-21;  See,   also,    Stanzell   v.   Roberts,   13 

Rev.  Stats.,  1899,  §§  2761,  2754  et  Ohio,  148,  43  Am.  Dec.  193;  May- 

seq.  ham  v.  Coombs,  14  Ohio,  428. 

8  Dale   V.    Arnold,   2   Bibb,   605; 


CHAP.   XXI.]    REGISTRY  LAW   OF  SEVERAL  STATES.  1129 

veyances  or  encumbrancers.  Deeds  of  trust  and  mortgages, 
however,  have  no  relation  back  to  any  act  or  date ;  and  notice 
to  subsequent  purchasers  and  creditors  begins  from  the  time 
they  are  filed  with  the  clerk  for  record.  If  the  instruments 
to  which  three  months  are  allowed  for  record  are  not  regis- 
tered within  the  time,  they  operate  to  give  notice  from  the 
time  they  are  lodged  with  the  clerk."  ' 

§  625.  Protection  of  grantee. — These  statutes  giving  a 
specified  time  from  the  execution  of  a  conveyance  in  which  to 
record  it  are  intended  for  the  benefit  of  the  grantee.  He 
may,  by  recording  his  deed  within  the  stipulated  time,  have  it 
take  effect  from  its  execution.  If  he  neglects  to  file  it  for 
record  within  this  time,  it  is  not  void.  In  a  case  in  Indiada, 
it  was  contended  that  a  deed  should  not  go  upon  the  records, 
unless  placed  there  within  the  time  specified  by  statute,  and 
that  it  would  not  be  notice  to  one  who  should  purchase  the 
property  after  it  was  recorded.  But  the  court  answered : 
"This  construction  we  cannot  adopt;  we  think  a  man  could 
not  be  considered  as  standing  in  the  position  of  a  purchaser 
in  good  faith,  who  should  buy  and  take  a  title  in  view  of  a 
recorded  deed  of  an  already  outstanding  title;  but  that  he 
would  be  buying  with  notice,  that  is  the  record  would  be  no- 
tice to  subsequent  purchasers."  *  The  Supreme  Court  of  the 
United  States  passing  on  the  statute  of  South  Carolina  allow- 
ing conveyances  to  be  recorded  within  three  months  from  their 
date  said :  "With  regard  to  the  position  insisted  upon  in  the 
answers,  that  the  antenuptial  settlement  was  void  for  the  fail- 
ure to  record  it  within  three  months  from  its  date  in  conform- 
ity with  the  law  of  South  Carolina;  that  position,  however 
maintainable  it  might  be,  so  far  as  the  instrument  was  designed 

8  Claiborne   v.    Holmes,   51    Miss.  Massey,     11    Rich.    614;    Irvin    v. 

146,  150,  per  Simrall,  J.  Smith,  17  Ohio,  226;  Steele  v.  Man- 

*  Meni  v.  Rathbone,  21  Ind.  454.  sell,  6  Rich.  437 ;  Mallory  v.  Stod- 

See,    also,    De   Lane   v.    Moore,    14  der,  6  Ala.  801. 
How.  253,   14  L.   ed.  409;   Belk  v. 


1130 


THE  LAW  OF  DEEDS. 


[chap.  xxi. 


to  operate  by  mere  legal  or  constructive  effect  on  cred.tois 
and  purchasers  becoming  such  before  it  was  recorded    or  m 
the  event  of  its  never  being  recorded,  cannot  be  supported  to 
the  extent  that,  by  the  failure  to  record  it  withn.  the  _tni-,e 
prescribed  by  the  statute,  the  deed  would  thereby  be  void  to 
all  intents  and  purposes.     Such  a  deed  would,  from  its  execu- 
tion be  binding  at  common  law  inter  partes,  though  never  re- 
corded; and  if,  after  the  expiration  of  the  time  prescribed  by 
statute,  it  should  be  reacknowledged  and  then  recorded,  either 
upon  such  reacknowledgment  or  upon  proof  of  witnesses,  it 
would   from  the  period  of  that  reacknowledgment  and  admis- 
sion to  record,  be  restored  to  its  full  effect  of  notice,  which 
would,  by  construction,  have  followed  from  its  being  record- 
ed originally  within  the  time  prescribed  by  law."  * 


5  De  Lane  v.  Moore,  14  How.  253, 
265,  14  L.  ed.  409,  414.     The  court 
states  that  its  views  are  sustained 
by    numerous    decisions,    which    it 
cites.    In  Steele  v.  Mansell,  6  Rich. 
437,  454,  it  is  said:     "In  the  con- 
fidence which  .parties  repose  in  each 
other,  hundreds  of  deeds  are  never 
registered,   and   thousands   are  not 
registered  within  six  months.     If  a 
deed  was  registered  before  the  right 
of  a  creditor  or  purchaser  arose,  of 
what    consequence   can   it   be,    that 
the   registration   was   delayed   until 
the  six  months  had  expired?     Being 
without  registration  good  as  to  the 
party  who  made  it,  the  deed  might, 
as  to  all  other  persons,  be  consid- 
ered as  if  it  had  been  executed  on 
the  day  it  was  registered — in  other 
words,  as  if  it  had  been  re-executed 
or  acknowledged   on  the  day.     So 
if  that  party  should  have  been  dead 
on  the  day  of  registration,  the  deed 
good  as  to  his  heirs  might  be  con- 
sidered as  if  it  had  been  then  con- 
firmed by  them.     Even  if  infancy, 


coverture,  or  other  disability  should 
prevent  the  supposition  of  confirma- 
tion on  the  day  of  registration,  why 
should  not  the  deed,  binding  as  to 
all  the  world  then  existing,  acquire 
by  such  registration  such  indefeasi- 
bilily,  as  thence  arises,  against  that 
part  of  the  world  which  afterward 
sets  up  opposing  rights  subsequently 
acquired?     By   delaying   beyond   a 
prescribed    time,    the   grantee    in    a 
deed  has  lost  the  right  to  insist  that 
the  tardy  registration  shall  have  re- 
lation to  the  date   of  the  deed   so 
as    to    prevail    against    intervening 
claims,  but  why  should  he  lose  the 
benefit  of  registration  from  the  day 
it  was  made?     As   regards   notice 
to  be  obtained  by  search  of  a  regis- 
try, the  same  search   which  would 
disclose  a  deed  registered  within  a 
prescribed  time,  would  disclose  one 
registered    after    the    expiration    of 
the  time;    and   the   same   fraud   or 
disappointment  of  past  expectation, 
which  would  arise  from  a  first  deed 
being  registered  between  the  search 


CHAP.   XXI.]    REGISTRY  LAW   OF  SEVERAL  STATES. 


1131 


and  the  execution  of  a  second  one, 
might  ensue  whether  the  registra- 
tion of  the  first  one  was  or  was 
not  within  a  prescribed  time  from 
its  date.  If  it  should  be  decided 
that  registration  after  the  time  does 
not  avail  against  a  subsequent  deed 
executed  after  this  registration  and 
registered  in  time,  a  bona  fide  pur- 
chaser, whose  conveyance  was  reg- 
istered after  the  expiration  of  six 
months,  say  only  seven  months, 
from  its  date,  and  whose  grantor 
had  afterward  lived  many  years 
solvent  and  honest,  might,  when 
these  years  were  past,  be  deprived 
of  his  land,  because  at  last  his 
grantor  had  fallen  into  embarrass- 
ment, and,  under  execution  against 
him,  the  land  had  been  sold.  If  it 
should  be  held  that  the  judgment 
against  the  grantor  had  not  prefer- 
ence   over    the    conveyance    tardily 


registered,  and  that  notice  to  a 
purchaser  at  sheritt's  sale  under  the 
judgment  would,  as  to  him,  stand 
in  the  place  of  regular  registratiorv, 
then  the  right  of  the  fair  owner  by 
former  purchase  to  hold  his  land 
would  depend  upon  his  viligance  in 
giving  actual  notice  of  his  convey- 
ance whenever  the  land  was  offered 
for  sale  by  the  sheriff,  until  it  might 
happen  that  a  sale  could  be  made, 
when  notice  could  not  be  brought 
home  to  a  purchaser,  who  would 
probably  have  got  a  bargain  by  rea- 
son of  the  very  efforts  the  owner 
had  made  to  save  his  rights.  Hu- 
man sagacity  could  not  foretell  the 
extent  of  disastrous  influence 
which  such  a  decision  would  have 
upon  the  land  titles  of  the  State." 
See,  also,  Wood  v.  Owings,  1 
Cranch,  239,  2  L.  ed.  94. 


CHAPTER  XXII. 


REGISTRATION  OF  DEEDS. 


626.  In  general.  § 

627.  In  England. 

628.  Registration   in  the  United 

States. 

628a.  Estoppel  by  delay  in  record- 
ing. 

628b.  Constitutionality  of  retro- 
active recording  acts. 

629.  Registration    not    necessary 

between  the  parties. 
629a.  Duty  of  purchaser  to  exam- 
ine the  records. 

630.  Registration    of    mortgages 

in  book  of   deeds. 

631.  Mortgagee      considered      a 

purchaser. 

632.  Pre-existing  debt. 

633.  Assignee  of  mortgage  con- 

sidered a  purchaser. 

634.  Judgment  creditors. 

635.  In    some    States    judgment 

creditor  considered  with- 
in the  registry  acts. 

636.  Actual  notice  subsequent  to 

the  lien  in  these  States. 

637.  Purchasers      at      execution 

sale. 

638.  Purchasers     at     such     sale 

with  notice. 

639.  Rights  of  judgment  creditor 

as  purchaser — Comments. 

640.  General       rule  —  Judgment 

creditor  is  not  bona  fide 
purchaser. 

641.  Contrary  rule  in  Iowa. 
641a.  In  other  States. 

1132 


642.  Comments. 

643.  Mortgage       for      purchase 

money. 
643a.  Third      person      advancing 

money. 
643b.  Execution  at  same  time  not 

essential. 

644.  Administrator's     deed     and 

prior    unrecorded     mort- 
gage. 

645.  Compliance     with     prelimi- 

nary requirements. 

646.  Illustration — Attesting    wit- 

nesses. 

646a.  Statutes  requiring  payment 
of  taxes  prior  to  regis- 
tration. 

646b.  Such  statutes  held  to  be 
constitutional. 

646c.  Comments. 

647.  Attachment  at  time  of  ac 

knowledgment. 

648.  Incapacity  to  take  acknowl- 

edgment. 

649.  Omission      of      name      of 

grantee. 

650.  Description  of  land. 
650a.  Christian  names  in  record. 
650b.  Nickname. 

651.  Illustrations   of   description 

insufficient    to    give    con- 
structive notice. 

652.  Illustrations  where  purchas- 

er bound,  though  descrip- 
tion inaccurate. 


CHAP.    XXII.] 


REGISTRATION   OF   DEEDS. 


1133 


653.  Description    by    impossible 

sectional  number. 

654.  Distinction  between  descrip- 

tion in  deed  and  in  mort- 
gage. 

655.  Comments. 

656.  Instruments  not  entitled  to 

registration. 

657.  Illustrations. 

658.  Want  of  delivery. 

658a.  Showing       deed       forgery 
against  decedent. 

659.  Equitable  mortgages. 

660.  Assignment  of  mortgage. 

661.  In    some    States,    defective 

deeds  if  recorded  impart 
notice. 

662.  In  Kansas. 

663.  Registration        in       wrong 

county. 

664.  Land  in  two  counties. 

665.  Registration     of     copy     of 

deed  in  proper  county. 

666.  Certified   copy  of   deed   re- 

corded   in    wrong   county 
as  evidence. 

667.  Presumption   of   actual   no- 

tice from  examination  of 
records. 

668.  Comments. 

669.  Change    of    boundaries    of 

county. 
669a.  Purchaser  for  nominal  con- 
sideraiion     as     purchaser 
for  value. 

670.  Purchaser    under    quitclaim 

deed — Comments. 

671.  View    that    such    purchaser 

is  not  entitled  to  the  pro- 
tection of  the  registry 
acts. 

672.  View    that    such    purchaser 

is  entitled  to  the  full  pro- 
tection of  the  registry 
laws. 

673.  Comments. 


§  674. 


675. 
676. 


676a, 

677. 
678. 

679. 

680. 

681. 


682. 
683. 


684. 

685. 
686. 
687. 


688. 

689. 
690. 
691. 

692. 

693. 

694. 


Intention  in  quitclaim  deed 
to  pass  grantor's  interest 
only. 

Another  illustration. 

Reservation  in  quitclaim 
deed  as  affecting  prior 
void  or  voidable  deed. 

Quitclaim  deed  as  color  of 
title. 

Record  partly  printed. 

Interest  of  recording  of- 
ficer. 

Time  at  which  deed  is  held 
to  be  recorded. 

Mistake  of  copying  deed  in 
record — Conflicting  views 
— Comments. 

View  that  grantee  is  not  af- 
fected by  mistake  in 
copying  deed. 

Reasonable  precaution. 

Contrary  view  that  pur- 
chaser is  bound  by  what 
appears  upon  record. 

Fuller  presentation  of  this 
view. 

Views  of  Mr.  Pomeroy. 

Comments. 

Ef^fect  of  mistake  in  copy- 
ing deed  when  considered 
recorded  as  soon  as  filed. 

EflFect  of  mistake  where 
opposite  view  prevails. 

Continued. 

Destruction    of    record. 

Proof  of  deed  where  record 
is  destroyed. 

Index  as  part  of  the  rec- 
ord— Comments. 

View  that  deed  improperly 
indexed  does  not  give 
constructive  notice. 

Decisions  in  Iowa  on  this 
question. 


1134 


THE  LAW  OF  DEEDS. 


[chap.  XXU. 


§  695.  View  that  mistalce  in  in- 
dex has  no  effect  upon 
record. 

696.  Comments. 

697.  Liability    of    recording    of- 

ficer for  error. 

697a.  Duty  of  recording  officer. 

697b.  Required  to  perform  statu- 
tory duty  only. 

697c  Liability  of  officer  for  neg- 
ligence. 

697d.  Damages. 

697e.  Damages  must  be  caused  by 
official  default. 

697f.  When  statute  of  limitations 
begins  to  run. 

698.  Correction    of    mistake    in 

record. 

699.  Reformation  of  deed— Cor- 

recting record. 

700.  Copy  of  seal. 

70L  Filing  deed  with  person  in 
charge  of  office. 

702.  Comments. 

703.  Registration  of  deeds  when 

State  is  in  rebellion. 

704.  Payment  of  fees. 

705.  Proof    of    time    at    which 

deed  is  recorded. 

706.  Withdrawing  deed  filed  for 

record. 

707.  Constructive  notice. 

708.  Deposit  subject   to   further 

order. 

709.  Priority  between  deeds  re- 

corded on  same  day. 

710.  Facts  of  which  the   record 

gives  notice. 
710a.  Presumption   of   knowledge 
of   rights  of  others. 


711.  Notice  of  unrecorded  deed 

from  notice  of  power  of 
sale. 

712.  Record    is    not    notice    to 

prior  parties. 

713.  Record    is    notice    only    to 

purchasers  under  the  same 
grantor. 

714.  Illustrations. 

715.  Record  of  deed  subsequent 

to  mortgage  not  notice  to 
mortgagee. 

716.  Subsequent  purchaser  should 

notify  mortgagee. 

717.  Actual  notice. 

718.  Notice  of  unrecorded  deed. 

719.  Unrecorded    deed    and    re- 

corded   purchase    money  . 
mortgage. 

720.  Comments. 

721.  Subsequently   acquired   title 

inuring      to      benefit      of 
grantee. 
122.     Comments. 

723.  How    far    back    purchaser 

must  search. 

724.  Correct  rule. 

724a.  Admission    in    evidence    of 

copy     of      record      from 

other  states. 
724b.  Statute    of    United    States 

as   to   admission   of  copy 

of  record. 
724c.  What    is    a    record    under 

this  statute. 
724d.  Requirements  of  statute  to 

be  observed. 
724e.  Not    the    only    method    of 

proof. 


§  626.  In  general. — The  design  of  the  registration  acts 
is  to  afford  a  convenient  means  of  giving  knowledge  of  tlie 
contents  of  conveyances  affecting  the  title  to  real  property. 
The  title  to  personal  property  is  transferred  by  a  change  of 
possession.    The  title  to  real  estate  is  conveyed  by  deed.     But 


CHAP.    XXII.]  REGISTRATION   OF   DEEDS.  1135 

the  owner  of  the  legal  title  may  not  be  in  the  possession  of 
the  premises,  and  the  record  supplies  notice  to  all  of  his  rights. 
Although  a  purchaser  may  have  no  actual  notice  of  previously 
recorded  deeds,  yet  he  is  bound  to  take  notice.  The  record  is 
open  to  his  inspection,  and  priority  of  title  is  determined,  aside 
from  tlie  question  of  notice  to  be  hereafter  considered,  by 
priority  of  record.  The  conveyance  which  is  first  recorded 
takes  precedence,  although  it  may  not  have  been  the  deed  first 
executed.  Between  tlie  original  parties,  except  in  a  few  States, 
the  force  and  validity  of  deeds  are  not  affected  by  registra- 
tion. But  in  contemplation  of  law,  every  one  has  notice  of  all 
deeds  conveying  from  one  person  to  another  any  interest  in 
land,  and  any  rights  subsequently  acquired  must  be  subordi- 
nate to  those  w'hich  the  records  disclose.  It  is  presumed  that 
the  records  will  show  every  claim,  title,  or  encumbrance  upon 
every  piece  of  land  within  the  jurisdiction  of  the  recording 
office.  An  opportunity  is  thus  given  to  every  intending  pur- 
cliaser  to  ascertain  in  whom  the  legal  title  lies,  and  to  what 
encumbrances  it  is  subject,  and  if  he  sees  fit  to  rely  upon  the 
representations  of  others  without  consulting  the  record,  he 
does  so  at  his  own  peril.  He  cannot  be  considered  an  inno- 
cent purchaser  in  law,  although  he  may  be  so  in  fact,  for  "the 
registry  laws  would  be  useless,  unless  subsequent  purchasers 
were  bound  to  take  notice  of  a  deed  previously  recorded."  ^ 

§  627.  In  England. — In  England  there  is  no  general 
system  of  registration  that  prevails  throughout  the  entire  king- 
dom. In  certain  counties,  systems  of  registration  have  been 
provided  by  dift'erent  acts  of  Parliament.  By  the  statute  of 
seventh  of  Anne,  which  provides  for  the  registration  of  con- 
veyances in  the  county  of  Middlesex,  it  is  declared  that  every 
deed  shall  be  "adjudged  fraudulent  and  void  against  any  sub- 
sequent purchaser  or  mortgagee,   for  valuable  consideration, 

1  Buchanan  v.  International  Bank,  297.     And  see  Chamberlain  v.  Bell, 

78  III.  500,  503;  Hager  v.  Spect,  52  7  Cal.  292,  68  Am.  Dec.  260;  Wood- 

Cal.  579;    Call  v.   Hastings,   3   Cal.  worth  v.  Guzman,  1  Cal.  203;  Bird 

179;   Mesick  v.  Sunderland,  6  Cal.  v.  Dennison,  7  Cal.  297. 


1136 


THE  LAW  OF  DEEDS. 


[chap.  XXII. 


unless  such  memorial  be  registered,  as  by  this  act  is  directed, 
before  the  registering  of  the  memorial  of  the  deed  or  convey- 
ance under  which  such  subsequent  purchaser  or  mortgagee 
shall  claim."  ^  At  an  early  date  it  was  determined  under  the 
English  registry  acts  that  their  object  was  to  prevent  imposi- 
tion upon  subsequent  purchasers  and  mortgagees  by  setting 
up  prior  secret  conveyances  and  fraudulent  encumbrances,  but 
that  if  the  purchaser  had  notice  of  a  prior  conveyance,  then 
that  was  a  secret  conveyance  by  which  he  was  not  injured,  and 
against  which  it  was  not  the  object  of  the  act  to  protect  him.* 
But  by  this  was  meant  actual  notice.  Nothing  is  said  in  the 
statutes  about  notice,  and  the  rule  became  established  that  a 
subsequent  purchaser  who  has  acquired  the  legal  estate  was 
not  charged  with  notice  of  a  prior  conveyance  from  its  regis- 
try alone.*  In  England,  the  notice  must  be  so  clearly  proved 
as  to  render  the  act  of  taking  and  and  registering  a  conveyance. 


2  The    different    registry    acts    in 
England    are:      West    Riding    of 

Yorkshire,  5  Anne,  c.  18;  East  Rid- 
ing of  Yorkshire  and  Kingston  on 
Hull,  6  Anne,  c.  35;  North  Riding 
of  Yorkshire,  8  George  II,  c.  6; 
Middlesex,  7  Anne,  c.  20;  Irish  Act, 
6  Anne,  c.  2. 

3  Le  Neve  v.  Le  Neve,  1  Amb. 
436.  Speaking  of  this  doctrine  of 
notice,  Lord  Eldon  in  this  case  says 
that  "the  ground  of  it  is  plainly 
this,  that  the  taking  of  a  legal  es- 
tate after  notice  of  a  prior  right 
makes  a  person  mala  Ude  purchas- 
er; and  not  that  he  is  not  a  pur- 
chaser for  a  valuable  consideration 
in  every  respect.  This  is  a  species 
of  fraud  and  dolus  mains  itself; 
for  he  knew  the  first  purchaser  had 
the  clear  right  of  the  estate,  and 
after  knowing  that  he  takes  away 
the  right  of  another  person  by  get- 
ting  the   legal   estate."     See,   also, 


Tunstall  v.  Trappes,  3  Sim.  301 ; 
Hines  v.  Dodd,  2  Atk.  275;  Cheval 
v.  Nichols,  Strange,  664. 

*  Wiseman  v.  Wcstland,  1  Younge 
&  J.  117;  Ford  v.  White,  16  Beav. 
120;  Hodgdon  v.  Dean,  2  Sim,  & 
St.  221 ;  Morecock  v.  Dickens,  Amb. 
678;  Underwood  v.  Lord  Cour- 
town,  2  Schoales  &  L.  40;  Bushell 
V.  Bushell,  1  Schoales  &  L.  90.  In 
Ford  V,  White,  supra,  the  Master 
of  the  Rolls,  speaking  of  the  effect 
of  the  registry  acts  on  the  question 
of  notice,  said :  "Nobody  regrets 
more  than  I  do  the  effect  of  the 
decisions  which  have  qualified  the 
act.  The  legislature  never  intended 
that  any  notice  should  nullify  it, 
the  object  being  that  all  encum- 
brances should  rank  according  to 
their  priority  on  the  register.  The 
court,  however,  has  held  that  where 
a  person  who  has  obtained  a  se- 
curity has  notice  of  a  prior  encuro- 


CHAP.   XXII.]  REGISTRATION  OF  DEEDS.  1137 

in  prejudice  to  the  known  title  of  another,  an  act  of  fraud. 
And  Sir  WilHam  Grant  regretted  that  the  rule  had  been  even 
extended  that  far.  "It  has  been  much  doubted,"  said  he, 
"whether  courts  ought  ever  to  have  suffered  the  question  of 
notice  to  be  agitated  as  against  a  party  who  has  duly  regis- 
tered his  conveyance."  ^  But  the  courts  in  that  country  have 
held  that  in  certain  cases  actual  notice  of  a  prior  registered 
conveyance  may  be  presumed  on  the  part  of  a  subsequent  pur- 
chaser, when  it  is  proven  that  he  has  made  an  examination  of 
the  proper  records.^ 

§  628.  Registration  in  the  United  States. — In  this 
country,  in  all  of  the  States,  there  are  statutes  which  provide 
for  the  registration  of  conveyances  aft'ecting  the  title  to  real 
property,  after  they  have  been  properly  acknowledged.  An 
abstract  of  these  was  given  in  the  preceding  chapter.  These 
statutes  have  been  looked  upon  with  favor  by  the  courts.  They 
embrace  equitable  estates  and  interest  in  land,  as  well  as  legal.'' 


brance,  it  is  inequitable  to  allow  McClanachan,  2  Gratt.  280;  Wilder 
him  to  obtain  a  priority  over  the  v.  Brooks,  10  Minn.  50,  88  Am.  Dec. 
first  encumbrancer  by  the  mere  49;  Hunt  v.  Johnson,  19  N.  Y.  279. 
priority  of  registration.  The  de-  In  Bellas  v.  McCarthy,  10  Watts, 
cisions  establish  this  and  they  must  13,  25,  Rogers,  J.,  said:  "To  put 
not  be  departed  from,  otherwise  equitable  titles  on  a  different  foot- 
many   titles    would    be    destroyed."  ing  from  legal  titles  would  be  in- 

5  In  Wyatt  v.  Barwell,  19  Ves.  tolerable  in  Pennsylvania,  where  we 
438.  And  see  Rolland  v.  Hart,  have  no  means  of  compelling  the 
Law  R.  6  App.  678;  Davis  v.  Earl  conveyance  of  the  legal  title,  and 
of  Strathmore,  16  Ves.  419.  where    one-third    or    perhaps    one- 

6  Lane  v.  Jackson,  20  Beav.  535;  half  of  the  estates  are  in  the  same 
Hodgson  V.  Dean,  2  Sim.  &  St.  221.  predicament.      And    this    has    been 

■^  Parkist  v.  Alexander,    1   Johns.  the   view   taken   of   the  act   in   the 

Ch.  394;  Alderson  v.  Ames,  6  Md.  numerous    cases    which    have    been 

52;    Doyle   v.   Teas,   4    Scam.   202;  cited,   to   notice  which   particularly 

Worley   v.    State,    7    Lea    (Tenn.),  would  swell  this  opinion  to  an  un- 

382;  Bellas  v.  McCarty,   10  Watts,  reasonable    extent.      The    Act    of 

13 ;   Digman  v.   McCollum,  47   Mo.  18th  of  March,  1775,  is  not  confined 

372;    Russell's    Appeal,    3    Harris,  to  deeds,  but  directs  that  every  re- 

Shriver,   3    Md.    Ch.   381 :    Siter   v.  corder  of  deeds,  etc,  shall  keep  a 
Deeds,  Vol.  H.— 72 


1138 


THE  LAW  OF  DEEDS. 


[chap.  XXII. 


The  record  gives  notice  to  all  the  world ;  and  the  doctrine  of 
actual  notice,  not  derived  from  an  iiispection  of  the  record,  as 
will  be  more  fully  treated  of  in  a  subsequent  part  of  this  treat- 
ise, also  generally  prevails  in  this  country.  If  by  the  provi- 
sions of  a  statute,  deeds  of  trust  and  mortgages  have  no  valid- 
ity as  against  purchasers  and  creditors  until  they  have  been 
registered,  they  become  operative  only  after  they  have  been 
registered  and  notice,  therefore,  does  not  supply  the  place  of 
registration.'     Where  the  priority  of  mortgages  is  fixed  by 


fair  book  in  which  he  shall  imme- 
diately make  an  entry  of  every 
deed  or  writing  brought  into  his 
office  to  be  recorded.  The  language 
of  the  act  is  sufficiently  comprehen' 
sive  to  embrace  equitable  as  well 
as  legal  titles,  and  the  record  of 
an  equitable  tide  is  notice  to  all 
subsequent  purchasers.  It  is  not 
doubted  that  a  free  conveyance 
duly  registered  operates  to  give 
full  effect  to  the  legal  and  equitable 
estate  conveyed  thereby,  against  a 
subsequent  conveyance  of  the  same 
legal  and  equitable  estate.  Where 
a  person  has  purchased  an  equitable 
title,  which  he  has  taken  care  to 
put  upon  the  record,  in  conformity 
to  the  directions  of  the  act,  it 
would  be  difficult  to  persuade  any 
person  that  there  was  any  justice 
in  postponing  his  right  in  favor  of 
a  subsequent  purchaser.  This,  in 
truth,  will  not  be  pretended.  And 
when  a  purchase  has  been  made 
of  an  equitable  estate,  which  has 
undergone  one  or  more  operations 
by  legal  conveyances,  which  have 
been  immediately  recorded,  why 
should  a  second  be  postponed  to  a 
prior  purchaser,  who  has  neglected 
to  have  his  deed  recorded,  who  has 
neither  paid  taxes  nor  taken  pos- 


session of  the  property,  and  who 
has  done  no  act  or  thing  in  asser- 
tion of  his  right,  calculated  to  give 
notice  of  his  claim?  Justice  and 
sound  policy  would  seem  to  re- 
quire that  in  such  cases  nothing 
short  of  clear,  positive,  and  explicit 
notice  should  prejudice  the  right 
of  a  second  fair  and  bona  fide  pur- 
chaser. But  it  is  said  that  the  de- 
fendants have  clothed  themselves 
with  the  legal  title,  and  that  where 
the  equities  are  equal,  the  maxim 
is,  qui  prior  in  tempore  potior  est 
in  jure.  1  hese  elementary  princi- 
ples are  not  denied,  but  they  have 
no  application  to  the  facts  of  the 
case.  The  rule  only  applies  be- 
tween persons  who  have  been 
equally  innocent  and  equally  dili- 
gent. The  parties  are  not  in  equal 
equity.  One  has  been  viligant  and 
the  other  sleepy,  and  this  leaves 
room  for  the  application  of  the 
maxim  vigUantibiis,  non  dormienti- 
bus  jiira  subveniunt.  And  when 
one  of  two  innocent  persons  must 
suffer,  the  loss  should  be  thrown  on 
him  whose  negligence  caused  it." 

8  Robinson  v.  Willoughby,  70  N. 
C.  358;  Leggctt  v.  Bullock,  Busb. 
283 ;  Fleming  v.  Burgen,  2  Ired. 
Eq.  584. 


CHAP.    XXII.]  REGISTRATION   OF   DEEDS. 


1139 


the  order  in  which  they  are  filed  for  record,  the  doctrine  of 
notice,  so  far  as  the  conveyances  of  this  character  are  con- 
cerned, would  not  prevail'  The  notice  given  by  the  registry 
is  equivalent  to  that  formerly  afforded  by  livery  of  seisin.^ 


§  628a.  Estoppel  by  delay  in  recording. — In  Wisconsin 
the  statute  declares  any  unrecorded  conveyance  void  as  against 
a  subsequent  purchaser  "whose  conveyance  shall  be  first  duly 
recorded."  Under  such  statute,  however,  it  was  held  that  a 
prior  purchaser  may,  by  delaying  to  record  his  conveyance, 
become  estopped  to  rely  on  bis  conveyance  as  against  one 
whom  he  has  led  to  believe  in  its  non-existence  and  to  act 
thereon  although  he  afterwards  gets  his  conveyance  on  record 
before  the  later  one.     The  decision  in  this  case  is  based  solely 


^Bercavv  v.  Cokerill,  20  Ohio  St. 
163;  Stansell  v.  Roberts,  13  Ohio, 
148,  42  Am.  Dec.  193.  In  the  for- 
mer case  it  is  said :  "By  the  Act 
of  March  16,  1838,  'declaratory  of 
the  laws  upon  the  subject  of  mort- 
gages' (S.  &  C.  469)  it  is  'declared 
and  enacted  that  mortgage  deeds 
do  and  shall  take  effect  and  ha  /e 
preference  from  the  time  the  same 
are  delivered  to  the  recorder  of  the 
proper  county,  to  be  by  him  en- 
tered upon  the  record.'  Under  this 
statute  and  that  of  1831  on  the 
same  subject,  it  has  been  uniform- 
ly held  in  a  long  series  of  decisions, 
that  a  mortgage  has  no  effect, 
either  in  law  or  equity,  as  against 
subsequently  acquired  liens,  until 
its  delivery  to  the  recorder  of  the 
proper  county  for  record.  The  re- 
sult is  that  mortgages  have  priority 
in  the  order  of  their  respective  pre- 
sentation for  record :  Magee  v. 
Beatty,  8  Ohio,  396;  Stansell  v. 
Roberts,  13  Ohio,  148,  42  Am.  Dec. 


193;  Mayham  v.  Coombs,  14  Ohio, 
428;  Holliday  v.  Franklin  Bank  of 
Columbus,  16  Ohio,  533;  Woodruff 
V.  Robb,  19  Ohio,  212;  White  v. 
Denman,  1  Ohio  St.  110;  Brown  v. 
Kirkman,  1  Ohio  St.  116;  Fosdick 
V.  Barr,  3  Ohio  St.  471;  Bloom  v. 
Noggle,  4  Ohio  St.  45;  Sidle  v. 
Maxwell,  4  Ohio  St.  236;  Tousley 
V.  Tousley,  5  Ohio  St.  78.  And  in 
several  of  these  cases  it  was  ex- 
pressly held  that  this  rule  as  to 
priority,  is  not  affected  by  the  facf 
that  the  subsequent  mortgage  is 
taken  with  actual  notice  to  the 
mortgagee  of  a  prior  unrecorded 
mortgage." 

1  See  Bryan  v.  Bradley,  16  Conn. 
474;  Williamson  v.  Calton,  51  Me. 
452;  Matthews  v.  Ward,  10  Gill  & 
J.  443;  Caldwell  v.  Fulton,  31  Pa. 
St.  483,  72  Am.  Dec.  760;  Higbee 
v.  Rice,  5  Mass.  344,  4  Am.  Dec. 
63;  Blethen  v.  Dwinel,  34  Me.  135; 
Wyman  v.  Brown,  50  Me.  160. 


1140 


THE  LAW  OF  DEEDS.  [CHAP.  XXII. 


upon  principles  of  estoppel.^  The  court  says  :  "Since  the  adop- 
tion of  the  system  of  pubHc  registry  of  conveyances,  the  cus- 
tom of  prompt  registration  has  been  so  nearly  universal  that 
omissions  may  well  be  considered  neglect  of  those  precautions 
customarily  taken  to  assert  a  grantee's  rights  in  the  land,  and 
people  generally  have  become  accustomed  to  believe  that  all 
rights  will  so  appear  and  to  act  confidently  on  that  assump- 
tion ;  hence  such  conduct  is  to  be  expected  by  one  holding  an 
unrecorded  conveyance.  The  land  in  question  was  held  by  a 
dealer  in  real  estate,  so  that  the  likelihood  of  its  sale  was  ap- 
parent to  plaintiff.  She  must  realize  that,  in  event  of  sale, 
the  record  advertised  Herman  as  the  person  to  whom  a  pur- 
chaser must  apply,  either  to  clear  the  title  from  the  lien  of  the 
mortgage  or  for  information  as  to  the  validity  or  amount  of 
that  lien,  and,  therefore,  negligently  placed  it  in  Herman's 
power  to  deceive  or  mislead  a  purchaser,  who,  both  by  law 
and  by  custom,  would  have  the  right  to  rely  on  the  record. 
Her  withholding  her  assignment  from  record  was  a  persistent 
declaration  to  all  persons  dealing  merely  with  the  title  to  realty 
that  Herman  owned  the  mortgage."  '  A  grantee  does  not 
abandon  the  title  conveyed  by  his  deed  by  failing  for  several 
years  to  register  it.*  The  great  weight  of  authority  undoubt- 
edly holds,  under  statutes  similar  to  the  Wisconsin  statute,  that 
an  instrument  recorded  subsequently  to  another  instrument,  is 
ineffective,  even  though  it  was  executed  before  the  other  in- 
strument was  recorded.* 

§  628b.     Constitutionality  of  retroactive  recording  acts. 

— Questions  have  some  times  arisen  as  to  the  constitution- 

2  Marling  v.  Mommensen,  127  land,  40  Neb.  464,  58  N.  W.  947; 
Wis.  363,  5  L.R.A.(N.S.)  412,  7  Blair  State  Bank  v.  Stewart,  57 
A.  &  E.  Ann.  Cas.  364.  Neb.  58,  11  N.  W.  370;  Rumery  r. 

3  Marling  v.   Mommensen,  supra.       Loy,  61    Neb.   755.  86   N.   W.  478; 
*  Bond  V.  Wilson,  129  N.  C.  325,  '    Ames    v.    Miller.    65    Neb.    204,    91 

40  S.  E.  179.  N.  W.  250;  Wilhelni  v.  Wilken,  149 

5  Crouse  v.  Michell,  130  Mich.  N.  Y.  447,  12  L.R.A.  370,  44  N.  E. 
347,  90  N.  W.  32;  Burrows  V.  Hov-      82. 


CHAP.    XXII.]  REGISTRATION   OF  DEEDS.  1141 

ality  of  recording  acts  which  are  retroactive  as  to  pre-existing 
instruments.  While  questions  arising  out  of  the  construction 
of  such  statutes  are  outside  the  scope  of  this  treatise,  it  may 
be  stated  generally  that  it  has  been  held  by  a  great  many  cases 
to  be  within  the  undoubted  power  of  state  legislatures  to  pass 
recording  acts  by  which  the  elder  grantee  is  postponed  to  a 
younger  grantee  if  the  prior  deed  is  not  recorded  within  a 
limited  time.  The  only  limitation  as  to  such  legislation  is 
that  a  reasonable  time  must  be  given  to  place  the  instrument 
on  record  after  the  law  becomes  effective.  If  such  time  is 
given,  however,  the  law  does  not  impair  the  obligation  of 
contracts.* 

§  629.     Registration  not  necessary  between  the  parties. 

— It  is  unnecessary  to  observe  that  as  between  the  parties, 
a  deed  is  perfectly  valid  without  registration,  unless  there  is 
some  statute  that  imperatively  requires  recording  as  one  of 
the  essential  elements  of  the  execution  of  the  deed.  The  deed 
is  invalid  as  against  certain  persons  unless  recorded,  but  "as 
between  the  parties  to  a  deed,  it  has  been  frequently  held  the 
title  passes,  notwithstanding  the  deed  may  not  have  been  re- 
corded, or  lodged  with  the  clerk  for  that  purpose."  ^  "None 
of  the  registering  acts  have  been  considered  as  destroying  the 
conveyance  as  between  the  parties  to  it  from  the  omission  to 
record  it.  The  record  was  only  intended  for  the  benefit  of 
purchasers  and  creditors."  '  "An  unregistered  deed  is  in  no 
case  void;  it  is  always  good  as  against  the  grantor  and  his 

6  Jackson  v.  Lamphere,  3  Pet.  92;  Ray  v.  Wilcoxon,  107  N.  C 
280,  7  L.  ed.  679;  Vance  v.  Vance,  514.  Where  a  married  woman  ob- 
108  U.  S.  514,  27  L.  ed.  808;  Staf-  tains  the  legal  title  to  land  by  a 
ford  V.  Lick,  7  Cal.  479.  See  deed  from  her  husband,  she  must 
Knights  of  the  Maccabees  of  the  file  it  for  record,  or  it  will  not  pre- 
World  V.  Nitsch,  69  Neb.  372,  and  vail  as  against  subsequent  purchas- 
extended  note  on  the  subject,  5  A.  ers  without  notice;  Russell  v.  Nahl, 
&  E.  Ann.  Cas.  257.  2  Tex.  Civ.  App.  60. 

7  McClain  v.  Gregg,  2  Marsh.  A.  8  Jackson  v.  West,  10  Johns.  466. 
K-  454;  Raines  v.  Walker,  11  Va. 


1142 


THE  LAW  OF  DEEDS. 


[chap.  XXU. 


heirs  "  '  And  failure  of  the  grantee  to  register  or  record  his 
deed  does  not  operate  of  itself  as  an  abandonment  of  title.^ 
Where  the  genuineness  of  the  deed  was  admitted,  "it  proved," 
said  Mr.  Justice  Marshall  of  Kentucky,  "a  transfer  of  the  title 
from  the  grantor  to  the  grantee,  and  was  good  evidence  of  this 
fact,  not  only  between  the  immediate  parties,  but  against  all 
the  world  except  purchasers  for  a  valuable  consideration  with- 


9  Chief  Justice  Kent,  in  Jackson 
V.  Burgott,  10  Johns.  457,  6  Am. 
Dec.  349;  Fitzhugh  v.  Croghan,  2 
Marsh.  J.  J.  429,  19  Am.  Dec.  140; 
Guerrant  v.  Anderson,  4  Rand.  20S; 
Sicard  v.  Davis,  6  Peters,  124; 
Phillips  V.  Green,  3  Marsh.  A.  K. 
7,  13  Am.  Dec.  124 ;  Smith  v.  Stark- 
weather, 5  Day,  207;  Whittemore 
V.  Bean,  6  N.  H.  47;  Rolls  v.  Gra- 
ham, 6  Mon.  B.  120;  French  v. 
Gray,  2  Conn.  92;  Boling  v.  Ewing, 
9  Dana,  76;  Hancock  v.  Beverly,  6 
Mon.  B.  531;  Wade  v.  Greenwood, 
2  Rob.  (Va.)  474,  40  Am.  Dec.  759; 
Vose  V.  Morton,  4  Cush.  27,  SO  Am. 
Dec.  750;  Moore  v.  Thomas,  1  Or. 
201 ;  Van  Husan  v.  Heames,  96 
Mich.  504;  Snow  v.  Lake,  20  Fla. 
656,  51  Am.  Rep.  625;  Stewart  v. 
Matthews,  19  Fla.  752;  Christy  v. 
Burch,  25  Fla.  942;  Warnock  v. 
Harlow,  96.  Cal.  298,  31  Am.  St. 
Rep.  209;  Roane  v.  Baker,  120  III. 
308;  Leaver  v.  Spink,  65  111.  441; 
Shirk  V.  Thomas,  121  Ind.  147,  16 
Am.  St.  Rep.  391;  Perdue  v.  Al- 
dridge,  19  Ind.  290;  Betts  v. 
Letcher,  1  S.  D.  182;  Ray  v.  Wil- 
coxson,  107  N.  C  514;  Brem  v. 
Lockhart,  93  N.  C.  191 ;  Stevens  v. 
Morse,  47  N.  H.  532;  Fitzgerald  v. 
Wynne,  1  D.  C.  App.  107;  Davis  v. 
Lutkiewiez,  72  Iowa,  254;  Carle- 
ton  V.  Byington,  18  Iowa,  482; 
Gibson  v.   Brown,  214  III  330,  73 


N.  E.  578;  Adams  v.  Tolman,  77 
111.  App.  179,  afif'd  in  180  111.  61, 
54  N.  E.  174;  Blair  v.  Whitaker, 
31  Ind.  App.  664,  69  N.  E.  182; 
Kelly  V.  Bramblett,  26  Ky.  L.  ^ep. 
167,  81  S.  W.  249;  Willett  v.  An- 
drews, 106  La.  319,  30  So.  883; 
Wilkins  v.  McCorkle,  112  Tenn. 
688,  80  S.  W.  834 ;  Morgan  v.  Snod- 
grass,  49  W.  Va.  387,  38  S.  E.  695 ; 
Licata  v.  De  Corte,  50  Fla,  563,  39 
So.  58.  See,  also,  Tyler  v.  Currier, 
147  Cal.  31,  81  Pac.  319;  Perry  v. 
Clift,  (Tenn.),  54  S.  W.  121; 
Whalon  v.  North  Platte,  etc.  Co.,  11 
Wyo.  313,  71  Pac.  995;  Martin  v. 
Bates,  20  Ky.  L.  Rep.  1798,  50  S. 
W.  38;  McCrum  v.  McCrum,  127 
Iowa,  540,  103  N.  W.  771.  In  re 
Lane's  Estate,  79  Vt.  323,  65  Atl. 
102 ;  Mitchell  v.  Cleveland,  76  S.  C. 
432,  57  S.  E.  33.  In  Martin  v. 
Quattlebam,  3  McCord,  205,  it  is 
said:  "On  the  second  question,  it 
is  not  necessary  to  the  validity  of 
a  deed  that  it  should  be  recorded. 
Recording  only  becomes  necessary 
in  particular  when  there  are  double 
conveyances.  If  the  same  grantor 
convey  to  two,  he  whose  deed  is 
duly  recorded  shall  hold."  See, 
also,  Phillips  v.  Hodges,  109  N.  C. 
248. 

1  Bond  v.  Wilson,  129  N.  C  325, 
40  S.  E.  179. 


CHAP.    XXII.]  REGISTRATION   OF  DEEDS. 


1143 


out  notice,  and  creditors."  ^  A  deed  from  the  State  is  per- 
mitted but  not  required  to  be  recorded,  and  is  valid  against  all 
persons.'  And  a  deed  executed  by  one  who  has  title  to  land  is 
effectual  to  pass  his  interest  although  his  title  is  not  of  record.* 
But  if  registration  is  necessary  to  the  validity  of  the  convey- 
ance, as  is  sometimes  required  by  statute  in  the  case  of  pro- 
ceedings in  the  sale  of  land  for  taxes,  then  recording  becomes 
a  condition  precedent  and  no  title  passes,  unless  there  has  been 
a  strict  compliance  with  the  statute.^  All  that  registration 
does  is  to  impart  notice.  It  does  not  add  to  its  effect  as  a  con- 
veyance.^ 

§  629a.     Duty  of  purchaser  to  examine  the  records. — 

It  is  the  duty  of  the  purchaser  to  examine  the  records  and 
whether  he  performs  this  duty  or  not,  notice  will  be  imputed 
to  him  of  every  fact  which  an  examination  of  the  records 
would  disclose.''  If  an  instrument  in  the  chain  of  title  is 
missing,  and  the  purchaser,  without  inspecting  or  demanding 
an  inspection  of  such  instrument,  consummates  the  purchase, 
he  is  chargeable  with  any  fact  which  such  instrument  may  show 
by  which  its  validity  may  be  affected.'  Even  through  the  fault 
of  the  abstracter  a  purchaser  has  no  actual  knowledge  of  a 
judgment,  yet  if  it  is  of  record,  he  is  charged  with  notice  of 

2  BoUng  V.  Ewing,  9  Dana,  16.  rent  until  the  deeds  conveying  such 

8  Patterson  v.  Langston,  69  Miss.  estate  have  been  recorded :     Nichel 

400.  V.  Brown,  75  Md.  172. 

*  Sowles  V.  Butler,  71  Vt.  271.  ^  Shirk  v.  Thomas,   121  Ind.  147, 

6  Clark  V.  Tucker,  6  Vt.  181 ;  Gid-  22  N.  E.  976,  16  Am.  St.  Rep.  381. 

dings  V.   Smith,   15  Vt.  344;   Mor-  ^  Miller  v.   Holland,  84  Va.  652, 

ton  v.  Edwin,  19  Vt.  81.     Under  a  5   S.  E.  701 ;   Fulkerson  v.   Taylor, 

statute  which  provides  that  no  es-  102  Va.  314,  46  S.  E.  309 ;  Keesling 

tate   above   seven  years   shall   pass  v.  Doyle,  8  Ind.  App.  43,  35  N.  E. 

or  take  effect  unless  the  deed  con-  126;    Anderson    v.    Reid,    14    App. 

veying  the  same  shall  be  executed,  D.    C.    54;    Healey    v.    Worth,    35 

acknowledged,  and  recorded,  lease-  Mich.  166. 

hold   estates   for  ninety-nine   years  8  Lyon  v.  Gombert,  63  Neb.  630, 

do  not  pass  title  so  as  to  relieve  88  N.  W.  774. 

the   grantor    from   the   payment   of 


1144  THE  LAW  OF  DEEDS.  [CHAP.  XXII. 

it.'  Generally  speaking  a  person  who  has  placed  his  deed  on 
record  may  remain  silent  and  passive  so  far  as  notice  of  it  to 
other  persons  is  concerned.^  If  a  person  purchases  property 
on  which  there  is  a  morto^age  duly  recorded  without  examin- 
ing the  records,  but  relying  on  the  statement  of  the  grantor 
that  there  was  no  encumbrance  on  the  lot,  he  cannot  be  re- 
garded as  a  purchaser  in  good  faith.  If  he  erects  a  building 
on  the  lot  he  will  not  be  allowed  compensation  for  the  build- 
ing on  the  foreclosure  of  the  mortgage.^ 

§  630.     Registration  of  mortgages  in  book  of  deeds. — 

According  to  one  line  of  authority,  subsequent  bona  Me  pur- 
chasers or  mortgagees  are  not  bound  by  the  notice  given  by 
the  registration  of  a  mortgage  recorded  in  a  book  of  deeds.' 
A  conveyed  land  to  B  as  security  for  a  loan,  subject  to  a 
mortgage  to  C,  the  conveyance  being  recorded  as  a  deed,  and 
a  short  time  afterward,  and  after  the  payment  of  the  loan,  B 
purchased  the  land  from  A,  and  on  the  latter's  securing  a  sat- 
isfaction from  C  of  his  mortgage,  B  paid  A  the  whole  price 

9  Stastny  v.  Pease,  124  Iowa,  587,  359,   91    Am.    Dec.    163 ;    White    v. 

100  N.  W.  482.     But  see  Carey  v.  Moore,  1  Paige,  551 ;  Clute  v.  Rob- 

Rauguth,  82  111.  App.  418.  ison,     2    Johns.     595;     Warner    v. 

1  Eastwood  V.  Standard  Mines  &  Winslow,  1  Sand.  Ch.  430;  Corde- 
Milling  Co.,  11  Idaho,  195,  81  Pac.  violle  v.  Dawson,  26  La.  Ann.  534; 
382.  Brown    v.    Dean,    3    Wend.    208; 

2  Beach  v.  Osborne,  74  Conn.  405,  Grimstone  v.  Carter,  3  Paige,  421 ; 
50  Atl.  1019,  1118.  See,  also,  as  to  24  Am.  Dec.  230;  Dey  v.  Dunham, 
notice  given  by  record :  Reynolds  v.  2  Johns.  Ch.  182 ;  McLanahan  v. 
Haskins,  68  Vt.  426,  35  Atl.  349 ;  Reeside,  9  Watts,  508,  36  Am.  Dec. 
Pyles  V.  Brown,  189  Pa.  St.  164,  136;  Fisher  v.  Tunnard,  25  La. 
42  Atl.  11,  69  Am.  St.  Rep.  794;  Ann.  179;  Colomer  v.  Morgan,  13 
McCusker  v.  Goode,  185  Mass.  607,  La.  Ann.  202.  The  record  of  a 
71  N.  E.  76;  Dalmazzo  v.  Simmons,  deed  in  the  mortgage  record  is 
25  Ky.  L.  Rep.  1352,  78  S.  W.  179;  not  constructive  notice  of  the  deed 
Kendall  v.  J.  I.  Porter  Lumber  Co.,  to  subsequent  purchasers :  Drake 
69  Ark.  442,  64  S.  W.  220.  v.  Reggel,  10  Utah,  376;  Abraham 

8  James  v.  Morey,  2  Cowen,  246,      v.   Mayer,  27  N.   Y.   Supp.  264;  7 
14  Am.  Dec.  475,  6  Johns.  Ch.  417 ;       Misc.  Rep.  250. 
Calder    v.    Chapman,    52    Pa.    St^ 


CHAP.   XXII.] 


REGISTRATION  OF  DEEDS. 


1145 


of  the  land;  C  had  before  this  time  assigned  his  mortgage  to 
another,  D,  but  the  latter  had  neglected  to  have  his  assign- 
ment recorded;  C  received  no  consideration  for  executing  the 
release  of  the  mortgage,  but  B  had  no  notice  of  this  fact,  or 
of  the  assignment  to  D.  It  vvas  held  that  the  lands  in  the 
hands  of  B,  and  purchasers  from  him,  were  discharged  from 
the  mortgage,  and  that  although  the  recording  of  the  deed  to 
B  was  a  nullity  in  the  first  instance,  yet  after  he  purchased 
and  paid  for  A's  equity  in  the  land,  the  record  of  the  deed 
became  operative,  and  the  transaction  might  be  considered  as 
equivalent  to  the  delivery  of  a  deed  which  had  been  recorded 
in  expectation  of  a  future  sale.  But  it  was  also  held  that  if 
the  assignment  of  the  mortgage  had  been  recorded  while  the 
deed  remained  as  security  for  A's  loan,  the  land  in  the  hands 
of  B  would  have  been  subject  to  the  mortgage  thus  assigned.* 


*  Warner    v.    Winslow,    1    Sand. 
Ch.    430.      In    Dey    v.    Dunham,    2 
Johns.  Ch.  182,  189,  the  Chancellor 
says :     "The  deed  to  the  defendant 
of  the  fifty  lots  was  on  its  face  an 
absolute  deed  in  fee,  with  full  cov- 
enants,   and    it   was    acknowledged 
and  recorded  as  a  deed  on  the  day 
of   its  date.     It  is  admitted,   how- 
ever,  that  the  deed   was   taken   in 
the  first  instance  as  a  security  for 
the  payment  of  three  notes,  to  the 
amount    of    ten    thousand    dollars, 
payable    in    six   months,    and   bear- 
ing date  about  the  same  time  with 
the  deed  in  January,   1810.     After- 
ward, on  the  27th  of  July,  1810,  and 
about  the  time  that  the  notes  be- 
came due,  other  notes  were  given 
in  lieu  of  them,  and  an  agreement 
under  seal  executed  by  the  defend- 
ant, admitting  that  the  deed  of  the 
fifty  lots  was  only  held  as  a  secur- 
ity, and  that  if  the  substituted  notes 
were  paid,  the  deed  was  to  be  given 


up,  and  the  lots  reconveyed.  This 
agreement,  operating  as  a  defeas- 
ance or  explanation  of  the  design 
of  the  deed,  was  never  registered, 
yet  it  is  to  be  considered  in  connec- 
tion with  the  deed,  and  relates  back 
to  its  date,  so  as  to  render  the  deed 
from  its  commencement  what  it 
was  intended  to  be  by  the  parties, 
a  mere  mortgage,  securing  the  pay- 
ment of  the  notes.  As  a  mortgage, 
the  deed  and  the  subsequent  agree- 
ment ought  to  have  been  regis- 
tered, to  protect  the  land  against 
the  title  of  a  subsequent  bona  fide 
purchaser.  This  is  the  language 
of  the  statute  concerning  the  regis- 
try of  mortgages;  and  recording 
the  deed  as  a  deed  was  of  no  avail 
in  this  case,  for  the  plaintiff  was 
not  bound  to  search  the  record  of 
deeds,  in  order  to  be  protected 
against  the  operation  of  a  mort- 
gage." An  instrument  is  recorded 
when  filed   for  record   although  it 


1146  THE  LAW  OF  DEEDS.  [CIIAP.  XXII. 

In  Michigan  where  the  statute  provides  that  deeds  and  mort- 
gages shall  be  recorded  in  separate  books,  it  is  held  that  a 
deed  absolute  in  form,  though  intended  only  as  security  for 
a  loan  of  money  and  accompanied  by  an  unrecorded  defeas- 
ance, is  void  as  to  a  bona  Me  purchaser  if  recorded  in  the  book 
of  deeds  instead  of  mortgages.^  The  court  says :  "It  is  very 
clear  that,  if  the  statute  be  construed  literally,  the  instrument 
in  question  should  have  been  recorded  as  a  mortgage.  It  can- 
not be  questioned  that  this  deed  was,  by  the  parties  to  it,  in- 
tended as  a  security.  It  would  seem,  therefore,  that,  unless 
the  complainant's  contention  that  the  statute  should  be  con- 
strued to  mean  that  deeds,  appearing  to  the  register  of  deeds 
to  be  intended  as  security,  are  the  only  ones  included  in  this 
phrase,  the  record  was  not  made  as  the  statute  directs.  It  is 
strenuously  insisted  that  the  word  'intended'  should  be  inter- 
preted as  referring  to  something  which  is  apparent  in  the  lan- 
guage or  form  of  the  instrument,  and  not  dependent  on  the 
hidden  mental  process  going  on  in  the  mind  of  either  the 
grantor  or  the  grantee,  or  both.  The  contention  would  have 
great  force  if  the  mere  deposit  of  the  paper  for  record  con- 
stituted notice  to  subsequent  purchasers,  but  it  has  been  held 
that  the  statute  (section  8988)  above  quoted  puts  the  burden 
upon  the  person  offering  the  paper  for  record  of  seeing  to  it 
that  the  instrument  is  properly  recorded."  ^  "It  is  difficult  to 
imagine  a  case  in  which  the  grantee  in  a  deed  would  not  be 
aware  of  the  fact  that  such  deed  was  intended  as  security. 
It  is  then  within  the  power  of  the  party  offering  the  instru- 
ment for  record  to  comply  with  the  statute,  if  the  statute  be 
given  the  construction  for  which  the  defendant's  counsel  con- 
may  not  be  copied  into  the  proper  « Barnard  v.  Campau,  29  Mich 
book:  Watkins  v.  Wilhoit,  104  Cal.  162;  Gordon  v.  Constantine  Hy- 
^^^-                                                             draulic   Co.,   117   Mich.  620,  76  N. 

5  Grand  Rapids  etc.  Bank  v.  Ford,       W.  142. 
143  Mich.  402,   107  N.  W.  76,  114 
Am.  St.  Rep.  668. 


CHAP.    XXII.]  REGISTRATION   OF   DEEDS.  1147 

tend."  In  a  great  many  other  states,  however,  the  rule  is 
that  a  deed  absolute  in  terms,  if  recorded  in  a  book  of  deeds, 
will  impart  notice  even  though  it  is  intended  as  a  mortgage. 
The  reason  is  that  a  person  desirous  of  ascertaining  whether 
title  to  real  property  was  affected  or  not,  would  not  confine 
his  search  to  a  book  of  mortgages  alone.'  It  is  held  in  Nevada 
that  the  statute  of  that  State  concerning  conveyances  has  no 
provisions  similar  to  those  of  the  statutes  of  New  York,  un- 
der which  it  is  held  in  the  latter  State,  that  the  record  of  a 
deed  absolute  upon  its  face,  but  intended  as  a  mortgage,  gives 
no  notice  to  subsequent  purchasers.  In  Nevada,  subsequent 
purchasers  and  encumbrancers  are  deemed  to  have  construct- 
ive notice  under  the  statute  of  every  conveyance  affecting 
real  estate,  properly  recorded.'  In  Ohio,  the  statute  requir- 
ino-  mortgages  to  be  recorded  in  a  set  of  books  denominated 
"record  of  mortgages,"  is  considered  to  be  merely  directory  to 
the  recorder.  It  was  therefore  held  that  a  mortgage  deed  de- 
livered to  the  officer  for  registration,  and  recorded  in  a  record- 
book  called  the  "record  of  deeds,"  and  indexed  in  both  the  in- 
dex to  the  volume  and  the  general  index  with  the  letters  "mtg." 
annexed,  is  operative  as  a  mortgage  against  a  subsequent  pur- 
chaser for  value,  although  he  had  no  actual  notice  of  such 

7Hazeltine  v.  Espey,  13  Ore.  301,  Mass.  456;  Mobile  Bank  v.  Tish- 
10  Pac.  423;  Kennard  v.  Mabry,  78  omingo  etc.  Inst.,  62  Miss.  250. 
Tex.  151,  14  S.  W.  272.  To  the  » Grellett  v.  Heilshorn,  4  Nev. 
same  effect:  see  Equitable  Bldg.,  526.  To  operate  as  construclive  no- 
etc.  Ass'n.  v.  King,  48  Fla.  252,  37  tice,  it  has  been  held,  the  instru- 
So.  181 ;  Merchants  State  Bank  v.  ment  must  be  recorded  in  the  prop- 
Tufts,  14  N.  D.  238,  103  N.  W.  er  book:  Deane  v.  Hutchinson,  40 
760;  Marston  v.  Williams,  45  Minn.  N.  J.  Eq.  83;  Parsons  v.  Lent,  34 
116,  47  N.  W.  644.  See,  also,  N.  J.  Eq.  67;  Shaw  v.  Wilshire, 
Gumps  V.  Kiyo,  104  Wis.  656,  80  65  Me.  485.  But  where  a  deed  is 
N.  W.  937;  Security  etc.  Co.  v.  considered  recorded  as  soon  as 
Loewenberg,  38  Ore.  159,  62  Pac.  filed,  see  Swenson  v.  Bank,  9  Lea, 
647;  De  Wolf  v.  Strader,  26  111.  723;  Cluder  v.  Thomas,  89  Pa.  St. 
225;  Christie  v.  Hale,  46  111.  117;  343. 
Harrison   v.    Phillips   Academy,    12 


1148 


THE  LAW  OF  DEEDS. 


[chap.  XXII. 


mortgage.'  Where  the  statute  does  not  require  that  mort- 
o-ao-es  shall  be  recorded  in  special  books  kept  for  that  purpose, 
the  rule  quite  generally  prevails  that  a  mortgage  need  not  be 
recorded  in  a  book  of  mortgages.  Thus  in  a  case  recently  de- 
cided by  the  Supreme  Court  of  Florida  the  recording  of  a 
mortgage  in  a  book  of  miscellaneous  records  was  held  suffi- 
cient.^ The  record,  however,  is  protection  as  to  bo)ia  fide  pur- 
chasers or  encumbrancers  of  a  mortgagee,  in  whose  favor  an 
absolute  deed,  intended  as  a  mortgage,  has  been  recorded.*^ 


9  Smith  Executor  v.  Smith,  13 
Ohio  St.  532.  See,  also,  Salter  v. 
Baker,  54  Cal.  140;  Huffman  v. 
Blum,  64  Tex.  334 ;  Sleffian  v.  Bank, 
69  Tex.  513;  Cook  v.  Parham,  63 
Ala.  456;  Fargason  v.  Edrington, 
49  Ark.  207;  Chapman  v.  Miller, 
130  Mass.  289;  Brophy  v.  Brophy, 
15  Nev.  101.  Although  the  re- 
quirement of  the  statute,  that  a 
deed  intended  as  a  mortgage  shall 
be  recorded  as  a  mortgage,  is  not 
complied  with,  it  is  valid  between 
the  parties :  James  v.  Morey,  2 
Cowen,  246,  14  Am.  Dec.  475.  The 
record  becomes  operative  if,  how- 
ever, the  mortgagee  subsequently 
purchases  the  equity  of  redemption, 
or  obtains  it  by  any  other  means  : 
Warner  v.  Winslow,  1  Sand.  Ch. 
430.  A  miscellaneous  record-book 
used  by  the  officer  for  the  regis- 
tration of  exceptional  instruments 
and  properly  indexed,  is  a  proper 
record-book,  and  constructive  no- 
tice is  given  to  third  persons  by 
the  record  in  it  of  a  deed  of  stand- 
ing timber:  Mee  v.  Benedict,  98 
Mich.  260,  22  L.R.A.  641,  39  Am. 
St.  Rep.  543. 

Uvey  V.  Dawley,  50  Fla.  537,  7 


A.  &  E.  Ann.  Cas.  354.  In  this 
case  the  court  says :  "In  Switzer  v. 
Knapps,  10  Iowa,  72,  it  was  held 
that  the  'record  of  a  quitclaim  deed 
is  sufficient  and  operates  as  notice 
when  such  deed  is  recorded  in  the 
book  of  mortgages,  the  evidence 
not  showing  whether  that  book  was 
used  for  recording  purposes  only, 
or  whether  it  was  used  to  record 
both  absolute  deeds  and  mortgages, 
and  the  statute  not  requiring  sep- 
arate books  for  these  different  in- 
struments.' In  Farabee  v.  Mc- 
Kerrihan,  172  Pa.  St.  234,  33  Atl. 
583,  51  Am.  St.  Rep.  734,  it  was 
held  that  instruments  in  writing 
not  required  by  law  to  be  recorded 
in  a  particular  book  may  be  re- 
corded in  any  book  kept  by  the  re- 
corder.' In  the  case  last  cited  a 
mortgage  was  recorded  in  a  deed 
book."  See,  also,  Paige  v.  Wheel- 
er, 92  Pa.  St.  282;  Farabee  v.  Mc- 
Kerrihan,  172  Pa.  St.  234,  33  A. 
583,  51  Am.  St.  Rep.  734;  Switzer 
V.    Knapps,    10   la.    72. 

2  Long  V.  Fields,  31  Tex.  Civ. 
App.  241,  71  S.  W.  774;  Bailey  v. 
Myrick,  50  Me.  171;  Cogan  v. 
Cook,  22  Minn.   137. 


CHAP.   XXII.]  REGISTRATION  OF  DEEDS.  1149 

§  631.  A  mortgagee  is  considered  a  purchaser. — A 
mortgagee  ^  or  a  trustee  in  a  deed  of  trust  *  is  a  purchaser,  as 
the  term  is  used  in  the  recording  acts.  Two  persons  purchased 
for  their  joint  benefit  a  quantity  of  land,  contributing  equal 
parts  of  the  purchase  money.  They  mutually  agreed  that  con- 
veyances of  the  property  should  be  executed  to  one  of  them, 
who  subsequently,  with  the  knowledge  and  consent  of  the 
other,  obtained  from  a  bank  a  number  of  loans.  The  money 
thus  obtained  was  expended  in  improving  the  property.  These 
loans  were  secured  by  trust  deeds  executed  by  the  party  who 
had  the  legal  title,  and  he  afterward  secured  a  sum  of  money 
from  another  bank,  giving  a  mortgage  therefor.  The  other 
partner  in  the  joint  purchase  never  exercised  any  authority  or 
control  over  the  property,  and  his  rights  were  not  evidenced  by 
any  writing.  He  brought  an  action  to  obtain  a  sale  of  the 
property,  and  to  have  the  proceeds  distributed  among  the  par- 
ties entitled.  It  appeared  that  his  partner,  whom  he  made 
one  of  the  defendants,  paid  the  taxes  on  the  property,  it  being 
assessed  to  him,  and  from  the  time  of  the  original  conveyance, 
until  after  the  commencement  of  the  action,  always  dealt  with 
the  property  as  though  he  were  the  sole  owner.  The  bank 
mortgagee  had  no  notice  of  any  interest  in  plaintiff,  and  made 
the  loan  to  his  partner  upon  the  faith  of  the  latter's  apparent 
title  by  deed,  under  the  impression  that  the  property  was  solely 
his.  The  court  held  that  the  claims  of  the  plaintiff  should  be 
postponed  to  those  of  the  mortgagee  bank.^ 

8  Moore      v.      Walker,      3      Lea  Co.   v.    Montgomery,  95   U.    S.    16, 

(Tenn.),  656;  Whelan  v.  McCreary,  24  L.  ed.  346. 

64   Ala.   319;    Haynsworth   v.    Bis-  » Salter    v.    Baker,    54    Cal.    140. 

choff,  6  S.  C.   159 ;  Jordan  v.  Mc-  Said     the     court,     per     Ross,     J. : 

Neil,  25  Kan.  459;  Patton  v.  Eber-  "There  can  be   no   doubt   that   the 

hart,  52  Iowa,  67;  Chapman  v.  Mil-  equities    of    the   bank   are    superior 

ler,  130  Mass.  289;  Bass  v.  Whee-  to  those  of  the  planitiff,  who  vol- 

less.    2    Tenn.    Ch.    531 ;    Weinberg  untarily  permitted   the  title   to  the 

V.  Rempe,  15  W.  Va.  829.  property  to  be  placed  in  the  name 

*  Kesner  v.  Trigg,  98  U.  S.  50,  25  of  Baker,  and  for  a  long  series  of 

L.  ed.  83;  New  Orleans  Canal  etc  years  allowed  him  to  appear  as  its 


1150 


THE  LAW  OF  DEEDS. 


[chap.  XXII. 


§  632.  Pre-existing  debt.— But  a  mortgage  to  secure 
^  pre-existing  debt  is  not  generally  considered  as  a  purchase 
for  a  valuable  consideration.  Such  a  mortgagee,  where  this 
is  held  to  be  the  law,  is  not  entitled  to  protection  against  prior 
equities,  although  when  he  took  his  mortgage  he  had  no  notice 
of  them.®     "Although  the  plaintiff  was  a  purchaser  without 


absolute  legal  and  equitable  owner, 
and  in  all  respects  to  deal  with  it 
as  his  own.  The  bank,  ignorant 
of  any  interest  in  plaintiff,  and  rely- 
ing upon  the  apparent  ownership  of 
Baker,  loaned  him  its  money,  and 
should,  in  good  conscience,  be  pro- 
tected against  the  now  asserted 
claim  of  plaintiff:  Rice  v.  Rice,  2 
Drew,  73;  Richard  v.  Sears,  6  Ad. 
&  K  469;  McNeil  v.  Tenth  Nat. 
Bank,  46  N.  Y.  325,  7  Am.  Rep. 
341;  Code  Civil  Procedure,  § 
3543."  See,  also.  Singer  Mfg.  Co. 
V.  Chalmers,  2  Utah,  542;  Porter 
V.  Green,  4  Iowa,  571;  Seevers  v. 
Delashmutt,  11  Iowa,  174,  11  Am. 
Dec.  139. 

« Withers  v.  Little,  56  Cal.  370; 
De  Lancey  v.  Stearns,  66  N.  Y. 
157;  Westervelt  v.  Hoff,  2  Sandf. 
Ch.  98;  Union  Dime  Savings  Inst. 
V.  Duryea,  67  N.  Y.  84;  Manhat- 
tan Co.  V.  Evertson,  6  Paige,  457; 
Dickerson  v.  Tillinghast,  4  Paige, 
215,  25  Am.  Dec.  528;  Padgett  v. 
Lawrence,  10  Paige,  170,  40  Am. 
Dec.  232;  Van  Heusen  v.  Radcliff, 
17  N.  Y.  580,  72  Am.  Dec.  480; 
Cary  v.  White,  7  Lans.  1,  s.  c.  52 
N.  Y.  138;  Coddington  v.  Bay,  20 
Johns.  637,  11  Am.  Dec.  342;  Stalk- 
er V.  McDonald,  6  Hill,  93,  40  Am. 
Dec.  389;  Hinds  v.  Pugh,  48  Miss. 
268;  Bartlett  v.  Varner,  56  Ala. 
580;  Pancoast  v.  Duval,  28  N.  J. 
Eq.  445;  Morse  v.  Godfrey,  3  Story, 


364;  Mingus  v.  Condit,  23  N.  J. 
Eq.  313;  Spurlock  v.  Sullivan,  36 
Tex.  511;  Wilson  v.  Knight,  59 
Ala.  172;  Gafford  v.  Stearns,  51 
Ala.  434;  Short  v.  Battle,  52  Ala. 
456;  Pickett  v.  Barron,  29  Barb. 
505;  Thurman  v,  Stoddart,  63  Ala. 
336;  Coleman  v.  Smith,  55  Ala. 
368;  Cook  v.  Parham,  63  Ala.  456; 
Alexander  v.  Caldwell,  55  Ala.  517; 
Schumpert  v.  Dillard,  55  Miss.  348; 
Perkins  v.  Swank,  43  Miss.  349, 
360;  Lawrence  v.  Clark,  36  N.  Y. 
128;  Webster  v.  Van  Steenbergh, 
46  Barb.  211;  Clarke  v.  Barnes,  72 
Iowa,  563;  McKamey  v.  Thorpe, 
61  Tex.  653 ;  Funk  v.  Paul,  64  Wis. 
35,  54  Am.  Rep.  576;  Sweeney  v. 
Bixler,  69  Ala.  539;  People's  Sav. 
Bank  v.  Bates,  120  U.  S.  556.  See, 
also,  Boxheimer  v.  Gunn,  24  Mich. 
372;  Edwards  v.  McKernan,  55 
Mich.  520;  Ashton's  Appeal,  11  Pa. 
St.  153;  Jones  v.  Robinson,  11  Ala. 
499;  Craft  v.  Russell,  67  Ala.  9; 
Banks  V.  Long,  79  Ala.  319;  Saf- 
fold  V.  Wade,  51  Ala.  214;  Sum- 
mers V.  Brice,  36  S.  C.  204;  Mc- 
Leod  V.  First  Nat.  Bank,  42  Miss. 
99 ;  Johnson  v.  Graves,  27  Ark.  557 ; 
Golson  V.  Fielder,  2  Tex.  Civ.  App. 
400;  Overstreet  v.  Manning,  67 
Tex.  657 ;  Ayres  v.  Duprey,  27  Tex. 
593,  86  Am.  Dec.  657;  Chance  v. 
McWhorter,  26  Ga.  315;  Phelps  v. 
Fockler,  61  Iowa,  340;  Koon  v. 
Tramel,  71  Iowa,  132.    But  a  mort- 


CHAP.   XXII.] 


REGISTRATION   OF  DEEDS. 


1151 


notice,  he  was  not  a  purchaser  for  value,  and  his  conscience 
was  as  much  bound  by  the  prior  equity  of  the  defendant  Jacks, 
as  were  the  consciences  of  his  mortgagors.  In  fact  he  occu- 
pied no  better  position  than  his  mortgagors."  "^  But  this  rule 
is  not  universally  accepted,  and  in  some  cases  it  is  held  that 
a  mortgagee  who  in  good  faith  takes  a  mortgage  to  secure  a 
pre-existing  debt,  is  entitled  to  be  regarded  as  a  purchaser  for 
a  valuable  consideration,  and  to  receive  all  the  protection  that 
results  from  this  relation.  But  this  latter  view  is  not  sus- 
tained by  the  weight  of  authority.  A  mortgagee  wdio  has  not 
parted  with  value  is  considered  to  be  in  no  worse  position  than 
he  was  before,  and  to  be  bound  by  the  same  equities  that  bound 
his  mortgagor.' 


gage  of  this  kind  is  valid  between 
the  parties :     Turner  v.   McFee,  61 
Ala.  468;  Steiner  v.  McCall,  61  Ala. 
413;  Brooks  v.  Owen,  112  Mo.  251 
Smith  V.  Wooman,  19  Ohio  St.  145 
Paine    v.     Benton,    32    Wis.    491 
Kranert    v.     Simon,     65     111.     344 
Machette  v.  Wanless,  1  Colo.  225. 

7  Withers  v.  Little,  56  Cal.  370, 
373. 

8  Babcock  v.  Jordan,  24  Ind.  14. 
Elliott,  C.  J.,  said  in  this  case: 
"The  question  raised  by  the  reply 
is  this,  viz :  Is  the  mortgagee  of 
a  mortgage  taken  in  good  faith  to 
secure  a  pre-existing  debt  regard- 
ed as  a  purchaser  for  a  valuable 
consideration,  and  protected  as 
such?  The  replication  under  con- 
sideration assumes  the  negative; 
but  the  same  question  has  been 
ruled  affirmatively  by  this  court, 
in  the  case  of  Work  v.  Brayton,  5 
Ind.  396.  Perkins,  J.,  in  deliver- 
ing the  opinion  of  the  court  in 
that  case,  says :  'The  question 
whether  a  mortgagee,  in  a  mort- 
gage  given    for   the    security    of   a 


pre-existing  debt,  is  to  be  regarded 
as  a  purchaser  for  a  valuable  con- 
sideration has  been  decided  dififer- 
ently  by  different  courts;  and  there 
has  been  a  like  diversity  of  opinion 
upon  the  analogous  question, 
whether  the  holder  of  commercial 
paper  assigned  as  collateral  secur- 
ity for  a  pre-existing  debt  is  to  be 
treated  as  a  holder  for  a  valuable 
consideration.  The  latter  of  these 
questions  this  court  decided  in  the 
affirmative  in  Valette  v.  Mason,  1 
Ind.  288;  and  it  would  seem  that 
the  principle  of  that  case,  applied 
to  a  mortgage  of  real  estate  to 
secure  a  like  indebtedness,  would 
require  that  to  be  regarded  as  a 
purchaser  for  a  valuable  considera- 
tion. .  .  .  If  it  is  not  to  be  so 
regarded,  the  titles  of  purchasers 
and  mortgagees  for  such  a  consid- 
eration must  be  of  comparatively 
little  value,  as  they  may,  at  any 
time,  be  unexpectedly  overrode  by 
secret  invisible  liens  for  unpaid 
purchase  money  to  some  former 
grantors,  or  by  some  other,  till  then 


1152 


THE  LAW  OF  DEEDS. 


[chap.  XXII. 


§  633,  Assignee  of  a  mortgage  is  considered  a  pur- 
chaser.— A  person  who  purchases  a  mortgage  is  consid- 
ered as  coming  within  the  operation  of  the  registry  acts,  and 
is  entitled  to  fuU  protection  as  a  bona  fide  purchaser.  The 
fact  that  his  assignor  had  notice  of  prior  encumbrances  upon 
the  property  described  in  the  mortgage,  does  not  affect  him 
if  he  purchases  in  good  faith  and  for  a  valuable  consideration, 
and  has  his  assignment  recorded  before  the  registration  of 
the  prior  deed  or  encumbrance.^  The  assignee  of  a  mortgage 
is  entitled  to  the  same  consideration  and  as  ample  protection 
under  the  registry  acts  as  a  person  who  buys  the  equity  of  re- 
demption.^ If  there  is  a  prior  outstanding  mortgage  at  the 
time  the  assignment  is  made,  of  which  the  assignor  had  notice, 
and  it  is  recorded  before  the  assignment,  it  will  take  preced- 
ence over  the  latter.  This  would  also  be  the  case  if  the  prior 
mortgage  was  recorded  before  the  assignment  was  made  but 


unknown,  alleged  equitable  claims, 
which  might,  in  their  origin,  have 
been  without  trouble  made  secure 
by  open  recorded  instruments  that 
would  have  been  notice  to  all  the 
world.  ...  A  pre-existing  debt 
is  held  to  be  a  valuable  considera- 
tion by  Story  in  the  second  vol- 
ume of  his  Equity  Jurisprudence, 
pp.  657,  658,  and  he  cites  for  the 
doctrine  Metford  v.  Metford,  9 
Ves.  100,  and  Bayley  v.  Greenleaf, 
7  Wheat.  46.  In  vol.  2,  pt.  1,  p. 
73,  of  White  and  Tudor's  Leading 
Cases  in  Equity,  they  say:  'Simi- 
lar decisions  were  made  in  Riche- 
son  v.  Richeson,  2  Gratt.  497,  and 
in  Dey  v.  Dunham,  2  Johns.  Ch. 
182;  though  this  latter  case  has 
not  been  followed  in  New  York, 
Kent,  in  the  fourth  volume  of  his 
Commentaries,  p.  154,  approves  the 
doctrine,    and    expresses    the    con- 


viction that  it  rests  on  grounds  that 
will   command   general    assent.'  " 

9  Decker  v.  Boice,  83  N.  Y.  215. 

1  Westbrook  v.  Gleason,  79  N.  Y. 
23;  Smyth  v.  Knickerbocker  L.  Ins. 
Co.,  84  N.  Y.  589;  James  v.  John- 
son, 6  Johns.  Ch.  417;  Campbell  v. 
Vedder,  1  Abb.  App.  Dec.  295; 
Vanderkemp  v.  Shelton,  11  Paige, 
28;  Belden  v.  Meeker,  47  N.  Y. 
307;  Purdy  v.  Huntington,  46  Barb. 
389,  42  N.  Y.  334,  1  Am.  Rep.  552 ; 
Smith  v.  Huntington,  46  Barb.  389, 
42  N.  Y.  334,  1  Am.  Rep.  552; 
Smith  V.  Keohane,  6  Bradw.  585; 
Turpin  v.  Ogle,  4  Bradw.  611;  Mc- 
Clure  V.  Burris,  16  Iowa,  591 ; 
Bowling  V.  Cook,  39  Iowa,  200; 
Cornog  V.  Fuller,  30  Iowa,  212; 
Bank  v.  Anderson,  14  Iowa,  544, 
83  Am.  Dec.  390;  Tradesmen's 
Building  Assn.  v.  Thompson,  31  N. 
J.  Eq.  536;  Stein  v.  Sullivan,  31 
N.  J.  Eq.  409. 


CHAP.   XXII.]  REGISTRATION   OF  DEEDS.  1153 

after  the  registration  of  the  assigned  mortgage.*  While  an 
assignee  of  a  mortgage  is  not  chargeable  with  notice  pos- 
sessed by  his  assignor,  he  is  bound  by  the  constructive  notice 
of  the  record  and  by  the  notice  supplied  by  the  possession  and 
occupation  of  another  of  the  premises  embraced  in  the  mort- 
gage.' In  case  two  assignments  of  the  same  mortgage  are 
made,  the  general  rule  applies,  and  priority  is  given  to  the  one 
who  first  records  his  assignment.  In  case  he  paid  only  a  part 
of  the  consideration,  he  is  entitled  to  precedence  only  to  such 
part.*  But  generally  the  mortgagee  would  transfer  the  note 
to  the  assignee,  and  its  absence  would  be  a  fact  sufficient  to 
put  the  second  purchaser  upon  inquiry.* 

§  634.  Judgment  creditors. — By  the  rules  of  the  com- 
mon law,  a  judgment  creditor  was  not  regarded  as  a  purchaser 
within  the  recording  lav/s.°  Unless  this  construction  has  been 
changed  by  statute,  the  same  rule  would  obtain.''  An  attach- 
ment lien  stands  upon  the  same  ground,  so  far  as  this  question 
is  concerned,  as  a  judgment  lien.'     And  generally  a  judgment 

2  Fort  V.  Burch,  5  Denio,  187;  ing  title  to  real  estate.  In  case 
De  Lancey  v.  Stearns,  66  N.  Y.  157.  such   a    release   is   not   recorded,    a 

3  Bush  V.  Lathrop,  22  N.  Y.  535 ;  subsequent  assignee  of  the  niort- 
Jackson  v.  Van  Valkenburgh,  8  gage,  for  a  valuable  consideration 
Cowen,  260;  Jackson  v.  Given,  8  and  without  notice,  is  not  affected 
Johns.  137,  5  Am.  Dec.  328;  Trus-  by  it:  Mutual  Life  Ins.  Co.  v.  Wil- 
tees  of  Union  College  v.  Wheeler,  cox,  55  How.  Pr.  43.  The  same 
59  Barb.  585.  rule  manifestly  applies  in  the  case 

*  Wiley    V.    Williamson,    68    Me.  of  an  unrecorded  agfement  to  re- 

71;  Pickett  v.  Barron,  29  Barb.  505;  lease  the  mortgaged  premies,  or  a 

Potter   v.    Strausky,   48   Wis.   235;  part  of  them:    St.  John  v.  Spauld- 

Jurdy  V.  Huntington,  46  Barb.  389.  ing,  1  Thomp.  &  C.  483. 

6  Kellogg  v.  Smith,  26  N.  Y.  18.  « Brace    v.     Marlborough,    2     P. 

See  Brown  v.  Blydenburgh,  7  N.  Y.  Wms.  491 ;  Finch  v.  Winchester,  1 

141,  57  Am.  Dec.  506.     If  a  part  of  P.  Wms.  277. 

the  mortgaged  property  is  released  '  Rodgers    v.    Gibson,    4    Yeates, 

from    the    operation    of    the    mort-  HI;    Heistner  v.   Fortner,  2   Binn. 

gage,  the  release,  to  have  full  ef-  40,  4  Am.  Dec.  417;  Cover  v.  Black, 

feet,     should'    be     recorded.     It     is  1  Pa.  St.  493. 

considered  as  a  conveyance  affect-  ^  Plant  v.   Smythe,   45    Cal.    161 ; 
Deeds,  Vol.  XL— 73 


1154 


THE  LAW  OF  DEEDS. 


[chap.  XXIL 


or  attaching  creditor  is  not  entitled  to  protection  against  an 
unrecorded  deed.^  Where  a  judgment  creditor  is  not  consid- 
ered a  purchaser,  an  unrecorded  mortgage  which  is  valid  ex- 


Le  Clert  v.  Callahan,  52  Cal.  252; 
Hackett  v.  Callender,  32  Vt.  97; 
Hoag  V.  Howard,  55  Cal.  564;  Hart 
V.  Farmers'  &  Mechanics'  Bank,  33 
Vt.  252. 

9  Bell  V.  Evans,  10  Iowa,  353 ; 
Sappington  v.  Oeschli,  49  Mo.  244; 
Kelly  V.  Mills,  41  Miss.  267;  Boze 
V.  Arper,  6  Minn.  220;  Greenleaf  v. 
Edes,  2  Minn.  264;  Evans  v.  Mc- 
Glasson,  18  Iowa,  150;  Harrall  v. 
Gray,  10  Neb.  186 ;  Thomas  v.  Kel- 
sey,  30  Barb.  268 ;  Schmidt  v.  Hoyt, 
1  Edw.  652;  Buchan  v.  Summer,  2 
Barb.  Ch.  165,  47  Am.  Dec.  305; 
Wilder  v.  Butterfield,  50  How.  Pr. 
385;  Stevens  v.  Watson,  4  Abb. 
App.  302;  Jackson  v.  Dubois,  4 
Johns.  216;  Floyd  v.  Harding,  28 
Gratt.  401 ;  Cowardin  v.  Anderson, 
78  Va.  88;  Hoag  v.  Howard,  55 
Cal.  564;  Galland  v.  Jackman,  26 
Cal.  79,  85  Am.  Dec.  172;  Wil- 
coxson  v.  Miller,  49  Cal.  193;  Pix- 
ley  V.  Huggins,  15  Cal.  127;  Hoag 
v.  Howard,  55  Cal.  564;  Plant  v. 
Smythe,  45  Cal.  161 ;  Packard  v. 
Johnson,  51  Cal.  545;  Hunter  v. 
Watson,  12  Cal.  363,  73  Am.  Dec. 
543;  Mansfield  v.  Gregory,  11  Neb. 
297;  Courtnay  v.  Parker,  21  Neb. 
582;  Hubbard  v.  Walker,  19  Neb. 
94;  Dewey  v.  Walton,  31  Neb.  819; 
Galway  v.  Malchow,  7  Neb.  285; 
Hart  V.  Farmers  and  Mechanics' 
Bank,  33  Vt.  252;  Haekett  v.  Cal- 
lender, 32  Vt.  97;  Fox  v.  Hall,  74 
Mo.  315,  41  Am.  Rep.  316;  Still  well 
V.  McDonald,  39  Mo.  282;  Draper 
V.  Bryson,  26  Mo.  108,  69  Am.  Dec. 
483;   Black   v.  Long,  60   Mo.   181; 


Potter   V.    McDowell,   43    Mo.   93 
Masterson   v.   Little,  75  Tex.   682 
Holden    v.    Garrett,    23    Kan.    98 
Plumb  V.  Bay,  18  Kan.  415;  North- 
western Forwarding  Co.  v.  Mahaf- 
fey,   36  Kan.    152;    Foltz   v.  Wert, 
103  Ind.  404;  Wright  v.  Jones,  105 
Ind.  17;  Shirk  v.  Thomas,  121  Ind. 
147,   16  Am.  St.  Rep.  381;  Heberd 
V.    Wines,    105   Ind.   237;   Boyd   v. 
Anderson,    102   Ind.   217;   Hays   v. 
Reyer,  102  Ind.  524;   Orth  v.  Jen- 
nings   8    Blackf.    420;    Shryock   v. 
Waggoner,  28  Pa.  St.  430 ;  Cover  v. 
Black,  1  Pa.  St.  493 ;  Knell  v.  Green 
St.  Building  Assn.,  34  Md.  67 ;  Hoy 
V.  Allen,  27  Iowa,  208;  Patterson  v. 
Lindner,    14    Iowa,   414;    Phelps    v. 
Fockler,  61    Iowa,   340;   Welton  v. 
Tizzard,   15  Iowa,  495;   First  Nat. 
Bank    v.    Hayzlett,    40   Iowa,    659; 
Norton  v.  Williams,  9  Iowa,  528; 
Duncan    v.    Miller,    64   Iowa,    223; 
Churchill  v.  Mprse,  23  Iowa,  229,  99 
Am.   Dec.  422;    Sigworth  v.   Meri- 
am,    66    Iowa,    477;     Withnell    v. 
Courtland   Wago    County,   25   Fed. 
Rep.  372;  Vaughn  v.  Schmalsle,  10 
Mont.  186,  10  L.R.A.  411;  McAdow 
v.    Black,   4    Mont.   475;    Kelly   v. 
Mills,  41  Miss.  267 ;  Welles  v.  Bald- 
win, 28  Minn.  408;  Dutton  v.  Mc- 
Reynolds,  31   Minn,  66;  Forepaugh 
v.  Appold,  17  B.  Mon.  625 ;  Rightcr 
V.  Forrester,  11  Bush,  278;  Morton 
v.  Robards,  4  Dana,  258;  Pearson  v. 
Davis,  41  Neb.  608,  59  N.  W.  Rep. 
885.     In  Sappington  v.  Oeschli,  su- 
pra,  the   court   said :      "Ever   since 
the  decision  in  the  case  of  Davis  v. 
Ownsby,  14  Mo.  170,  55  Am.  Dec 


CHAP.   XXII.]  REGISTRATION   OF  DEEDS.  1155 

cept  as  against  bona  Me  purchasers  and  mortgagees  for  value 
and  without  notice,  it  has  been  decided  a  number  of  times,  has 
preference  over  a  judgment  lien.^  Speaking  of  the  effect  of 
a  judgment  Hen  upon  the  real  estate  of  a  debtor,  Chief  Jus- 
tice Wright  of  Iowa  observed:  "It  is  the  property  of  the 
debtor,  which  is  bound  by  the  attachment  from  the  time  of 
service,  and  not  the  property  of  another.  So,  also,  the  judg- 
ment is  a  lien  upon  the  real  estate  owned  by  the  defendant  at 
the  time  of  its  rendition,  and  not  upon  that  owned  by  another. 
It  is  true  that  the  phrase  'real  estate'  includes  lands,  tenements, 
and  hereditaments  and  all  rights  thereto  and  interests  therein, 
equitable  as  well  as  legal,  but  the  judgment  lien  only  extends 
to  the  interest  owned  by  the  defendant.  If  he  has  no  interest, 
legal  or  equitable,  there  is  nothing  upon  which  the  judgment 
can  rest;  nothing  to  which  the  lien  can  attach.  Again,  while 
principles  of  public  policy  have  dictated  the  equitable  rule, 
that  relief  should  not  generally  be  granted  against  a  bona  fide 

105,  it  has  been  the  settled  law  of  521,  50  S.  E.  379;  Yarnell  v.  Brown, 
this  State,  that  the  title  of  a  bona  170  111.  362,  48  N.  E.  909,  62  Am. 
fide  purchaser  or  mortgagee  under  St.  Rep.  380;  Clark  v.  Glos,  180  111. 
a  deed  or  mortgage  not  recorded,  is  556,  54  N.  E.  631,  72  Am.  St.  Rep. 
good  against  creditors  at  large,  and  223;  Glen  v.  Morris-Glyndon,  100 
is  also  good  against  sales  under  Md.  479,  60  Atl.  608;  Roberts  v. 
judgments,  and  executions,  if  the  Robinson,  49  Neb.  717,  68  N.  W. 
deed  or  mortgage  is  duly  recorded  1035,  59  Am,  St.  Rep.  567;  Dim- 
before  such  sales.  This  has  been  mick  v.  Rosenfeld,  34  Ore.  101,  55 
the  uniform  ruling  of  this  court  Pac.  100;  Smith  v.  Gott,  51  W.  Va. 
since  the  decision  referred  to:  See  141,  41  S.  E.  175;  Woodhurst  v. 
Valentine  v.  Havener,  20  Mo.  133;  Cramer,  29  Wash.  40,  69  Pac.  501. 
Stilwell  V.  McDonald,  39  Mo.  282;  ^  Hoy  v.  Allen,  27  Iowa,  208;  Pix- 
Porter  v.  McDowell,  43  Mo.  93;  ley  v.  Huggins,  15  Cal.  127;  Burgh 
Reed  V.  Ownby,  44  Mo.  204";  Mc-  v.  Francis,  1  Eq.  Cas.  Abr.  320,  pt. 
Calla  V.  Knight  Investment  Co.,  77  1;  Patterson  v.  Linder,  14  Iowa, 
Kan.  770,  14  L.R.A.(N.S.)  1258,  94  414;  Welton  v.  Tizzard,  15  Iowa, 
Pac.  126;  INIahoney  v.  Salsbury,  83  495;  Jackson  v.  Dubois,  4  Johns. 
Neb.  488,  119  N.  W.  144,  131  Am.  216;  Holden  v.  Garrett,  23  Kan. 
St.  Rep.  647.  A  judgment  creditor  98;  Righter  v.  Forrester,  1  Bush, 
is  not  a  bona  Mc  purchaser :  Owens  278;  Orth  v.  Jennings,  8  Blackf.  420. 
T.  Atlanta  Trust  etc.   Co.,   122  Ga. 


1156  THE  LAW  OF  DEEDS.  [CHAP.  XXII. 

purchaser  without  notice,  yet  the  rule  has  no  place  in  favor  of 
a  judgment  creditor,  though  he  may  have  no  notice  of  the  out- 
standing equity.  And  the  reason  of  this  exception  seems  to  us 
very  cogent  and  satisfactory.  The  ordinary  purchaser  pays  a 
new  consideration.  Not  so  with  the  judgment  creditor.  Such 
creditor  comes  in  wider  the  debtor,  and  not,  as  does  the  pur- 
chaser, through  him.  The  consequences  is  that  the  creditor  is 
entitled  to  the  same  rights  as  the  debtor  had,  and  no  more. 
By  his  purchase  he  stands  in  the  place  of  the  debtor.  And  the 
same  rule  applies  to  a  third  person  purchasing  at  the  sheriff's 
sale,  with  notice  of  the  outstanding  title."  ^  In  a  later  case 
in  the  same  State,  Day,  J.,  said:  'It  is  now  the  settled  law  of 
this  State  that  an  attachment  or  judgment  lien  does  not  take 
precedence  over  a  prior  unrecorded  deed  or  mortgage  of  which 
the  creditor  had  no  notice."  ^  Where  a  deed  is  executed  before 
the  rendition  of  a  judgment  against  the  grantor,  but  not  re- 
corded, it  is  good  as  against  a  sheriff's  sale  made  on  the  judg- 
ment, if  it  is  placed  on  record  before  the  sheriff's  deed.* 

§  635.  In  some  States  judgment  creditor  is  considered 
within  the  registry  acts. — In  other  States  of  the  Union,  a 
judgment  lien  has  priority  over  an  unrecorded  deed  or  mort- 
gage, of  which  the  judgment  creditor  had  no  notice  at  the 
time  his  lien  attached.^     In  Alabama,  the  court,  speaking  of 

2  In  Norton  v.  Williams,  9  Iowa,  *Wilcoxson  v.  Miller,  49  Cal. 
528,  531.  See,  also,  Schmidt  v.  193;  Schoeder  v.  Gurney,  73  N.  Y. 
Hoj^t,  1  Edw.  Ch.  652;  First  Nat.  430;  Apperson  v.  Burgett,  33  Ark. 
Bank  of  Tama  City  v,  Hayzlett,  40  328.  But  see  Simpkinson  v.  Mc- 
lowa,  659;   Churchill  v.   Morse,  23  Gee,  4  Lea  (Tenn.),  432. 

Iowa,  229,  92  Am.  Dec.  422;  Evans  6  Hill  v.  Paul,  8  Miss.  479;  Gui- 

V.  McGlasson,  18  Iowa,  150;  Mor-  teau  v.  Wisely,  47  111.  433;  Pollard 

ton  V.  Robards,  4  Dana,  258;  Burn  v.  Cocke,  19  Ala.  188;  Humphreys 

V.     Burn,    3    Ves.    582;    Hayes    v.  v.   Merrill,  52  Miss.  92;   McCoy  v. 

Thode,  18  Iowa,  51;  Hoy  v.  Allen,  Rhodes,  11  How.   131;  Vreeland  v. 

27  Iowa,  208.     And  see  McKee  v.  Claflin,  24  N.  J.  Eq.  113;  Reichert 

Sultenfuss,  61  Tex.  325.  v.  McClure,  23  111.  516;  McFadden 

3  In  First  Nat.  Bank  etc.  v.  Hayz-  v.  Worthingfon,  45  111.  362;  Massey 
lett,  40  Iowa,  659.  y.  Westcolt,  40  111.  160;  Young  v. 


CHAP.   XXII.] 


REGISTRATION   OF  DEEDS. 


1157 


the  registry  act  in  force  in  that  State,  says:  "If  the  deed  is 
not  recorded  within  six  months,  nor  until  after  a  judgment  is 
rendered  against  the  vendor,  the  subsequent  registration  of 


Devries,  31  Gratt.  304;  Eidson  v. 
Huff,  29  Gratt.  338 ;  Grace  v.  Wade, 
45  Tex.  523;  Cavanaugh  v.  Peter- 
son, 47  Tex.  198;  Andrews  v.  Mat- 
thews, 59  Ga.  466;  Mainwaring  v, 
Templeman,  51  Tex.  205;  Fire- 
baugh  V.  Ward,  51  Tex.  409;  An- 
derson V.  Nagle,  12  W.  Va.  98; 
Parkcrsburg  Nat.  Bank  v.  Neal,  28 
W.  Va.  744;  Corpmann  v.  Backa- 
stow,  84  Pa.  St.  363;  McKeen  v. 
Sultenfuss,  61  Tex.  325;  Ranney  v. 
Hogan,  1  Un.  Gas.  253;  Arledge  v. 
?Iail,  54  Tex.  398;  Grimes  v.  Hob- 
son,  46  Tex.  416;  Stevenson  v. 
Texas  Ry.  Co.,  105  U.  S.  703,  26 
L.  ed.  1215;  Baker  v.  Woodward, 
12  Or.  3;  Dickey  v.  Henarie,  15 
Or.  351;  United  States  v.  Gris- 
wold,  7  Saw.  311;  Ayres  v.  Du- 
prey,  27  Tex.  593,  86  Am.  Dec.  657 ; 
Westervelt  v.  Voorhis,  42  N.  J.  Eq. 
179;  Sharp  v.  Shea,  32  N.  J.  Eq.  65; 
Hoag  V,  Sayre,  33  N.  J.  Eq.  552; 
King  V.  Paulk,  85  Ala.  186,  4  So. 
Rep.  825;  Barker  v.  Bell,  37  Ala. 
354;  Howell  v.  Brewer  (N.  J.  Ch.), 
5  Atl.  Rep.  137;  Wilcox  v.  Leo- 
minster  Nat.   Bank,  43   Minn.  541, 

19  Am.  St.  Rep.  259,  45  N.  W.  Rep. 
1136;  Lamberton  v.  Merchants' 
Bank,  24  Minn.  281;  Berryhill  v. 
Smith,  59  Minn.  285,  61  N.  W.  Rep. 
144;  Mississippi  Valley  Co.  v.  Chi- 
cago St.  L.  &  N.  O.  R.  Co.,  58  Miss. 
896,  38  Am.  St.  Rep.  348;  Moor  v. 
Watson,  1  Root,  388;  Guerrant  v. 
Anderson,  4  Rand,  208;  Heermans 
V.  Montague  (Va.,  March  30,  1890), 

20  S.  E.  Rep.  899;  Butler  v.  Mau- 
ry, 10  Humph-  420;  Hitz  v.  Nation- 


al Metropolitan  Bank,  111  U.  S. 
722,  28  L.  ed.  577;  Gallagher  v. 
Galletley,  128  Mass.  367;  Coffin  v. 
Ray,  1  Met.  212;  Paine  v.  Moore- 
land,  15  Ohio,  435,  45  Am.  Dec. 
585 ;  Holliday  v.  Franklin  Bank,  16 
Ohio,  533;  Mayham  v.  Coombs,  14 
Ohio,  428;  Holliday  v.  Franklin 
Bank,  16  Ohio,  533;  Fosdick  v. 
Barr,  3  Ohio  St.  471 ;  Tousley  v. 
Tousley,  5  Ohio  St.  78;  White  v. 
Denman,  16  Ohio,  59,  1  Ohio  St. 
110;  Van  Thorniley  v.  Peters,  26 
Ohio  St.  471;  Main  v.  Alexander, 
9  Ark.  112,  47  Am.  Dec.  112;  Haw- 
kins V.  Files,  51  Ark.  417;  Munford 
V.  Mclntyre,  16  111.  App.  316;  Mc- 
Fadden  v.  Worthington,  45  111.  362 ; 
Columbus  Buggy  Co.  v.  Graves,  108 
111.  459;  Roane  v.  Baker,  120  111. 
308,  11  N.  E.  Rep.  246;  Feinberg 
V.  Stearns,  56  Fla.  279,  47  So.  797, 
131  Am.  St.  Rep.  119;  Gary  v.  New- 
ton, 201  111.  170,  ^  N.  E.  267; 
Smith  V.  Willard,  174  III.  538,  51 
N.  E.  835,  66  Am.  St.  Rep.  313; 
Belcher  v.  Curtis,  119  Mich.  1,  11 
N.  W.  310,  75  Am.  St.  Rep.  376; 
Hall  V.  Sauntry,  72  Minn.  420,  75 
N.  W.  720,  71  Am.  St.  Rep.  497, 
London  v.  Bynum,  136  N.  C.  411, 
48  S.  E.  764;  White  v.  Provident 
Nat.  Bank,  27  Tex.  Civ.  App.  487, 
65  S.  W.  498;  Walker  v.  Douris. 
(Tex.)  61  S.  W.  725;  Price  v.  Wall, 
97  Va.  334,  33  S.  E.  599,  75  Am.  St. 
Rep.  788;  Blakemore  v.  Wise,  95 
Va.  269,  28  S.  E.  332,  64  Am.  St. 
Rep.  781;  Jones  v.  Byrne,  94  Va. 
751,  27  S.  E.  591. 


1158  THE  LAW  OF  DEEDS.        [CHAP,  XXH. 

the  deed  does  not  relate  back  so  as  to  defeat  the  Hen  of  the 
judgment,  but  the  statute  avoids  this  deed  in  favor  of  the  judg- 
ment creditor  who  has  no  notice  of  such  deed,  either  actual  or 
constructive,  at  or  before  the  rendition  of  such  judgment.  A 
notice  acquired  before  the  sale,  but  after  the  lien  attaches,  can- 
not operate  to  divest  the  lien  or  affect  the  title  of  a  purchaser 
under  the  judgment."  ®  In  Illinois,  the  rule  was  established 
at  an  early  day,  that  under  the  statutes  of  that  State,  a  pur- 
chaser, and  a  judgment  creditor  possessing  a  lien,  stood  upon 
the  same  equity,  and  were  equally  entitled  to  protection  against 
prior  unrecorded  deeds  of  which  they  had  no  notice.  From 
this,  the  conclusion  follows,  that  a  judgment  lien  attaches  to 
whatever  interest  the  records  disclose  the  judgment  debtor  to 
have,  if  the  judgment  creditor  has  not  actual  notice  from  other 
sources.  His  lien  is  not  restricted  to  the  interest  that  the  debtor 
actually  has,  but  will  take  precedence  over  a  prior  unrecorded 
deed.' 

§  636.    Actual  notice  subsequent  to  the  lien  in  these 
States. — In  those  States  where  a  judgment  lien  is  consid- 

•  Pollard   V.   Cocke,   19  Ala.    188,  same    remark    applies    to    another 

195.      See    Daniels    v.    Sorrells,    9  point  made  by  appellant's  counsel, 

Ala.  436;  Fash  v.  Ravesies,  32  Ala.  to  wit,  that  the  lien  of  a  judgment 

451;   De   Vendell   v.   Hamilton,  27  attaches   only  to  whatever  interest 

Ala.  156.  in  land  the  judgment  debtor  may, 

"f  Massey  v.  Westcott,  40  111.  160.  in    fact,    have,    and   does   not   take 

Said  Mr.  Justice  Lawrence:     "It  is  precedence    of    a    prior    purchaser 

insisted  that  Till  and  Knevels,  even  claiming  under  an  unrecorded  deed, 

if  they  had  no  notice,  are  not  en-  This  has  been  so  held  in  some  of 

titled    to    protection    as    judgment  the    States,  but   under   our  Act  of 

creditors,  because  they  have  parted  1833,   it  is   the  settled   law  of  this 

with  nothing,  and  have  less  equity  State  that  a  judgment  lien  attaches 

than  would  a   subsequent  purchas-  to  whatever  interest  in  real  estate 

er.     Under  our  statutes  a  purchas-  the   records   disclose   in   the  judg- 

er  and  a  judgment  creditor  having  ment  debtor,  in  the  absence  of  ac- 

a  lien  stand  upon  the  same  equity,  tual    notice    from    other    sources." 

and  this  has  been  so  held  ever  since  See,  also,   McFadden  v.  Worthing- 

the  Act  of  1833,  and   the  case  of  ton,  45  111.  362;  Guiteau  v.  Wisely, 

Martin  v.  Dryden,  1  Gilm.  216.  The  47  IlL  433. 


Chap,  xxii.]  registration  of  deeds.  1159 

ered  as  within  the  registry  laws,  the  Hen  of  the  judgment  cred- 
itor becomes  perfect  at  the  time  it  attaches,  unless  he  had  no- 
tice of  the  prior  unrecorded  deed.  If  he  acquires  notice  sub- 
sequently, he  is  not  affected  by  it.  The  notice  must  be  brouglit 
home  to  him  before  he  acquired  his  lien.  Simrall,  C.  J.,  said 
that  the  statute  of  Mississippi  may  receive  this  paraphrase  :  "A 
purchaser  must  record  his  deed  at  his  peril,  for  if  he  does 
not,  it  shall  be  void  as  to  that  creditor  of  the  vendor  who  ac- 
quires a  lien  on  the  property  before  he  gets  notice  of  the  sale. 
Within  the  meaning  of  the  words,  as  construed  by  the  courts, 
the  creditor  has  established  his  right  to  satisfaction  of  his 
debt  out  of  the  property  if  he  has  obtained  a  lien  before  he 
receives  notice  of  the  conveyance."  "There  is  but  one  class 
of  creditors  who  may  avoid  an  unregistered  deed — those  who 
have  obtained  liens  without  notice ;  subsequent  notice  no  more 
affects  them  than  it  would  a  purchaser  who  got  the  title  be- 
fore notice."  ' 

§  637.  Purchasers  at  execution  sale. — It  is  settled  by 
the  weight  of  authority  that  a  purchaser  at  an  execution  sale, 
other  than  the  judgment  creditor  himself,  is  a  bona  fide  pur- 
chaser for  a  valuable  consideration,  and  entitled  to  the  pro- 
tection of  the  registry  acts.  He  occupies  the  same  position, 
and  is  entitled  to  the  same  rights  as  a  purchaser  from  the 
g-antor  at  a  private  sale.  If  he  had,  at  the  time  of  the  sale, 
no  actual  or  constructive  notice  of  the  claims  of  third  persons, 
he  takes  the  premises,  as  would  any  other  purchaser,  freed 
from  all  equities  of  which  he  had  no  actual  notice,  and  which 
the  proper  records  failed  to  disclose.^     "And  though  our  stat- 

8  Loughridge     v.     Bowland,      52  v.  Duprey,  27  Tex.  605,  86  Am.  Dec. 

Miss.  546,  558.  657;    McNett   v.   Turner,   16   Wall. 

9Ehle  V.  Brown,  31  Wis.  414;  352,  21  L.  ed.  341 ;  Savery  v.  Brown- 
Morrison  V.  Funk,  23  Pa.  St.  421;  ing,  18  Iowa,  246;  Runyan  v.  Mc- 
Garwood  v.  Garwood,  9  N.  J.  L.  Clellan,  24  Ind.  165;  Davis  v. 
193;  Den  v.  Richman,  13  N.  J.  L.  Ownsby,  14  Mo.  170,  55  Am.  Dec. 
43;  Paine  v.  Moorland,  15  Ohio,  105.  See,  also,  Evans  v.  McGlas- 
435,  45  Am.  Dec.  585;  Jackson  v.  son,  18  Iowa,  ISO;  Waldo  v.  Rus- 
Chamberlin,   8    Wend.    625;    Ayres 


1160 


THE  LAW  OF  DEEDS.  [CHAP.  XXII. 


ute,"  said  Chief  Justice  Savage,  "does  not  save  the  rights  of 
judgment  creditors,  and  the  judgment  alone  is  unavaiHng  as 
an  encumbrance  against  an  unrecorded  deed,  yet  when  that 
judgment  is  enforced,  and  a  sale  is  made  upon  execution,  and 
the  sheriff's  deed  is  first  recorded,  the  purchaser  becomes  a 
bona  Me  purchaser,  and  in  that  character,  is  entitled  to  the 
property  in  preference  to  the  grantee  in  the  unrecorded  deed. 
Such  is  my  understanding  of  the  law,  and  such  is  the  current 
of  authority  as  I  read  the  cases."  ^  In  an  early  case  in  New 
Jersey,  Drake,  J.,  said :  "There  is  no  well-founded  distinction 
between  purchasers  at  sheriff's  sale,  and  purchasers  at  private 
sale.  The  term  'purchaser'  is  equally  applicable  to  both,  and 
good  policy  requires  that  the  former  should  be  protected  as 
well  as  the  latter."  '^  In  a  case  in  Wisconsin,  the  court  inti- 
mated that  if  mortgaged  premises  were,  at  the  time  of  the 
sale,  occupied  by  a  tenant  of  the  grantee,  this  circumstance 
was  perhaps  sufficient  to  put  the  purchaser  on  inquiry,  and  to 
affect  him  with  notice  of  the  interest  of  the  grantee  under  the 
unrecorded  deed.  But  the  court  held  that  if  the  purchaser  at 
the  foreclosure  sale  took  possession  of  the  premises,  protec- 
tion would  be  given,  under  the  registry  law,  to  one  -who  after- 
ward bought  the  land  of  the  execution  purchaser  in  good  faith, 
for  value,  before  the  adverse  deed  was  recorded.^  It  is,  how- 
sell,  5  Mo.  387;  Draper  v.  Bryson,  i  In  Jackson  v.  Chamberlin,  8 
26  Mo.  108,  69  Am.  Dec.  483 ;  Scrib-  Wend.  625,  626. 
ner  v.  Lockwood,  9  Ohio,  184;  2  in  Den  v.  Richman,  1  Green,  43, 
Jackson    v.    Post,    15    Wend.    588;      59. 

Fords  V.  Vance,  17  Iowa,  94;  Stil-  3  Ehle  v.  Brown,  31  Wis.  405.  Mr. 

well  V.  McDonald,  39  Mo.  282;  Chief  Justice  Dixon,  on  application 
Thomas  v.  Vanlieu,  28  Cal.  616;  for  rehearing,  discussed  the  rights 
Holmes  v.  Buckner,  67  Tex.  107;  of  purchasers  at  execution  sales 
Lee  V.  Bermingham,  30  Kan.  312;  at  considerable  lengA,  and  after  an 
Feinberg  v.  Stearns,  56  Fla.  279,  47  examination  of  the  cases,  re- 
So.  797,  131  Am.  St.  Rep.  119.  But  marked:  "There  can  be  no  doubt, 
see  McCalla  v.  Knight  Investment  we  think,  of  the  correctness  of  the 
Co.,  77  Kan.  770,  14  L.R.A. (N.S.)  position  thus  generally  assumed  by 
1258,  94  Pac.  126.  the  authorities,  that  the  statute  is 


CHAP.   XXII.] 


REGISTRATION   OF  DEEDS. 


1161 


ever,  held  in  Mississippi  that  judgment  creditors  or  purchasers 
at  a  sheriff's  sale  are  not  purchasers  for  a  valuable  considera- 
tion, but,  in  contemplation  of  a  court  of  equity,  mere  volun- 
teers.* 


§  638.  Purchaser  at  such  sale  with  notice. — Obvious- 
ly, a  purchaser  at  an  execution  sale,  where  a  judgment  is  not 
superior  to  an  unrecorded  deed,  can  be  in  no  more  favorable 
position  than  he  would  be  if  he  were  buying  at  private  sale. 
We  have  seen  that  the  law  makes  no  distinction  between  him 
and  the  ordinary  purchaser.  He  is  entitled  to  the  same  privi- 
leges, and  he  is  bound  by  the  same  notice.     If,  therefore,  at 


to  be  fairly  and  liberally  construed, 
so  as  to  prevent  and  obviate  the 
mischiefs  and  abuses  which  it  was 
the  design  of  the  legislature  to 
remedy.  The  statute  was  made  to 
prevent  those  who  once  had  title  to 
land  from  making  successive  sales, 
and  thereby  defrauding  one  or  more 
of  the  purchasers  which,  at  common 
law  and  without  the  statute  might 
be  done;  and,  as  a  means  of  ac- 
complishing that  object,  to  protect 
innocent  purchasers,  buying  and 
paying  their  money  on  the  credit 
of  the  recorded  title,  who  should 
themselves  testify  their  apprecia- 
tion of,  and  proper  regard  for,  the 
rights  of  others,  by  complying 
with  the  condition  or  requirement 
of  the  statute  in  causing  their  own 
deeds  to  be  duly  recorded.  Such 
is  the  object,  and  such  is  the  jus- 
tice and  policy  of  the  law,  for  the 
protection  of  innocent  purchasers 
who  have  acquired  the  ostensible 
title  exhibited  and  shown  by  the 
record.  For  their  protection  and 
safety,  prior  unrecorded  convey- 
ances   and    titles    must    yield,    and 


must  be  invalidated.  In  view  of 
this  object  and  of  this  policy,  and 
of  the  "manifest  justice  of  the  ends 
to  be  attained,  it  would  require  very 
urgent  considerations  indeed  to  in- 
duce us  to  put  a  construction  upon 
our  registry  law  against  its  letter, 
which  would  enable  a  purchaser  to 
keep  his  deed  in  his  own  custody 
and  unrecorded  for  years,  and  suf- 
fer the  title  of  record  of  his  gran- 
tor, and  the  possession  of  the  land, 
to  pass  into  the  hands  of  one  inno- 
cent purchaser  for  value,  whose 
deed  should  be  first  recorded,  or,  as 
in  this  case,  into  and  through  the 
hands  of  several  such  purchasers  in 
succession,  and  yet,  after  all  this 
had  been  done,  then  to  record  his 
deed,  and  assert  and  maintain  his 
paramount  title,  and  uproot  and  de- 
stroy that  of  one  or  all  of  such  in- 
nocent purchasers." 

4  Kelly  V.  Mills,  41  Miss.  267, 
overruling  Kilpatrick  v.  Kilpatrick, 
23  Miss.  124,  55  Am.  Dec.  79.  See 
McCalla  v.  Knight  Investment  Co., 
n  Kan.  770,  14  L.R.A.(N.S.)  1258, 
94  Pac.  126. 


1162  THE  LAW  OF  DEEDS.  [cHAP.  XXll. 

the  time  of  the  sale,  he  has  actual  notice  of  the  rights  of  others, 
or  constructive  notice,  by  the  registration  before  sale  of  the 
instruments  evidencing  or  conferring  those  rights,  or,  if  the 
party,  equitably  entitled  to  the  property,  is  in  possession,  the 
title  the  purchaser  acquires  is  subject  to  such  rights  or  inter- 
ests.' "It  is  the  settled  doctrine  of  this  court  that,  under  our 
present  registry  laws,  the  lien  of  a  judgment,  before  sale  there- 
under, does  not  take  precedence  of  a  prior  unrecorded  mort- 
gage; and  that,  if  (as  in  this  instance)  the  mortgage  will  be 
recorded  before  the  sheriff's  sale,  the  purchaser  at  such  sale 
will  be  affected  with  notice.^ 

§  639.  Rights  of  judgment  creditor  as  purchaser — 
Comments. — A  purchaser  at  an  execution  sale  is,  as  we 
have  shown,  entitled  to  all  the  protection  of  the  registry  laws. 
If  he  buys  without  notice,  he  is  a  bona  fide  purchaser,  and  the 
deed  executed  by  the  sheriff  to  him  will  take  precedence  over 
a  prior  unrecorded  conveyance  of  which  he  had  no  notice.  But 
suppose  the  judgment  creditor  becomes  himself  a  purchaser  at 
the  sheriff's  sale?  He  may  purchase  the  property,  and  the 
amount  of  his  bid  may  be  in  total  or  partial  satisfaction  of 
his  claim.  Is  he  entitled  to  the  benefit  of  the  registry  laws? 
Is  he  protected  from  all  prior  unrecorded  deeds  and  encum- 
brances of  which  he  had  no  notice  at  the  time  of  the  sale? 
The  question  of  whether  he  occupies  the  position  of  a  stranger, 
and  is  entitled  to  the  same  privileges  and  protection,  or  is  to 
be  regarded  as  a  mere  volunteer,  succeeding  to  the  rights  of 

8  Valentine   v.    Havener,   20   Mo.  93;   Righter  v.   Forrester,   1   Bush, 

133;  Byers  v.  Engles,  16  Ark.  543;  278;  Sappington  v.  Oeschli,  49  Mo. 

Chapman  v.   Coats,   26   Iowa,   288;  244;   Black  v.   Long,   60   Mo.    181; 

Hoy  V.  Allen,  27  Iowa,  208;  Hack-  Fox  v.   Hall,  74  Mo.  315,  41  Am. 

ett  V.  Callender,  32  Vt.  97;  Priest  Rep.  316. 

V.  Rice,  1   Pick.   164,  11  Am.  Dec.  6  chapman    v.    Coats,    26    Iowa, 

156;  Apperson  v.  Burgett,  33  Ark.  291;  Davis  v.  Ownsby,  14  Mo.  170, 

328;  Schroeder  v.  Gurney,  73  N.  Y.  55  Am.  Dec.  105. 
430;   Potter  v.   McDowell,  43   Mo. 


CHAP.    XXII.]  REGISTRATION   OF  DEEt)S.  1163 

the  juclgnieiit  (lel)tor  only,  is  one  of  interest,  and  one  upon 
which  the  decisions  are  not  uniform. 

§  640.     General  rule  that  judgment  creditor  is  not  a 
bona  fide  purchaser. — The  rule  maintained  by  the  weight 
of  authority,  is  that  a  judgment  creditor  ulio  takes  the  prop- 
erty in  part  of  total  satisfaction  of  his  demand,  is  not  a  pur- 
chaser entitled  to  protection  against  unrecorded  conveyances. 
"To  constitute  a  person  a  bona  Ude  purchaser  within  the  mean- 
ing of  the  statute,  he  must,  upon  the  faith  of  the  purchase, 
have  advanced  for  it  a  valuable  consideration.     If  he  was  a 
creditor  antecedent  to  the  purchase,  and  paid  for  the  purchase 
by  a  credit  on  his  demand,  then  inasmuch  as  he  has  parted  with 
no  consideration  on  the  faith  of  the  purchase,  he  is  not  a  bona 
Me  purchaser  within  the  meaning  of  the  statute."  '     A  bank 
became  a  purchaser  at  an  execution  sale  of  the  property  of  its 
judgment  debtor,  and  received  a  certificate  of  purchase  from 
the  sheriff.     Subsequently,  the  bank  by  an  instrument  in  writ- 
ing assigned  the  sheriff's  certificate  to  a  third  party,  releasing 
to  him  all  its  right  and  title  to  the  land,  and  authorizing  the 
sheriff  to  execute  a  conveyance  to  him.     The  latter  attempted 
to  obtain  a  deed  from  the  sheriff,  but  on  account  of  his  ab- 
sence from  home  accepted  a  deed  from  the  judgment  debtor, 
in  place  of  the  sheriff's  deed.     A  judgment  creditor  of  the 
bank  afterward  obtained  a  conveyance  of  the  premises  from 
the  sheriff  on  the  assumption  that  they  were  the  property  of 

■'Ayres  v.  Duprey,   27  Tex.  593,  Gray,  10  Neb.  186;  Carney  v.  Em- 

86  Am.  Dec.  657;  Wright  v.  Doug-  mons,  9  Wis.  114;  Treptow  v.  Buse, 

las,  10  Barb.  97;  Dickerson  v.  Till-  10    Kan.     170;     National    Bank    v. 

inghast,  4  Paige,  215,  25  Am.  Dec.  King,  110  111.  254;  Shirk  v.  Thom- 

528;  Orme  v.  Roberts,  33  Tex.  768;  as,  121   Ind.   147,   16  Am.   St.  Rep. 

McAdow  V.  Black,  6  Mont.  601,  13  381.     See,   also,   cases   cited   §   634 

Pac.  Rep.  377;  Rutherford  v.  Green,  {ante).     See  Blankenship  v.  Doug- 

2  Ired.  Eq.  121 ;  Mansfield  v.  Greg-  las,  26  Tex.  225,  82  Am.  Dec.  608. 

cry,     8    Neb.    432 ;     O'Rourke     v.  And  see  Hunter  v.  Watson,  12  Cal. 

O'Connor,  39  Cal.  442;  Emerson  v.  363,  73  Am.  Dec.  543. 
Sansomc,    41    Cal.    552;    Harral    v. 


1164 


THE  LAW  OF  DEEDS. 


[chap.  XXII. 


the  bank.     It  was  held  that  the  deed  of  the  judgment  debtor 
might,  by  agreement  of  the  parties,  be  lawfully  substituted  in- 
stead of  that  of  che  sheriff,  and  that  by  such  substitution,  the 
sheriff's  sale  was  virtually  subverted,  and  that  officer  was  di- 
vested of  all  power  to  convey  the  premises  for  the  benefit  of  a 
third  person.     It  followed  as  a  consequence  that  the  convey- 
ance from  the  sheriff  to  the  plaintiff  was  void,  and  further  that 
"the  assignee  of  the  bank  had  the  equitable  title  by  the  assign- 
ment of  the  sheriff's  certificate,  and  the  legal  title  by  the  deed 
of  the  judgment  debtor,  and  both  being  united  in  him,  they 
constituted  a  perfect  title  to  the  premises.    The  court  also  held 
that  no  stranger  could  object  to  the  sheriff's  conveyance  to  the 
bank's  assignee,  and  that  to  constitute  a  person  a  bona  Me 
purchaser,  he  must  have  advanced  a  new  consideration  for  the 
purchase ;  bidding  off  the  premises  and  applying  the  bid  on  his 
judgment  will  not  constitute  a  bona  fide  purchase,  for  no  con- 
sideration is  advanced  on  the  faith  of  the  purchase.'     This 


8  Wright  V.  Douglas,  10  Barb.  97. 
Speaking  of  the  latter  proposition, 
as  to  whether  a  judgment  creditor 
is   a   bona  Me  purchaser,   Gridley, 
P.  J.,  at  page  106,  said :    "It  is  con- 
tended that  inasmuch   as  the  deed 
from  Dennis  to  Dana  was  not  re- 
corded, the  plaintiff  when  he  pur- 
chased   on    the   judgment    obtained 
in  the  attachment  suit  in  1844,  was 
a  bona  fide  purchaser.    The  counsel 
for  the  plaintiff  argued  as  though 
the  levy  of  his  attachment  was  in 
the  nature  of  a  purchase,  but  that 
idea  cannot  be  supported.     It  was 
only  when  he  purchased  his  prem- 
ises on  his  execution,  that  he  can 
claim  to  be  a  purchaser  at  all.    But 
I  do  not  think  that  he  can  be  re- 
garded as  a  bona  fide  purchaser  for 
two   reasons :      First,   to   constitute 
a  bona  fide  purchaser,  he  must  have 
advanced  the  consideration  for  the 


purchase.  It  will  not  constitute  a 
bona  fide  purchase  that  the  creditor 
bids  off  the  premises  and  apolies 
the  bid  on  his  judgment.  That  is 
a  precedent  debt,  and  the  consid- 
eration is  not  advanced  on  the  faith 
of  the  purchase :  1  Rev.  Stats.  746, 
§  1 ;  Dickerson  v.  Tillinghast,  4 
Paige,  215,  25  Am.  Dec.  528;  Cod- 
dington  v.  Bay,  20  Johns.  637,  11 
Am.  Dec.  342.  Second,  I  am  con- 
strained to  say  that  the  plaintiff  had 
notice  enough  to  put  him  on  in- 
quiry, if  not  to  charge  him  with 
a  knowledge  of  the  defendant's  ti- 
tle. The  tripartite  deed  was  on  rec- 
ord when  he  purchased  at  the  exe- 
cution sale.  That  was  enough  to 
put  him  on  inquiry  as  to  the  exact 
terms  of  the  deed  from  Dennis  to 
Dana.  Again,  it  is  fair  to  conclude 
that  the  defendant,  or  some  one 
under    whom    he    claimed,    was    i» 


CHAP.   XXII.]  REGISTRATION   OF   DEEDS.  1165 

principle  is  analogous  to  that  which  prevails  where  there  is  an 
unrecorded  mortgage,  and  the  mortgagor  conveys  the  prem- 
ises to  a  creditor  having  nc»  notice  of  the  mortgage,  in  pay- 
ment of  a  precedent  debt.  It  is  held  that,  in  such  a  case,  the 
creditor  is  not  a  bona  fide  purchaser  within  the  meaning  of  the 
registration  laws,  so  as  to  entitle  his  deed  to  precedence  over 
the  prior  unrecorded  mortgage.^ 

§  641.  Contrary  rule  in  Iowa. — In  Iowa,  there  have 
been  several  decisions  on  the  question  as  to  whether  a  judg- 
ment creditor,  purchasing  at  a  sheriff's  sale,  is  affected  by  the 
existence  of  an  unrecorded  deed  of  which  he  had  no  notice. 
In  one  of  these  cases  the  judgment  debtor  held  the  legal  title 
to  the  lands  in  controversy  under  an  implied  trust.  After  the 
rendition  of  judgment  against  him,  but  before  the  filing  of  a 
transcript  of  the  judgment  in  the  county  in  which  the  lands 
were  situated,  he  conveyed  them  to  the  cestui  que  trust,  who 
neglected  the  filing  of  his  deed  until  eight  months  after  the 
sale  by  the  sheriff  to  the  judgment  creditor.  The  latter  pur- 
chased without  any  notice  of  the  deed  to  the  cestui  que  trust, 
or  of  his  rights  in  the  premises.  It  was  held  that  the  judg- 
ment creditor  stood  on  the  same  footing  as  any  other  bona 
fide  purchaser,  and  would  be  afforded  protection  from  an  un- 
recorded deed,  or  outstanding  equities,  of  which  at  the  time 
of  his  purchase  he  had  no  notice.^  Although  it  had  previous- 
ly been  decided^  that  a  judgment  creditor,  by  merging  his 
judgment  into  a  title,  without  notice  of  prior  equitable  claims, 
became  a  bona  fide  purchaser,  and  as  such  entitled  to  the  same 
protection  as  other  subsequent  purchasers,  in  the  absence,  of 
course,  of  equitable  circumstances,  yet,  it  was  said  that  the 
course  of  decision  had  been  vacillating,  and  the  rule  could 

possession.     The  defendant  was  in  ^  Dickerson      v.      Tillinghast,      4 

possession  at  the  commencement  of  Paige,  215,  25  Am.  Dec.  528. 

this  suit.    When  did  he  acquire  the  ^  Gower  v.  Doheney,  33  Iowa,  36. 

possession?      Most    probably    when  2  Halloway   v.    Platner,  20   Iowa, 

he  took  the  tripartite  deed."  121,  89  Am.  Dec.  517. 


1166 


THE  LAW  OF  DEEDS. 


[chap.  XXII. 


not  be  declared  to  be  established.  "It  is  well  settled  that  a 
third  person,  who  purchases  at  a  sheriff's  sale,"  said  Chief  Jus- 
tice Day,  "without  notice  of  outstanding  equities,  is  entitled 
to  the  same  protection  as  any  other  purchaser  without  notice 
and  for  value.  The  rule,  however,  as  to  the  judgment  creditor 
has  oscillated  somewhat,  and  can  scarcely  yet  be  regarded  as 
settled  in  this  State."  '     Subsequently  it  was  held  in  the  same 


8  Gower  v.  Doheney,  33  Iowa,  38. 
Continuing,  the  court  said:  "In 
Norton,  Jewett  &  Busby  v.  Wil- 
liams, 9  Iowa,  529,  which  was  an 
action  of  right,  it  was  said  that  the 
rule  that  relief  should  not  generally 
be  granted  against  a  bona  Ude  pur- 
chaser without  notice  has  no  place 
in  favor  of  a  judgment  creditor, 
though  he  may  have  no  notice  of 
an  outstanding  equity.  As  the  pur- 
chaser in  that  case,  however,  was 
a  third  party,  with  both  actual  and 
constructive  notice  of  the  outstand- 
ing deed,  which  was  filed  for  rec- 
ord after  judgment,  but  before  the 
sheriff's  sale,  this  point  was  not  in- 
volved in  that  case,  and  what  is 
said  in  regard  to  it  is  only  a  dictum. 
In  the  case  of  Parker  v.  Pierce,  16 
Iowa,  227,  the  question  whether  a 
purchaser,  at  a  sale  under  execution, 
will  take  the  land  discharged  of 
every  claim  or  title,  whether  aris- 
ing on  an  unregistered  deed  or  a 
mere  equity,  was  expressly  left  un- 
decided. In  the  case  of  Vannice 
V.  Bergen,  16  Iowa,  556,  85  Am. 
Dec.  531,  it  was  maintained  by  Jus- 
tice Dillon,  in  his  dissenting  opin- 
ion, that  a  purchaser  at  a  sheriff's 
sale  will  take  the  land  discharged 
of  every  claim  or  title,  whether 
arising  under  an  unregistered  deed 
or  a  mere  equity,  of  which  he  had 
no  notice  at  the  time  of  his  pur- 


chase, and  which  would  be  invalid 
against  an  ordinary  purchaser;  and 
that  'the  rule  applies  equally  when 
the  judgment  creditor  is  the  pur- 
chaser, as  when  the  purchase  is 
made  by  a  stranger.'  In  the  case 
of  Evans  v.  McGlasson,  18  Iowa, 
152,  the  court  united  in  holding  that 
a  judgment  creditor,  who  becomes 
a  purchaser  at  sheriff's  sale,  is  pro- 
tected at  law  against  matters  of 
which,  at  the  time  of  the  purchase, 
he  had  no  notice,  and  that  this  rule 
also  obtains  in  equity,  unless  there 
are  equities  of  so  strong  and  per- 
suasive a  nature  as  to  prevent  its 
application;  and  these,  if  they  are 
relied  upon,  must  be  alleged  and 
proved.  As  no  such  equities  have 
been  established  in  the  present  case, 
the  doctrine  of  Evans  v.  McGlas- 
son may  be  regarded  as  direct  au- 
thority for  sustaining  the  title  of 
the  plaintiff.  But  the  rights  of 
the  judgment  creditor  received 
more  direct  recognition  in  the 
case  of  Halloway  v.  Platner, 
20  Iowa,  121,  89  Am.  Dec.  517,  in 
which  it  was  held  that  when  a 
creditor  merges  his  judgment  into 
a  title  without  actual  or  construct- 
ive notice  of  prior  equities  he  be- 
comes a  purchaser  within  the  mean- 
ing of  section  2220  of  the  Revision, 
and  is  entitled  to  equal  protection, 
in  the  absence  of  equitable  circura- 


CHAP.   XXII.] 


REGISTRATION   OF  DEEDS. 


1167 


State,  that  if  the  judgment  debtor  neglects  to  give  notice  of 
appeal  until  after  a  sale  of  the  property  under  the  judgment 
is  made,  and  the  judgment  creditor  becomes  the  purchaser,  he 
is  entitled  to  the  same  protection  as  any  other  bona  fide  pur- 
chaser, if  the  judgment  is  afterward  reversed,  and  he,  on  a 
new  trial,  again  recovers  judgment.  This  rule  was  applied  in 
a  case  where,  after  the  sale  on  execution,  and  while  the  appeal 
was  pending,  the  judgment  debtor  sold  the  property  to  another 
person.  The  latter  brought  an  action  to  restrain  the  judgment 
creditor  from  selling  the  property  on  execution  issued  on  his 
second  judgment.  The  court  held,  however,  that  the  judgment 
creditor  had  a  perfect  title,  and  refused  to  enjoin  the  sale.* 


stances,  with  any  other  subsequent 
bona  fide  purchaser.  We  attach  no 
importance,  under  the  circum- 
stances of  the  case,  to  the  delay 
in  obtaining  the  sheriff's  deed.  Had 
the  deed  been  procured  and  placed 
upon  record  at  the  time  of  the  ex- 
piration for  redemption,  White 
would,  so  far  as  appears,  have  oc- 
cupied precisely  the  same  position 
as  now.  It  is  not  shown  that  he 
has  sustained  any  loss,  even  to  the 
amount  of  the  filing  fee  of  his  deed, 
from  the  delay  in  procuring  the 
sheriff's  deed.  When  Hampton 
conveyed  to  him,  the  judgment  was 
not  a  lien  upon  the  property  con- 
veyed. If  the  subsequent  taking 
of  the  property  to  satisfy  Hamp- 
ton's debt  gave  White  any  right  of 
action  against  him,  it  does  not  ap- 
pear but  that  he  was  just  as  solv- 
ent when  the  sheriff's  deed  was 
procured  as  when  the  year  for  re- 
demption relapsed."  "It  is  a  whole- 
some rule  of  equity  that  where  one 
of  two  innocent  persons  must  suf- 
fer,   the    loss    will    fall    upon    that 


party  who   has  been   guilty  of  the 
first  negligence." 

*  Frazier  v.  Crafts,  40  Iowa,  110. 
Day,  J.,  delivered  the  opinion  of 
court,  and  said :  "The  case  pre- 
sents this  question:  May  a  judg- 
ment creditor  who  purchases  real 
estate  at  sheriff's  sale,  before  notice 
of  appeal  upon  which  the  judg- 
ment under  which  the  sale  occurred 
is  afterward  reversed,  but  who, 
when  the  cause  is  remanded,  re- 
covers another  judgment  for  the 
whole  amount  of  the  first  and  in- 
terest, under  any  circumstances  be 
considered  a  bona  fide  purchaser, 
and  be  entitled  as  such  to  the  pro- 
tection of  the  provisions  of  sec- 
tion 341  of  the  Revision§  Or,  in 
other  words,  can  a  judgment  debtor 
whose  real  estate  has  been  sold  to 
the  judgment  plaintiff  in  satisfac- 
tion of  the  judgment  before  notice 
of  appeal,  after  the  judgment  under 
which  the  sale  occurred  has  been  re- 
versed, and  the  cause  has  been  re- 
manded for  a  new  trial,  and  after 
the  sheriff's  deed  to  the  judgment 


1168 


THE  LAW  OF  DEEDS. 


[chap.  XXU. 


§  641a.  In  other  States. — It  is  held  in  Texas,  that  the 
Hen  acquired  by  a  creditor  without  notice  by  the  judgment  and 
levy  of  execution  is  superior  to  the  title  founded  on  an  un- 


plaintifF  has  been  recorded,  sell  the 
real  estate  to  a  third  party  and  con- 
vey a  valid  title  thereto,  notwith- 
standing judgment  is  again  ren- 
dered on  a  new  trial  for  the  full 
amount  of  the  former  judgment? 
These  questions  have  not  hitherto 
been  answered  by  the  adjudications 
of  this  court.  The  case  of  Two- 
good  v.  Franklin,  27  Iowa,  239, 
upon  which  appellant  seems  to  rely, 
differs  from  the  present  one  in  two 
material  respects:  (1)  The  pur- 
chase was  made  after  notice  of  the 
appeal.  (2)  The  party  under  whose 
judgment  the  sale  occurred  failed, 
after  the  reversal,  to  recover  an- 
other judgment.  The  language 
upon  which  appellant  relies,  'that, 
to  constitute  a  bona  fide  purchaser 
of  land,  one  must  have  purchased 
without  knowledge,  at  least  actual 
knowledge,  of  an  appeal,  and  must 
have  parted  with  his  money,  or  al- 
tered his  situation  on  the  strength 
of  such  purchase,'  expresses  mere- 
ly the  views  of  the  writer  of  the 
opinion.  The  only  point  deter- 
mined in  that  case  is,  'that  a  pur- 
chase of  land  at  a  sheriff's  sale 
by  the  plaintiff  in  execution,  or  his 
attorney,  with  actual  knowledge  of 
a  depending  appeal,  is  at  the  peril 
of  the  purchaser,  and  the  party  or 
his  attorney  thus  buying  is  not, 
within  the  meaning  of  the  statute, 
a  bona  fide  purchaser.'  The  ques- 
tion now  involved  may  fairly  be 
regarded  as  res  nova.  No  good 
reason  is  apparent  why,  under  the 
circumstances  of  this  case,  a  judg- 


ment plaintiff  should  not  be  pro- 
tected. If,  upon  the  retrial,  he  had 
failed  to  recover  judgment,  he 
would  stand  in  an  attitude  altogeth- 
er different.  Under  such  circum- 
stances he  would  be  bound  to  make 
restitution  to  the  judgment  de- 
fendant. And  so  long  as  the  title 
to  the  land  remained  in  him,  equity 
would  require  that  he  restore  the 
land  itself,  the  very  thing  improp- 
erly received  in  satisfaction  of  a 
judgment  which  ought  never  to 
have  been  rendered.  And  if  he 
could  thus  be  required  to  restore 
the  land  to  the  judgment  defend- 
ant, he  might  be  compelled  to  re- 
store it  to  the  vendee  of  such  de- 
fendant. But  in  this  case  the  re- 
covery of  a  second  judgment  for 
the  full  amount  of  the  first  judg- 
ment and  interest  has  definitely  set- 
tled the  question  that  Crafts  is  un- 
der no  obligation  to  make  restitu- 
tion to  Clark.  If  Clark  had  brought 
an  action  to  recover  the  value  of 
the  land,  it  is  clear  that  Crafts 
might  have  offset  the  claim  by  the 
second  judgment.  And  if  Clark 
had  sought  to  recover  the  land  it- 
self, and  had  even  succeeded,  it 
would  have  been  in  his  hands  sub- 
ject to  the  lien  of  such  judgment. 
The  true  principle  upon  which  bona 
fide  purchasers,  at  a  judicial  sale, 
are  protected  in  the  rights  acquired, 
we  apprehend  to  be  that  they  have 
a  right  to  rely  upon  the  validity  of 
the  judgment,  and  to  invoke  its 
protection  for  acts  done  tnider  it 
whilst  it  is  in  force.     If  this  be  the 


CHAP.   XXII.]  REGISTRATION  OF  DEEDS. 


1169 


recorded  deed,  and  that  a  purchaser  under  the  execution  with 
notice,  is  entitled  to  all  the  rights  of  the  creditor.  It  was  said 
by  the  court:     "Now,  if  the  unrecorded  instrument  cannot 


principle,  then  there  is  no  reason 
why  a  party  acting  in  every  respect 
in  good  faith  and  before  notice  of 
appeal,  should  not  be  protected  to 
the  same  extent  as  strangers.  In 
Gower  V.  Doheney,  33  Iowa,  39 
(not  cited  by  either  party  to  this 
appeal),  are  reviewed  all  the  previ- 
ous decisions  of  this  court  cited  by 
the  appellee  upon  the  question  of 
the  protection  to  be  afforded  to  a 
judgment  creditor,  purchasing  at  a 
judicial  sale,  against  outstanding 
equities,  and  we  held  that  he  was 
entitled  to  protection  against  such 
equities  of  which  he  had  no  notice 
at  the  time  of  his  purchase.  This 
decision  is  put  upon  the  ground  that 
the  judgment  plaintiff  stands  upon 
the  same  footing  as  any  other  pur« 
chaser.  The  principle  determined 
in  that  case  is  decisive  of  this.  The 
doctrine  here  maintained  does  not 
enable  a  party  to  retain  property 
acquired  under  an  unjust  judgment. 
If  the  judgment  is  ultimately  re- 
versed, he  must  restore  the  prop- 
erty itself,  or  its  value.  Besides 
the  judgment,  defendant  has  it  al- 
ways in  his  power,  by  promptly 
taking  an  appeal,  to  prevent  the 
judgment  creditor  from  becoming  a 
bona  fide  purchaser:  See  Wood- 
cock v.  Bennett,  1  Cowen,  711,  734, 
13  Am.  Dec.  568." 

The  general  rule  as  to  the  resti- 
tution of  property  ourchased  under 
a  judgment  is  that  if  third  persons 
become  the  purchasers,  their  title 
is  not  divested  by  a  subsequent  re- 
versal of  the  judgment.  This  rule 
Deeds,  Vol.  II.— 74 


is  adopted  to  encourage  bidding  at 
judicial  sales,  and  rests  on  consid- 
eration of  public  policy:  Frost  v. 
McLeod,  19  La.  Ann.  69;  Farmer 
V.  Rogers,  10  Cal.  335 ;  Reynolds  v. 
Harris,  14  Cal.  667,  76  Am.  Dec. 
459;  Gott  v.  Powell,  41  Mo.  416; 
Woodcock  V.  Bennett,  1  Cowen,  711, 
13  Am.  Dec.  568;  Piaster  v.  Flem- 
ing, 56  111.  457;  Hubbell  v.  Broad- 
well's  Heirs,  8  Ohio,  120;  Coster  v. 
Peters,  7  Robt.  386;  Jesup  v.  City 
Bank,  15  Wis.  604,  82  Am.  Dec. 
703 ;  Porter  v.  Robinson,  3  Marsh. 
A.  K.  253,  13  Am.  Dec.  153 ;  Haus- 
child  V.  Stafford,  27  Iowa,  301; 
Dorsey  v.  Thompson,  37  Md.  25 ; 
Wood  v.  Jackson,  8  Wend.  9,  22 
Am.  Dec.  603 ;  Lovett  v.  German 
Reformed  Church,  12  Barb.  67; 
Leslie  v.  Richardson,  60  Ala.  563; 
Marks  v.  Cowles,  61  Ala.  299;  Pit- 
field  v.  Gazzam,  2  Ala.  325 ;  Fergus 
V.  Woodworth,  44  111.  374;  Stinson 
V.  Ross,  51  Me.  556,  81  Am.  Dec. 
591 ;  Taylor  v.  Lauer,  26  La.  Ann. 
307;  Stroud  v.  Casey,  25  Tex.  740, 
78  Am.  Dec.  556;  Irwin  v.  Jeffers, 
3  Ohio  St.  389.  It  is  said  that  the 
same  rule  applies  to  the  assignee 
of  the  judgment  creditor  who  has 
become  a  purchaser:  Horner  v. 
Zimmerman,  45  111.  14;  Vogler  v, 
Montgomery,  54  Mo.  577;  Taylor 
v.  Boyd,  3  Ohio,  337,  17  Am.  Dec 
603 ;  Guiteau  v.  Wisely,  47  111.  433 ; 
Wadhams  v.  Gay,  73  111.  422;  Mc- 
Ansland  v.  Pundt,  1  Neb.  211.  But 
this  is  denied  in  Alabama :  Marks 
v.  Cowles,  61  Ala.  299.  But  the 
rule  that  the  reversal  of  a  judgment 


1170  THE  LAW  OF  DEEDS.  [CHAP.  XXII. 

take  effect,  but  is  void  as  to  creditors,  it  is  absurd  to  say  that 
the  creditor's  lien  does  not  bind  the  land  to  which  it  applies, 
or  that  it  cannot  be  enforced  by  the  sale  of  the  land  so  bound 
by  it  for  the  payment  of  the  debt,  just  as  if  no  such  instrument 
existed.  And  it  would  be  equally  as  absurd  to  say  that  the 
right  acquired  by  the  creditor  by  his  lien,  not  merely  to  pur- 
chase himself,  but  to  have  the  lien  sold  in  open  market,  when 
once  secured  can  be  taken  away  by  the  subsequent  record  of 
such  instrument,  or  that  the  party  holding  such  lien  can,  by 
subsequent  notice,  be  precluded  from  the  full  benefit  of  his  lien 
for  the  satisfaction  and  discharge  of  his  demand,  except  by 
becoming  himself  the  purchaser."  ^ 

§  642.  Comments. — In  those  States  where  the  judg- 
ment lien  is  entitled  to  precedence  over  an  unrecorded  deed 
or  encumbrance,  thivS  question  cannot  arise.  If  the  lien  of  the 
judgment  is  superior,  so  must  be  the  title  acquired  by  virtue 
of  a  sale  under  the  judgment.  But  in  the  majority  of  the 
States,  where  the  doctrine  prevails  that  a  judgment  affects  only 
the  actual  interest  of  the  judgment  debtor,  and  does  not  take 
priority  over  unrecorded  conveyances,  the  judgment  creditor  is 
regarded  as  a  mere  volunteer.  If  he  takes  nothing  by' his  lien, 
how  can  he  acquire  a  better  right  by  attempting  to  convert  that 
lien  into  a  title?  The  reason  that  an  unrecorded  deed  is  given 
the  preference  over  the  judgment  lien,  is  that  the  judgment 

does  not  affect  a  third  person  who  Tex.   87;   Stevenson  v.  Texas   Ry. 

becomes  a  purchaser,  has  no  appli-  Co.,  105  U.  S.  703,  26  L.  ed.  1215. 

cation    when   the   purchaser    is    the  See  in  other  States,  Sharp  v.  Shea, 

judgment    creditor    himself:    Rey-  32  N.  J.  Eq.  65;  Condit  v.  Wilson, 

nolds  V.  Harris,  14  Cal.  667,  76  Am.  36  N.  J.  Eq.  370;  Fash  v.  Ravesies, 

Dec.  459.  32  Ala.  451;   Smith  v.   Jordan,  25 

6  Grace   v.    Wade,    45    Tex.    522.  Ga.  687 ;  Wood  v.  Chapin,  13  N.  Y. 

The  earlier  case  of  Price  v.   Cole,  509,    67    Am.    Dec.    62.      See,    also, 

35  Tex.   461,  was  overruled.     See,  White  v.  Provident   Nat.  Bank,  27 

also,    Catlin    v.    Bennatt,    47    Tex.  Tex.  Civ.  App.  487,  65  S.  W.  498; 

165;    Grimes    v.    Hobson,    46    Tex.  Walker  v.  Downs,  (Tex.  Civ.  App.) 

416;  Mainwarring  v.  Templeman,  51  61  S.  W.  725. 
Tex.  205 ;  Wallace  y,  Campbell,  54 


CHAP.   XXII.]  REGISTRATION   OF  DEEDS.  1171 

creditor  is  in  no  more  unfavorable  position  than  he  was  before 
he  obtained  his  hen.  This  reason  must  apply  with  equal  force 
when  he  takes  a  sheriff's  deed,  without  advancing  a  new  con- 
sideration. If,  however,  he  bids  for  the  property  more  than 
the  amount  of  his  judgment,  and  pays  the  excess  to  the  judg- 
ment debtor,  there  can  be  no  doubt,  as  we  understand  the  law, 
that  he  would  occupy  the  position  of  any  other  purchaser.  In 
such  a  case,  he  does  advance  a  new  consideration  on  the  faith 
of  the  purchase  and  should  accordingly  be  regarded  as  a  bona 
fide  purchaser.  Nor  would  it,  in  our  opinion,  make  any  dif- 
ference how  small  the  amount  was  over  the  judgment.  If  the 
judgment  debtor  received  any  new  consideration  whatever 
from  the  judgment  creditor,  this  would  make  the  latter  a  pur- 
chaser for  value,  and  entitle  him  to  all  the  rights  and  benefit* 
due  to  a  person  holding  that  relation. 

§  643.  Mortgage  for  purchase  money. — If  a  mortgage 
is  executed  at  the  time  the  land  is  purchased,  to  secure  the 
payment  of  the  consideration  for  which  the  land  was  sold, 
such  mortgage  is  entitled  to  preference  over  judgments  and 
other  debts  of  the  mortgagor,  so  far  as  the  land  thus  pur- 
chased and  mortgaged  is  concerned.^  But  in  order  that  a 
mortgage  may  be  entitled  to  this  character  of  a  purchase 
money  mortgage  it  must  be  executed  at  the  same  time  as  the 
deed  from  the  grantor.  The  preference  is  lost  by  allowing 
an  interval  of  time  to  elapse  between  the  two  transactions, 
during  which  the  interest  of  the  purchaser  is  subject  to  be 
levied  upon.'     A  mortgage  of  this  character  is  good  against 

6  Clark  V.  Munroc,  14  Mass.  351;  644;  Stewart  v.  Smith,  36  Minn.  82, 

Bunting   v.    Jones,    78    N.    C.    242 ;  1  Am.  St.  Rep.  651 ;  Bolles  v.  Carli, 

Phelps   V.   Fockler,   61    Iowa,   340;  12  Minn.  113;  Grant  v.  Dodge,  43 

Laidley  v.  Aiken,  80  Iowa,  112,  20  Me.   489;   Guy  v.    Carriere,   5   Cal. 

Am.   St.  Rep.  408;   Curtis  v.  Root,  511. 

20  III.  53;  Roane  v.  Baker,  120  111.  '  Heuisler    v.     Nickum,    38     Md. 

308;  Cowardin  v.  Anderson,  78  Va.  270;  Ahern  v.  White,  39  Md.  409; 

88;   Clark  v.  Butler,  32  N.  J.  Eq.  Foster's  Appeal,  3  Pa.  St.  79. 


1172 


THE  LAW  OF  DEEDS. 


[chap.  XXII. 


the  v/ife  of  the  mortgagor,  even  if  she  is  not  a  party  to  it.' 
"Courts,  indeed,  have  gone  so  far  as  to  hold  that  where  a  pur- 
chaser takes  a  deed  of  land,  and  at  the  same  time  executes  a 
mortgage  to  a  third  person  to  secure  money  used  in  payment 
for  the  land,  the  mortgage  and  deed  may  be  regarded  as  con- 
stituting one  transaction,  and  the  mortgage  will  be  para- 
mount to  the  dower  right  of  the  wife  of  the  purchaser,  al- 
though she  does  not  sign  the  mortgage.'"  As  the  instru- 
ments derive  their  effect  from  delivery,  it  is  sufficient  if  they 
are  delivered  at  the  same  time,  and  the  fact  that  they  were 
executed  at  different  times  is  immaterial.^  A  mortgage  for 
purchase  money  is  preferred  to  a  liomestead  exemption.^  If 
the  conveyance  reserves  an  annual  rent,  and  contains  a  con- 
dition that  the  grantor  may  enter  and  take  possession  for  fail- 
ure to  pay  the  rent  reserved,  the  transaction  partakes  so  much 
of  the  character  of  a  mortgage  for  the  purchase  money  that 
the  grantee  has  no  power  to  create  an  encumbrance  superior 


8  Thomas  v.  Hanson,  44  Iowa, 
651;  Walters  v.  Walters,  IZ  Ind. 
425;  Birnie  v.  Main,  29  Ark.  591; 
Hinds  V.  Ballou,  44  N.  H.  619; 
Stow  V.  TiflFt,  15  Johns.  458,  8  Am. 
Dec.  266;  Thompson  v.  Lyman,  28 
Wis.  266;  Mills  v.  Van  Voorhies, 
20  N.  Y.  412. 

9  Thomas  v.  Hanson,  44  Iowa, 
651,  653,  per  Adams,  J.,  citing  Clark 
V.  Munroe,  14  Mass.  351 ;  Hazle- 
ton  V.  Lesure,  9  Allen,  24;  King 
V.  Stetson,  11  Allen,  407.  See,  also, 
Eslava  v.  Lepetre,  21  Ala.  504,  56 
Am.  Dec.  266;  Bell  v.  The  Mayor 
of  New  York,  10  Paige,  49;  Mc- 
Gowan  v.  Smith,  44  Barb.  232; 
Billingsley  v.  Neblett,  56  Miss.  537 ; 
Jones  V.  Parker,  51  Wis.  218;  Kais- 
er V.  Lembeck,  55  Iowa,  244,  7  N. 
W.  Rep.  519;  Kettle  v.  Van  Dyck, 
1  Sand.  Ch.  76;  Young  v.  Tarbell, 
Zl  Me.  509. 


1  Banning  v.  Edes,  6  Minn.  402; 
Mayburry  v.  Brien,  15  Peters,  21, 
10  L.  ed.  646;  Cake's  Appeal,  23 
Pa.  St.  186,  62  Am.  Dec.  328 ;  Sum- 
mers V.  Darne,  31  Gratt.  791;  Stew- 
art V.  Smith,  36  Minn.  82. 

2  Kimble  v.  Esworthy,  6  Bradw. 
(111.)  517;  Middlebrooks  v.  War- 
ren, 59  Ga.  230;  Guinn  v.  Spurgin, 
1  Lea  (Tenn.)  228.  See  Carr  v. 
Caldwell,  10  Cal.  380,  70  Am.  Dec. 
740;  Allen  v.  Hawley,  66  111.  164; 
New  England  Jewelry  Co.  v.  Mer- 
riam,  2  Allen,  390;  Lane  v.  Collier, 
46  Ga.  580;  Amphlett  v.  Hibbard, 
29  Mich.  298;  Magee  v.  Magee,  51 
111.  500,  99  Am.  Dec.  571;  Nichols 
V.  Overacker,  16  Kan.  54.  And  see, 
also,  Greeno  v.  Barnard,  18  Kan. 
518;  Pratt  v.  Topeka  Bank,  12  Kan. 
570;  Hopper  v.  Parkinson,  5  Nev. 
233;  Hand  v.  Savannah  etc.  R.  R. 
12  S.  C.  314. 


CHAP.    XXII.]  REGISTRATION   OF   DEEDS.  1173 

to  the  right  of  the  grantor.'  But  a  mortgage  for  purchase 
money  to  have  this  preference  must  be  taken  immediately.  It 
is  subordinate  to  a  prior  mortgage  taken  for  value  and  with- 
out notice.*  A  mortgage  of  this  character  has  precedence 
over  a  lien  for  labor  and  materials  supplied  to  the  purchaser.^ 
While  such  a  mortgage  bars  a  wife  of  her  right  of  dower,^ 
yet  she  is  not  barred  by  the  fact  that  the  mortgage  recites  it 
it  to  be  a  mortgage  for  the  purchase  money,  when,  by  reason 
of  the  lapse  of  time  between  the  deed  and  the  mortgage,  it 
is  not.'  But  where  the  mortgage  for  the  purchase  money  is 
not  recorded,  a  deed  from  the  grantor  to  a  third  party  will 
not  prevail  against  a  subsequent  recorded  deed  from  the 
grantee  to  a  party  having  no  notice  of  the  mortgage  or  the 
grantor's  second  deed.' 

§  643a.  Third  person  advancing  money. — A  mortgage 
made  to  a  third  person  who  advances  the  money  is  treated  as 
a  purchase  money  mortgage,  and  the  holder  of  it  is  entitled  to 
the  same  rights  as  if  the  mortgage  had  been  executed  to  the 
grantor.'     Where  a  son  negotiates  with  his  father  for  the  pur- 

8  Stephenson  v.  Haines,   16  Ohio  L.  362 ;  Macintosh  v.  Thurston,  25 

St.  478.  N.  J.  Eq.  369;  Virgin  v.  Brubaker, 

*  Houston    V.    Houston,    6!^    Ind.  4  Nev.  31.    See,  also,  Rees  v.  Lud- 

276.  Priority  is  given  to  a  mortgage  ington,    13   Wis.   276,  80  Am.   Dec. 

for  purchase  money  recorded  with  741.      But    see   Tanner    v.    Bell,   61 

the  deed  of  purchase  over  a  mort-  Ga.  584. 

gage  made  by  the  purchaser,  be-  ^  Jones  v.  Parker,  51  Wis.  218; 
fore  the  completion  of  the  purchase  George  v.  Cooper,  15  W.  Va.  666. 
to  secure  a  loan  to  be  used  for  '  Tibbetts  v.  Langley  Mfg.  Co., 
making  the  cash  payment,  even  if  12  S.  C.  465.  A  deed  of  trust  is 
this  prior  mortgage  was  recorded  considered  to  be  a  mortgage :  Sum- 
before  the  purchase  money  mort-  mers  v.  Darne,  31  Gratt.  791 ;  Cur- 
gage  to  the  grantor  was  recorded :  tis  v.  Root,  20  111.  53 ;  Austin  v. 
Turk  v.  Funk,  68  Mo.  18,  30  Am.  Underwood,  37  111.  438,  87  Am. 
Rep.  771;  City  Nat.  Bank's  Appeal,  Dec.  254. 
91    Pa.    St.    163.  8  Thompson     v.     Westbrook,     56 

6  Guy    v,    Carriere,    5    Cal.    511;  Tex.  265. 

Strong  V.   Van   Deursen,   23   N.   J.  9  Pearl    v.    Hervey,   70    Mo.    160; 

Eq.  369;  Lamb  v.  Cannon,  38  N.  J.  Kaiser  v.  Lembeck,  55  Iowa,  244; 


1174  THE  LAW  OF  DEEDS.  [CHAP.  XXII. 

chase  of  the  latter's  land,  and  with  a  third  person  for  a  loan 
of  money  to  enable  him  to  make  the  purchase,  and  the  father 
executes  a  deed  to  the  son  receiving  the  money  from  the  stran- 
ger to  whom  the  son  and  wife  execute  a  mortgage  to  secure  re- 
payment of  the  purchase  money,  all  the  acts  being  contempo- 
raneous and  parts  of  one  transaction,  the  mortgage  must  be 
considered  in  equity  as  a  purchase  money  mortgage,  and,  even 
if  it  had  not  been  signed  by  the  son's  wife,  will  not  be  subject 
to  a  homestead  right  or  right  of  dower.*  When  the  money 
is  thus  advanced  by  a  third  person,  who  takes  a  mortgage  to 
secure  his  advances  as  a  part  of  the  same  transaction,  the  lien 
of  the  mortgage  is  superior  to  that  of  a  prior  judgment  ob- 
tained against  the  purchaser.^  A  married  man  bought  a  lot 
of  land,  and  to  secure  the  payment  of  the  purchase  money 
executed  a  mortgage  to  the  vendor,  who  subsequently  obtained 
a  decree  of  foreclosure.  Immediately  before  the  sale  was  to 
occur  the  vendee  borrowed  of  a  third  person  sufficient  money 
to  discharge  the  mortgage  and  decree,  and  agreed  to  give  him 
a  mortgage  on  the  lot  to  secure  the  money  advanced.  The 
latter  paid  off  the  decree,  and  the  vendor's  mortgage  was  sat- 
isfied; and  shortly  afterward  the  vendee  complied  with  this 
agreement  by  executing  to  him  a  mortgage,  but  the  vendee's 
wife  did  not  join  in  the  mortgage,  although,  at  the  time  such 
third  person  advanced  the  money,  the  premises  were  occupied 

Laidley  v.  Aikin,  80  Iowa,  112,  20  Butler  v.  Thornburg,  131  Ind.  277, 

Am.  St.  Rep.  408;  Mize  v.  Barnes,  31   Am.    St.    Rep.   433;    Stewart   v. 

78  Ky.  506;  Dillon  v.  Byrne,  5  Cal.  Smith,  36  Minn.  82,  1  Am.  St.  Rep. 

455;   Lassen  v.   Vance,  8  Cal.  271,  651;  Bradley  v.  Bryan,  43  N.  J.  Eq. 

68  Am.  Dec.  322;  Carr  v.  Caldwell,  396;  Cowardin  v.  Anderson,  78  Va. 

10  Cal.  380,  70  Am.  Dec.  740;  Cur-  88;  Rogers  v.  Tucker,  94  Mo.  346. 
tis   V.   Root,   20   111.   53;    Jones    v.  i  Jones  v.  Parker,  51  Wis.  218. 

Parker,    51    Wis.    218;    Carey    v.  2  Laidley  v.  Aiken,  80  Iowa,  112, 

Boyle,  53  Wis.  574 ;  Jackson  v.  Aus-  20  Am.    St.   Rep.   408 ;   Jackson   v. 

tin,    15    Johns.    477;    Dwenger    v.  Austin,    15  Johns.  477;    Stewart  v. 

Branigan,   95   Ind.   221 ;    Adams   v.  Smith,  36  Minn.  82,  1  Am.  St.  Rep. 

Hill,  29  N.  H.  202;  Moring  v.  Dick-  651. 
enson,   85    N.    C.   466.      See,    also, 


CHAP.   XXII.]  REGISTRATION   OF  DEEDS.  1175 

by  the  vendee  and  his  wife  as  a  homestead.  Not  long  after- 
ward the  vendee  died,  and  the  wife  claimed  the  property  as  a 
homestead,  but  the  court  held  the  mortgage  of  the  person 
advancing  the  money  took  the  place  of  the  vendor's  mortgage, 
and  consequently  became  a  valid  lien  on  the  premises  to  the 
extent  that  the  money  was  applied  to  the  satisfaction  of  the 
original  vendor's  mortgage.^ 

§  643b.     Execution  at  same  time  not  essential. — It  is 

not  necessary  that  the  deed  and  mortgage  should  be  executed 
at  the  same  time,  or  even  on  the  same  day,  that  they  may  be 
considerd  as  contemporaneous,  if  they  form  parts  of  one  con- 
tinuous transaction  and  are  so  intended.  For  the  purpose  of 
effectuating  the  intent  of  the  parties  the  two  instruments  will 
be  treated  as  contemporaneous.*  Thus,  where  a  mortgage 
was  made  three  days  later  than  the  deed,  it  was  considered, 
for  the  purpose  of  enabling  the  person  advancing  the  money 
to  occupy  the  position  of  a  purchase  money  mortgagor,  to 
have  been  contemporaneous  with  the  deed.®     A  purchaser  exe- 

•  Carr  v.  Caldwell,  10  CaL  380,  mere  transitory  seisin  of  the  mort- 
70  Am.  Dec.  740.  gagor,     rather     than    the     superior 

*  Stewart  v.  Smith,  36  Minn.  82,  equity  which  the  mortgagee  has  to 
1  Am.  St  Rep.  651.  See,  also,  Ban-  be  paid  the  purchase  money  of  the 
ning  V.  Edes,  6  Minn.  402;  Sum-  land  before  it  shall  be  subjected  to 
mers  v.  Darne,  31  Gratt.  791.  other  claims  against  the  purchaser. 

*•  Stewart  v.  Smith,  36  Minn.  82,  But  it  is  evident,  both  upon  princi- 

1  Am.  SL  Rep.  651.     Said  Mr.  Jus-  pie    and    authority,    that    what    is 

tice     Mitchell,     speaking     for     the  meant  by  this  statement  of  the  rule 

court :       "The     rule,     as     generally  is  not  that  the  two  acts— the  exccu- 

stated  in  the  books,  is,  that  to  give  tion  of  the  deed  of  purchase,  and 

a    purchase    money    mortgage    this  the    execution    of    the    mortgage — 

precedence,  it  must  have  been  exe-  should     be     literally     simultaneous. 

cuted     simultaneously,     or     at     the  This  would  be  almost  an  impossi- 

same  time,  with   the  deed   of   pur-  bility.      Some    lapse   of    time   must 

chase.     Some  ground  for  a  narrow  necessarily    intervene    between    the 

and  literal  construction  of  this  Ian-  two   acts.     An  examination  of  the 

guage  is  furnished  by  the  fact  that  cases   will   show   that  the   real  test 

the  reason  usually  assigned  for  the  is  not  whether  the  deed  and  mort- 

doctrine  is  the  technical  one  of  the  gage  were  in  fact  executed  at  the 


1176  •  THE  LAW  OF  DEEDS.  [CHAP.  XXII. 

cuted  a  note  in  part  payment  of  the  purchase  price,  which  was 
afterward  transferred  to  another,  who  shortly  after  the  trans- 
fer, loaned  the  purchaser  an  additional  sum,  took  a  note  and 
a  new  mortgage  on  the  same  lot,  and  the  purchaser's  interest 
in  another  lot,  and  caused  the  prior  mortgage  to  be  canceled 
and  satisfied  of  record.  When  suit  was  brought  to  foreclose 
the  mortgage,  the  purchaser's  wife  intervened  and  claimed  the 
premises  as  a  homestead,  but  the  court  decided  that  the  land 
was  liable  for  the  remainder  of  the  purchase  money  regardless 
of  the  purpose  to  which  it  might  be  devoted,  but  allowed  the 
morto-ae-ee  to  make  out  of  the  lot  claimed  as  a  homestead  only 
the  actual  amount  of  the  purchase  money  and  interest  remain- 
ing due,  holding  that  for  the  excess  over  such  purchase  money, 
he  must  proceed  on  his  other  security,  or  against  the  party, 
but  not  against  the  homestead.®  Where  a  man  who  is  married 
occupies  property  as  a  tenant,  and  concludes  to  purchase,  bor- 
rowing the  whole  of  the  purchase  money  from  another  and 
mortgaging  the  premises  to  him  to  secure  the  payment  of  the 

same  instant,  or  even  on  the  same  The  reason  is,  that  such  a  state  of 
day,  but  whether  they  were  parts  facts  would  show  that  both  acts 
of  one  continuous  transaction,  and  were  but  parts  of  the  same  contin- 
so  intended  to  be,  so  that  the  two  uous  transaction.  As  evidence  of 
should  be  given  contemporaneous  the  fact,  such  previous  agreement 
operation  in  order  to  promote  the  would  have  equal  probative  force, 
intent  of  the  parties :  1  Washburn  although  it  might  not  be  enforce- 
on  Real  Property,  *178;  Wheatley  able,  because  not  in  writing  and 
V.  Calhoun,  12  Leigh,  264,  37  Am.  within  the  statute  of  frauds.  Even 
Dec.  654;  Love  v.  Jones,  4  Watts,  if  such  agreement  while  executory 
465;  Snyder's  Appeal,  91  Pa.  St.  was  not  enforceable,  yet  when  once 
477.  Hence,  it  will  be  found  that  executed  by  the  execution  of  the 
in  some  of  the  cases  the  fact  that  mortgage,  it  becomes  as  effectual 
the  mortgage  was  executed  pursu-  as  if  originally  in  writing,  and  in 
ant  to  an  agreement  made  prior  to  equity  will  be  deemed  [if  the  rights 
the  execution  of  the  deed  of  pur-  of  no  innocent  purchaser  have  in- 
chase  has  been  the  controlling  con-  tervened]  as  taking  effect  by  re- 
sideration  upon  which  the  mort-  lation  as  of  the  date  of  the  agree- 
gage  has  been  given  precedence,  al-  ment." 

though  not  in  fact  until  some  time  ^  Dillon  v.  Byrne,  5  Cal.  455, 

after    the   execution    of    the    deed. 


CHAP.   XXII.]  REGISTRATION   OF  DEEDS.  1177 

sum  borrowed,  although  his  wife  may  not  sign  the  mortgage, 
still  the  homestead  is  subject  to  the  mortgage,  as  the  deed 
and  mortgage  are  to  be  considered  as  parts  of  the  same  trans- 
action."^ 

§  644.  Administrator's  sale  and  prior  unrecorded 
conveyance. — An  unrecorded  deed  or  mortgage  binds  the 
mortgagor  and  his  administrator.^  The  administrator  is  a 
trustee,  and  succeeds  to  such  rights  as  the  intestate  possessed, 
and  no  other.  An  interesting  case  in  which  this  principle  was 
applied  occurred  in  Indiana.  An  intestate  executed  a  mort- 
gage on  certain  real  estate  to  secure  the  purchase  money.  This 
mortgage  was  not  recorded,  and  the  administrator,  having  no 
knowledge  of  its  existence,  sold  the  land  under  an  order  of 
court,  for  the  purpose  of  producing  assets  to  meet  claims 
against  the  estate,  the  estate  being  insolvent.  The  purchaser 
at  this  sale  was  also  ignorant  of  this  mortgage,  paid  the  whole 
of  the  purchase  money,  which  was  a  full  and  fair  price  for 
the  property,  and  took  a  prof)er  conveyance.  The  question 
presented  to  the  court  for  decision  was  whether  the  mortgagee, 
whose  mortgage  was  not  recorded,  was  entitled  to  payment  out 
of  the  proceeds  of  the  real  estate  in  preference  to  general  cred- 
itors. The  court  held  that  the  proceeds  of  the  sale  were  sub- 
ject to  the  mortgagee's  lien,  and  that  he  was  entitled  to  such 
preference.*  The  court  discussed  the  question  in  its  various 
aspects  at  considerable  length.  "It  is  only  subsequent  pur- 
chasers and  encumbrancers  in  good  faith  who  are  protected 
against  an  unrecorded  mortgage.  As  against  all  the  world 
besides,  the  registry  imparts  no  virtue  or  force  whatever  to 
the  instrument.  As  against  the  mortgagor,  and  the  estate 
while  it  remains  in  his  hands,  the  lien  is  as  perfect  without 

■'Lassen  v.  Vance,  8  Cal.  271.  heirs:  Willett  v.  Andrews,  106  La. 

8  Andrews  v.  Burns,  11  Ala.  691.  319,  30  So.  883. 

The    recording    of    a    deed    is    not  ^  Kirkpatrick  v.  Caldwell,  32  Ind. 

necessary   as   against  the   grantor's  299. 


1178  THE  LAW  OF  DEEDS.  [CHAP.  XXII. 

registry  as  it  is  with  it.    It  is  so,  also,  against  his  general  credi- 
tors, while  he  lives,  and  after  his  death.     No  change  was 
wrought  in  the  rights  of  the  mortgagee  with  respect  to  the 
other  creditors  by  his  decease.     The  administrator  was  his 
personal  representative,  and,  of  course,  took  no  better  right 
than  the  intestate  had.     Indeed,  he  took  no  estate  whatever  in 
the  lands  mortgaged,  but  a  duty  with  reference  thereto  fell 
upon  him  in  the  prformance  of  his  trust,  when  it  was  dis- 
covered that  its  sale  would  be  necessary  to  satisfy  indebtedness. 
This  was  to  file  a  petition  for  such  sale,  stating,  amongst  other 
things,  the  nature  of  the  intestate's  title.     This  implies  some 
diligence  to  ascertain  the  precise  fact.     Mere  ignorance  is  no 
excuse  for  him.     It  is  his  duty  to  know  the  truth;  and,  in- 
deed, he  is  unfaithful  to  his  trust  if  he  fails  to  inform  him- 
self of  the  entire  condition  of  the  whole  estate,  unless,  indeed, 
proper  diligence  fails  to  discover  it.     This  record  merely  dis- 
closes his  want  of  knowledge,  and  we  are  not  able  to  preceive 
why  that  circumstance  should  in  any  manner  influence  the 
decision  of  the  question  before  us.    Why  should  general  cred- 
itors derive  an  advantage  from  the  administrator's  ignorance 
of  a  fact?    They  have  not  acted  upon  it  to  their  injury.     If 
this  ignorance  was  the  result  of  his  negligence  in  making  in- 
quiry, and  shall  profit  one  creditor  at  the  expense  of  another, 
then  the  rights  of  creditors  in  the  fund  would  depend  much 
upon  the  care  and  attention  which  the  administrator  brings  to 
the  performance  of  his  duties ;  and  we  suppose  this  cannot  be. 
We  are  of  the  opinion  that  the  fact  that  the  administrator  did 
not  know  of  the  existence  of  the  mortgage  may  be  laid  out 
of  the  case  as  an  element  wholly  immaterial."     "It  certainly 
cannot  be  of  avail  to  the  general  creditors  that  they  had  no 
notice  of  the  mortgage.     They  are  not  in  a  position  to  avail 
themselves  of  such  want  of  notice,  not  being  purchasers  or 
encumbrancers."    To  the  argument  that,  if  the  mortgagor  had 
sold  the  land  to  an  innocent  purchaser  and  received  the  pur- 
chase money  during  his  lifetime,  the  mortgagee  would  not 
be  permitted  to  pursue  the  fund  in  his  hands,  but  must  have 


CHAP.    XXII.]  REGISTRATION   OF  DEEDS. 


1179 


rested  content  with  the  result  of  his  remedy  at  law  in  personam, 
and   hence,   as   a   logical   result,   could   not    follow   the   pro- 
ceeds in  the  hands  of  the  administrator,  the  court  replied: 
"The  argument  has  apparent   force,  and,   indeed,   would  be 
convincing  if  the  administrator  held  the  fund  as  the  mort- 
gagor would  hold  it  in  the  case  supposed.     In  the  absence  of 
fraud,  the  latter  would  hold  it  in  his  own  right,  but  the  ad- 
ministrator holds  it  as  a  mere  trustee,  to  be  disposed  of  under 
the  control  of  the  court,  in  the  payment  of  debts,  and  any 
surplus  by  distribution.     If  the  existenc  of  the  mortgage  had 
been  stated  in  the  petition  for  the  sale  of  the  land,  as  it  should 
have  been,  if  known,  the  court  would  have  ordered  the  sale 
subject  to  the  mortgage,  or  else  for  the  payment  thereof,  as 
might  have  been  adjudged  best.     In  the  latter  case,  the  ad- 
ministrator's duty  would  have  required  him  to  apply  the  pro- 
ceeds of  the  sale,  so  far  as  necessary,  to  the  payment  of  the 
mortgage  debt;  and  the  court  w^ould  have  enforced  this  duty. 
But  in  the  present  case  the  administrator,  in  applying  for  pow- 
er to  sell,  did  not  inform  the  court  of  the  mortgage,  and  con- 
sequently the  decree  made  no  provision  for  it,  and  the  pur- 
chaser, being  without  notice,  took  title  free  from  the  mort- 
gage, paying  a  corresponding  price.     The  money  is  in  the 
hands  of  the  administrator,  and  no  equities  have  intervened 
in  behalf  of  other  creditors.     There  is  no  reason,  therefore, 
why  the  court  should  not,  for  the  purposes  of  justice,   fol- 
low the  proceeds,  still  in  reach,  and  subject  them  to  the  lien 
which  originally  subsisted  against  the  land,  as  is  habitually 
done  in  other  cases  of  trusts,  where  the  trustee  has  either  will- 
fully or  ignorantly  violated  his  duty  by  disposing  of  the  trust 
estate. 


"  1 


§  645.     Compliance  with  preliminary  requirements. — 
To  entitle  a  deed  to  be  recorded,  all  preliminary  requirements 

1  Kirkpatrick  v.   Caldw  ell,   supra,      per  Frazer,  C.  J.    And  see  Stewart 
T.  Mathews,  19  Fla.  752. 


1180 


THE  LAW  OF  DEEDS. 


[chap.  XXll. 


must  be  complied  with.  It  must  be  properly  executed  and 
acknowledged.  If  the  deed  is  defective  in  any  of  these  par- 
ticulars, the  rule  is  firmly  established,  that  spreading  it  upon 
the  record  does  not  give  constructive  notice  of  its  contents.* 
"Without  an  acknowledgment,  the  recording  of  the  deed  could 
have  no  effect  as  to  notice,  for  the  statute  requires  the  deed  to 


2  Pope  V.  Henry,  24  Vt.  560; 
Stevens  v.  Hampton,  46  Mo.  408; 
Gait  V.  Dibrell,  10  Yerg.  146;  Lew- 
is V.  Baird,  3  McLean,  56;  McMinn 
V.  O'Connor,  27  Cal.  238;  HolUday 
V.  Cromwell,  26  Tex.  188 ;  Chouteau 
V.  Jones,  11  111.  300,  50  Am.  Dec. 
460;  Whitehead  v.  Foley,  28  Tex. 
268;  Walker  v.  Gilbert,  1  Freem. 
Ch.  85;  Blood  v.  Blood,  23  Pick. 
80;  Herndon  v.  Kimball,  7  Ga.  432, 
50  Am.  Dec.  406;  Isham  v.  Ben- 
nington Iron  Co.,  19  Vt.  230;  Suiter 
V.  Turner,  10  Iowa,  517;  Reynolds 
V.  Kingsbury,  15  Iowa,  238;  Bishop 
V.  Schneider,  46  Mo.  472,  2  Am. 
Rep.  533;  Brinton  v.  Seevers,  12 
Iowa,  389;  Mummy  v.  Johnson,  3 
Marsh.  A.  K.  220;  Schults  v. 
Moore,  1  McLean,  523;  Ely  v.  Wil- 
cox, 20  Wis.  523,  91  Am.  Dec.  436 ; 
Brown  v.  Lunt,  37  Me.  423;  Ed- 
wards V.  Brinker,  9  Dana,  69; 
Pringle  v.  Dunn,  Z7  Wis.  449,  19 
Am.  Rep.  772;  Johns  v.  Reardon, 
3  Md.  Ch.  57;  De  Witt  v.  Moulton, 
17  Me.  418;  Stevens  v.  Morse,  47 
N.  H.  532;  Harper  v.  Reno,  1 
Freem.  Ch.  323 ;  Graham  v.  Sam- 
uel, 1  Dana,  166;  Barney  v.  Little, 
15  Iowa,  527;  Cockey  v.  Milne,  16 
Md.  200;  White  v.  Denman,  1  Ohio 
St.  110;  Hodgson  v.  Butts,  3 
Cranch,  140,  2  L.  ed.  391 ;  Sumner 
V.  Rhodes,  14  Conn.  135 ;  Carter  v. 
Champion,  8  Conn.  549,  21  Am.  Dec. 
695;  Work  v.  Harper,  24  Miss.  517; 


Thomas  v.  Grand  etc.  Bank,  9 
Smedes  &  M.  201 ;  Strong  v.  Smith, 
3  McLean,  362;  Green  v.  Drinker, 
7  Watts  &  S.  440;  Parkist  v,  Al- 
exander, 1  Johns.  Ch.  394;  Heister 
V.  Fcrtner,  2  Binn.  40,  4  Am.  Dec. 
417.  See,  also,  Kerns  v.  Swope,  2 
Watts,  75;  Graves  v.  Graves,  6 
Gray,  391;  Shaw  v.  Poor,  6  Pick. 
88,  17  Am.  Dec.  347;  Harper  v. 
Barsh,  10  Rich.  Eq.  149;  Cheney 
v.  Watkins,  1  Har.  &  J.  527.  2  Am. 
Dec.  530;  Tillman  v.  Cowand,  12 
Smedes  &  M.  262;  Burnham  v. 
Chandler,  15  Tex.  441;  Bossard  v. 
White,  9  Rich.  Eq.  483;  Brydon  v. 
Campbell,  40  Md.  331 ;  Bass  v.  Es- 
till, 50  Miss.  300 ;  Fleming  v.  Ervin, 
6  W.  Va.  215;  Dussaume  v.  Bur- 
nett, 5  Iowa,  95;  McKean  v.  Mit- 
chell, 35  Pa.  St.  269,  78  Am.  Dec. 
335;  Galpin  v.  Abbott,  6  Mich.  17. 
A  deed  is  not  duly  recorded  un- 
less the  record  shows  that  the  cer- 
tificate of  proof  or  acknowledg- 
ment is  sufficient :  Merriman  v. 
Blalack,  (Tex.  Civ.  App.)  121  S.  W. 
552.  The  omission  of  the  words 
"before  me"  by  the  recorder  of 
deeds  in  his  transcription  of  a  cer- 
tificate of  acknowledgment  at- 
tached to  a  deed,  does  not  make 
the  record  of  the  deed  ineffectual 
to  give  constructive  notice  to  third 
persons  of  the  transfer:  Sis  v. 
Boarman,  11  App.  Cas.  (D.  C) 
116. 


CHAP.    XXII.] 


REGISTRATION    OF   DEEDS. 


1181 


be  executed  and  acknowldged  and  then  recorded,  to  operate 

as  constructive  notice And  if  this  acknowledgment 

be  defective  in  not  showing  that  the  person  who  took  the  ac- 
knowledgment had  a  right  to  take  it,  the  act  does  not  appear 
to  be  official,  and  is  not  a  compliance  with  the  statute.  And 
where  a  purchaser  is  to  be  charged  with  constructive  notice 
from  the  mere  registration  of  a  deed,  all  the  substantial  requis- 
ites of  the  law  should  be  complied  with.  As  well  might  it 
be  contended  that  a  recorded  deed  w'ithout  an  acknowledg- 
ment would  be  notice,  as  that  it  would  be  notice  with  a  defec- 
tive  acknowledgment." '     An   instrument   is   not   entitled   to 


•  Schults  V.  Moore,  1  McLean, 
520,  527 ;  Wood  v.  Cochrane,  39  Vt 
544;  Jones  v.  Berkshire,  15  Iowa, 
248,  83  Am.  Dec.  412;  Todd  v.  Out- 
law, 79  N.  C.  235.  And  see  Mc- 
Minn  v.  O'Connor,  27  Cal.  238.  Sec 
Masterson  v.  Todd,  6  Tex.  Civ. 
App.  131,  24  S.  W.  682.  Where  an 
agreement  is  made  between  a  land- 
owner and  a  water  company,  cre- 
ating a  lien  on  land  for  water  sup- 
plied, the  acknowledgment  of  the 
agreement  by  the  landowner  enti- 
tles it  to  record,  and  its  registration 
imparts  notice  to  subsequent  pur- 
chasers under  him  of  the  lien :  Fres- 
no Canal  etc.  Co.  v.  Rowell,  80  Cal. 
114,  13  Am.  St.  Rep.  112.  And 
see  Spect  v.  Gregg,  51  Cal.  198. 
Where  it  is  necessary  that  a  con- 
veyance should  be  sealed,  an  instru- 
ment to  which  a  seal  is  not  affixed 
is  not  entitled  to  be  recorded :  Ra- 
couillat  V.  Sansevain,  32  Cal.  376; 
Racouillat  v.  Rene,  32  Cal.  450.  In 
the  latter  case,  Sawyer,  J.,  said : 
"The  instrument  of  April  13,  1851, 
is  not  under  seal,  and  whether 
properly  acknowledged  in  other  re- 
spects  or  not,  was  not  entitled   to 


record  under  the  act  concerning 
conveyances  as  it  stood  at  the  date 
of  the  instrument.  The  record, 
therefore,  did  not  impart  construct- 
ive notice  of  its  contents  to  any- 
body; and  unless  Rene  had  actual 
notice  of  the  contract  embraced  in 
the  instrument,  he  was  not  affected 
by  it."  But  see  Wallace  v.  Moody, 
26  Cal.  387.  If  the  instrument, 
however,  was  sealed  in  a  proper 
manner  when  it  was  executed,  it  is 
not  invalidated  by  a  subsequent  loss 
of  the  seal,  unless  the  seal  was  re- 
moved before  it  was  presented  for 
registration,  and  the  party  who  at- 
tempts to  invalidate  the  instrument 
has  the  burden  of  proof :  Van  Ris- 
wick  v.  Goodhue,  50  Md.  57.  If 
the  statute  requires  a  conveyance 
to  be  attested  by  two  witnesses  to 
entitle  it  to  registration,  and  a  con- 
veyance is  thus  witnessed,  but  is 
recorded  by  mistake  without  copy- 
ing the  attestation,  the  record,  as 
it  is,  is  not  constructive  notice; 
Pringle  v.  Dunn,  37  Wis.  449,  19 
Am.  Rep.  772;  Frostburg  v.  Brace, 
51  Md.  508;  Potter  v.  Strausky,  48 
Wis.  235;  Gardner  v.  Moore,  51  Ga, 


1182 


THE  LAW  OF  DEEDS. 


[chap,  XXII. 


record  when  it  purports  to  have  been  signed  And  acknowledged 
by  a  firm,  and  in  a  firm  name.  It  must  appeal"  by  which  mem- 
ber of  the  firm  this  was  done.*  Where  a  deed  of  a  corpora- 
tion is  duly  sealed,  and  is  in  all  respects  properly  recorded, 
except  that  the  record  fails  to  show  a  copy  of  the  seal,  or  any 
device  representing  it,  such  record  is  valid  and  sufficient  to 
operate  as  notice,  if  it  represents  on  its  face,  in  any  other  way, 
that  the  deed  was  in  fact  sealed.* 

§  646.  Illustrations — Attesting  witnesses. — This  prin- 
ciple is  most  often  applied  in  the  case  of  defective  acknowledg- 
ments. But  all  other  requirements  of  the  statute  antecedent  to 
registration  must  be  complied  with  to  make  the  record  notice. 
If,  for  instance,  a  mortgage  with  only  one  subscribing  witness 
is,  by  the  provisions  of  a  statute,  void  as  a  legal  mortgage,  the 
registration  of  such  an  instrument  will  not  raise  the  presump- 
tion of  notice  to  a  purchaser  from  the  mortgagor.'     In  Con- 


268;  Hastings  v.  Cutler,  24  N.  H. 
481;  Morrill  v.  Morrill,  60  Vt.  74, 
6  Am.  St.  Rep.  93;  Carler  v.  Cam- 
pion, 8  Conn.  549,  21  Am.  Dec.  695. 
A  record  of  a  mortgage  is  notice  to 
subsequent  purchasers  in  favor  of 
a  person  who  holds  an  assignment 
of  the  mortgage  duly  recorded,  if 
the  acknowledgment  is  in  proper 
form  and  the  defect  is  not  appar- 
ent, as  where  the  officer  who  took 
it  acted  out  of  his  jurisdiction: 
Heilbrun  v.  Hammond,  13  Hun, 
474.  "The  authentication  of  the 
notary's  seal  is  just  as  essential  to 
a  perfect  acknowledgment  as  is  his 
signature;  and,  w'hen  the  deed  lacks 
this,  it  cannot  be  properly  record- 
ed": Koch  V.  West,  118  la.  468,  92 
N.  W.  663,  96  Am.  St.  Rep.  394; 
Pitts  V.  Seavey,  88  la.  336,  55  N.  W. 
480;  Kreuger  v.  Walktr,  80  la.  7ZZ, 


45  N.  \V.  871;  Riles  v.  Atlce,  90 
Wis.  72,  62  N.  W.  490. 

<  Sloan  V.  Owens  etc.  Machine 
Co.,  70  Mo.  206.  The  seal  of  the 
officer  taking  the  acknowledgment 
is  essential  to  its  due  registration : 
Masterson  v.  Todd,  6  Tex.  Civ. 
App.   131. 

*  Heath  v.  Big  Falls  Cotton  Mills, 
115  N.  C.  202. 

6  Harper  v.  Barsh,  10  Rich.  Eq. 
149;  Thompson  v.  Morgan.  6  Minn. 
292;  White  v.  Dcnman,  16  Ohio,  59; 
Van  Thorniley  v.  Peters,  26  Ohio, 
St.  471;  Hodgson  v.  Butts,  1 
Cranch,  C.  C.  488;  New  York  Life 
Ins.  etc.  Co.  v.  Staats.  21  Barb.  570; 
Frostburg  Mut.  Building  Assn.  v. 
Brace,  51  Md.  508;  Gardner  v. 
Moore,  51  Ga.  268;  Van  Riswick 
V.  Goodhue,  50  Md.  57:  Ross  v. 
Worthington,  11  Minn.  438,  88  Am. 


CHAT.    XXil.] 


REGISTRATION   OF   DEEDS. 


1183 


necticut  the  same  question  was  similarly  decided.  The  court 
carefully  considered  the  question,  and  held  that  the  registra- 
tion of  a  deed,  defective  in  having  but  one  legal  witness,  was 
not  constructive  notice  of  such  conveyance.  The  considera- 
tions by  which  the  court  was  governed  in  arriving  at  this  con- 
clusion are  fully  stated  in  the  portion  of  the  opinion  quoted  in 
the  note.' 


Dec.  95;  Van  Thorniley  v.  Peters, 
26  Ohio  St.  471 ;  White  v.  Magara- 
han,  87  Ga.  217;  Potter  v.  Strans- 
ky,  48  Wis.  235;  Morrill  v.  Mor- 
rill, 53  Vt.  74,  38  Am.  Rep.  659. 
See,  also.  State  v.  Cowhick,  9  Wyo. 
93,  60  Pac.  265. 

'  Carter  v.  Champion,  8  Conn. 
549,  21  Am.  Dec.  695.  Said  Wil- 
liams, J.:  "The  question  then 
comes  to  this:  Is  the  registering 
of  a  defective  deed  constructive  no- 
tice so  as  to  bind  third  persons? 
Here  it  is  to  be  remarked,  that  the 
registering  of  a  deed  is  a  legisla- 
tive regulation,  founded  indeed  up- 
on the  best  principles  of  policy  for 
the  security  of  titles,  'but  still  de- 
pending for  its  effect  upon  the  true 
construction  of  the  statute.  Our 
statute  has  prescribed  the  manner 
in  which  deeds  of  land  shall  be  exe- 
cuted;  that  they  shall  be  attested 
by  two  witnesses,  acknowledged 
before  a  magistrate,  and,  to  make 
them  effectual  against  third  persons, 
shall  be  recorded.  The  deed  to  be 
recorded,  then,  is  the  deed  spoken 
of  in  the  statute ;  that  is,  a  deed  ex- 
ecuted according  to  the  statute,  not 
the  instrui.icnt  merely  which  the 
common  law  would  denominate  a 
deed,  but  the  instrument  which  has 
the  statute  requisites  to  give  it  va- 
lidity as  a  deed ;  because  no  other 
instruments      are      recognized      as 


grants  and  deeds  of  'houses  and 
lands,'  the  statute  being  express 
that  no  grant  or  deed  of  land  shall 
be  valid  unless  written,  subscribed, 
witnessed,  and  acknowledged,  as 
aforesaid.  In  one  case  only,  a  pro- 
vision is  made  for  a  deed  not  com- 
pleted according  to  the  requisites 
of  the  statute;  and  that  is  where 
the  grantor  refuses  to  make  an  ac- 
knowledgment. Then,  in  conform- 
ity to  a  similar  provision  in  the 
civil  law,  the  grantee  may  leave  a 
copy  of  his  deed,  with  a  claim  of 
title,  with  the  register,  which  se- 
cures his  title  until  a  legal  trial 
has  been  had.  This  exception 
shows  that  in  all  other  cases,  the 
deeds  completed  in  the  manner  re- 
quired by  statute  were  intended. 
That  this  is  not  a  deed  of  that  char- 
acter, the  whole  object  of  the  bill 
shows.  Is  the  recording,  then,  of 
such  an  instrument  of  any  effect? 
It  may,  indeed,  be  evidence  tend- 
ing to  prove  actual  notice ;  but  when 
(he  fact  of  actual  notice  is  negated, 
as  it  is  in  this  case,  can  the  record 
have  any  effect  upon  third  persons? 
Now,  if  this  be  a  rule  of  policy, 
adopted  by  the  legislature,  the 
court  is  not  to  extend  it  to  the  cases 
not  within  its  provisions,  and 
should  it  be  extended  to  the  case 
on  trial,  I  know  not  where  we  are 
to  stop,  or  what  line  to  draw.     If 


1184 


THE  LAW  OF  DEEDS. 


[chap.  XXII. 


§  646a.  Statutes  requiring  payment  of  taxes  prior  to 
registration.— In  some  States  it  is  provided  by  statute 
that  a  deed  cannot  be  recorded  unless  it  appears  by  a  proper 
certificate  that  the  taxes  charged  upon  the  land  have  been  paid, 
and  that  no  outstanding  tax  liens  or  titles  exist.  These  stat- 
utes have  been  attacked  as  being  unconstitutional,  for  attempt- 
ing to  interfere  with  the  acquisition  and  disposition  of  prop- 
erty, and  as  taking  property  v/ithout  due  process  of  law.  On 
this  question  there  is  a  divergence  of  opinion.  The  views  of 
one  court  are  thus  expressed :  "If  the  law  provided  a  means 
by  which  the  validity  of  the  tax  could  be  determined  before 
payment,  and  protected  the  party  meanwhile  by  providing  for 
a  temporary  receipt  of  the  deed,  or  otherwise,  it  probably  could 
be  sustained  as  constitutional,  even  though  it  should  put  the 


it  be  said  that  no  prudent  man  will 
stop  without  looking  at  the  record, 
that  may  be  said  as  truly  in  any 
other  case  as  in  this,  and  would  be 
equally  applicable  to  any  other  de- 
fect. But,  in  point  of  fact,  we 
know  purchases  are  often  made, 
where  from  the  distance  of  the 
record,  or  a  reliance  upon  the  in- 
tegrity of  the  grantor,  no  such  ex- 
amination is  made,  and  although 
this  is  no  excuse  for  a  party,  where 
his  case  is  within  the  act,  yet  it  may 
have  been  the  reason  why  the  legis- 
lature did  not  extend  the  provisions 
of  the  act  to  cases  of  this  kind. 
But  whatever  may  have  been  their 
reasons,  it  is  sufficient  for  me  that 
they  have  not  done  so." 

Where  an  instrument  is  required 
to  be  acknowledged  before  two  jus- 
tices of  the  peace,  the  record  of  an 
instrument  acknowledged  before 
one  justice  only  is  not  notice:  Duf- 
phey  V.  Frenaye,  5  Stewt.  &  P.  215. 
The  record  of  a  conveyance  of  a 


married  woman  is  not  notice  when 
the  acknowledgment  is  not  taken 
separate  and  apart  from  her  hus- 
band; Armstrong  v.  Ross,  20  N. 
J.  Eq.  109.  If  a  statute  requires 
that  a  certificate  of  the  official  char- 
acter of  the  officer  shall  accompany 
the  certificate  of  acknowledgment, 
this  must  be  done  to  make  the  rec- 
ord notice ;  but  the  certificate  may 
be  obtained  afterward,  and  if  prop- 
erly recorded  the  conveyance  is  con- 
sidered as  recorded  from  the  time 
at  which  this  certificate  is  filed : 
Reasoner  v.  Edmundson,  5  Ind. 
393 ;  Ely  v.  Wilcox,  20  Wis.  523,  91 
Am.  Dec.  436.  An  instrument  is 
not  entitled  to  registration  where 
the  certificate  of  acknowledgment 
designates  the  persons  who  make 
the  acknowledgment  as  "grantors 
of  the  within  indenture,"  omitting 
the  statement  that  they  are  known 
to  the  officer  to  be  the  persons 
who  executed  the  conveyance : 
Fryer  v.  Rockefeller,  63  N.  Y.  26a 


CHAP.   XXII.]  REGISTRATION   OF  DEEDS.  1185 

burden  of  proving  the  illegality  of  the  tax  upon  the  grantee, 
which,  however,  would  look  like  an  unnecessary  hardship,  when 
we  consider  the  power  possessed  by  the  State  to  enforce  the 
collection  of  its  revenues.  In  the  case  of  small  illegal  charges, 
the  act  in  question  practically  inaugurates  a  system  of  petty 
robbery  by  the  State,  for  the  costs  of  a  suit  to  recover  small 
sums  paid  would  prevent  parties  from  bringing  them.  It  is 
not  a  taking  by  due  process  of  law,  and  it  conflicts  in  a  meas- 
ure with  the  constitutional  provision  declaring  that  private 
property  shall  not  be  taken  for  public  purposes  without  just 
compensation  having  been  first  made  or  paid  into  court  for 
the  owner.  The  act  is  rather  judicial  than  legislative  in  char- 
acter. It,  in  effect,  declares  or  adjudges  all  taxes  shown  by 
the  records  as  a  charge  upon  real  estate  to  be  lawful,  or  it 
practically  authorizes  the  State  to  compel  payment  of  illegal 
demands.  The  constitutional  provision  declaring  that  no  per- 
son shall  be  deprived  of  life,  liberty,  or  property  without  due 
process  of  law,  is  not  limited  to  judicial  proceedings,  but  ex- 
tends to  every  proceeding  which  may  interfere  with  those 
rights,  whether  judicial,  administrative,  or  executive."  ' 

§  646b.     Such  satutes  held  to  be  constitutional. — On 

the  other  hand,  similar  statutes  have  been  held  to  be  consti- 
tutional on  the  ground  that  the  legislature  has  power  to  pro- 
vide for  the  manner  of  transferring  title  to  real  estate,  and  for 
the  registration  of  conveyances.  The  statute,  it  is  said,  may 
provide  what  instruments  shall  be  recorded,  and  how  they 
shall  be  executed  and  authenticated  so  as  to  entitle  them  to 
registration,  and  may  prescribe  any  other  rule,  regulation,  or 
condition  of  a  legislative  character  that  may  be  deemed  wise.^ 

«  State  ex  rel.  Baldwin  y.  Moore,  deed,   plat  of  any   townsite,   or   in- 

7  Wash.  173,  34  Pac.  Rep.  461.  strument  affecting  the  same,  or  any 

8  State  V.   Register  of   Deeds   of  other  conveyance  of  real  estate,  is 

Ramsey  Co.,  26  Minn.  521,  6  N.  W.  presented  to  the  county  auditor  for 

Rep.  337.     The  statute   referred  to  transfer,  he  shall  ascertain  from  the 

in  this  case  provided,   "When  any  books  and  records  in  his  office  if 

Deeds,  Vol.  II.— 75 


1186  THE  LAW  OF  DEEDS.  [CHAP.  XXII. 

In  Michigan,  where  a  statute  of  similar  import  exists,  it  was 
contended  tb.at  the  law  was  void,  because,  among  other  rea- 
sons, it  was  an  unwarrantable  infringement  of  property  rights. 
But  the  court,  per  Mr.  Justice  Grant,  said  it  thought  other- 
wise, and  continued :  "Mere  inconvenience,  however  great,  is 
not  sufficient  to  defeat  a  law.  That  is  a  consideration  for  the 
legislature,  and  not  for  the  court.  The  State  may  enact  string- 
ent measures  to  enforce  the  collection  of  the  public  revenue. 
The  law  provides  ample  remedies  for  the  property  owner  to 
contest  the  validity  of  the  tax  assessed  against  him.  He  may 
pay  the  tax  under  protest,  and  at  once  bring  suit  to  recover  it 
back.  He  may  appear  in  court  when  the  State  brings  suit  to 
foreclose  its  lien,  and  there  contest  its  validity.  The  register  of 
deeds  is  a  constitutional  officer,  but  the  conditions  under  which 
deeds  are  entitled  to  record  are  entirely  within  the  discretion  of 
the  legislature,  and  the  court  cannot  declare  them  void  because 
they  are  harsh.  Besides,  the  recording  of  the  deed  is  not 
necessary  to  pass  title.  The  registry  law  is  only  designed  to 
record  and  preserve  evidence  of  title.  Title  passes  upon  the 
execution  of  the  deed,  and  possession  under  it  is  notice  to  all 
of  the  rights  of  the  grantee  in  possession."  '' 

there  be  delinquent  taxes  due  upon  strument,  the  register  of  deeds  shall 
the  land  described  therein,  or  if  it  refuse  to  receive  or  record  the 
has  been  sold  for  taxes ;  and  if  same.  A  violation  of  the  provisions 
there  are  delinquent  taxes  due,  he  of  this  section  by  the  register  of 
shall  certify  to  the  same;  and  upon  deeds  shall  be  deemed  a  misde- 
the  payment  of  such  delinquent  or  meanor,  and,  upon  conviction  there- 
other  taxes  that  may  be  in  the  hands  of,  he  shall  be  punished  by  a  fine  of 
of  the  county  treasurer  for  collec-  not  less  than  one  hundred  dollars, 
tion,  he  shall  transfer  the  same,  and  nor  exceeding  one  thousand  dol- 
note  upon  every  deed  of  real  prop-  lars." 

erty    so    transferred,    over   his    of-  ^^  Van     Husan     v.     Heames,    96 

ficial     signature,     'taxes     paid    and  IMich.  504,  56  N.  W.  Rep.  22.    That 

transfer    entered';    or    if    the    land  payment  of  tax  must  be  made:  See 

described  has  been  sold  or  assigned  Martin    v.    Bates,   20   Ky.    L.    Rep. 

to   an   actual   purchaser   for   taxes,  1798,    50   S.    W.   38;    Chadwick   v. 

'paid  by  sale  of  land  described  with-  Gulf   etc.    Co.,   74   Fed.   616,   20   C. 

in';   and,   unless   such   statement  is  C.  A.  563;  State  v.  Weld,  66  Minn. 

made  upon  such  deed  or  other  in-  219,  68  N.  W.   1068. 


CHAP.   XXII.]  REGISTRATION   OF   DEEDS.  1187 

§  646c.  Comments. — We  have  gone  into  this  matter 
somewhat  fully  because  the  tendency  of  modern  legislation  is 
to  provide  methods  for  speedily  enforcing  the  payment  of 
taxes,  and  to  abolish,  so  far  as  statutes  can  effect  the  object, 
the  strict  rules  by  which  every  step  in  a  tax  proceeding  was 
formerly  measured.  Statutes  requiring  all  taxes  to  be  paid 
before  any  instrument  affecting  real  estate  shall  be  recorded, 
seem  to  supply  an  easy  and  efficacious  w^ay  of  forcing  the  pay- 
ment of  taxes.  Whatever  may  be  said  against  the  policy  of 
such  legislation  on  the  ground  that  it  compels  the  payment  of 
taxes,  although  they  may  be  invalid,  and  leaves  the  person  pay- 
ing to  the  doubtful  remedy  of  recovering  the  money  in  a  suit,* 
still,  in  our  mind,  these  are  not  just  objections  to  their  consti- 
tutionality. The  right  to  have  a  deed  recorded  is  purely  one 
of  statutory  origin.  For  the  purpose  of  providing  a  uniform 
and  convenient  method  of  giving  notice  of  claims  to  real  es- 
tate, where  actual  notice  does  not  exist,  the  State  has  provided 
a  means  for  registering  instruments  affecting  the  title  to  land. 
The  State  has  made  the  observance  of  certain  preliminary  re- 
quirements essential  to  the  complete  effect  of  the  record.  It 
prescribes  that  the  instrument  shall  be  acknowledged  and  in- 
what  manner.  It  may  prescribe  that  the  deed  shall  be  attested 
by  witnesses,  shall  be  subject  to  a  stamp  tax„  and  may  likewise 
prescribe  any  other  condition.  If  a  person  does  not  wish  to 
record  a  deed,  it  cannot  be  said  that  he  has  lost  any  constitu- 
tional privilege.  His  title  is  in  no  manner  affected.  The  title 
passes  by  the  execution  and  delivery  of  the  conveyance,  and 
if  he  assumes  possession,  his  rights  are  complete.  If  he  de- 
sires to  avail  himself  of  cei"tain  statutory  privileges,  by  which 
he  may  be  enabled  to  give  constructive  notice  of  his  interest, 
he  is  not  deprived  of  this  right,  but  must  exercise  it  on  com- 
pliance with  the  conditions  prescribed.  The  State  is  under  no 
obligation  to  provide  a  registry  law  at  all.  It  is  true  that  in 
every  State  in  the  Union  registry  laws  are  in  force,  but  this  is 

»See  §§  1349-1351,  post. 


^^gg  THE  LAW  OF  DEEDS.  [CHAP.  XXII. 

only  because  public  convenience  has  found  them  necessary. 
But  so  far  as  any  principle  of  constitutional  law  is  involved,  all 
these  laws  might  be  repealed.  If  they  can  be  absolutely  re- 
pealed, the  State  certainly  has  power  to  modify  them  by  de- 
termining what  instruments  shall  be  recorded,  and  by  declar- 
ing the  conditions  which  those  wishing  to  obtain  the  benefit  of 
the  registry  laws  must  observe.  If  one  of  these  conditions  be 
the  payment  of  all  taxes  antecedently  levied,  the  State,  in  our 
judgment,  has  power  to  prescribe  it,  and  such  a  provision,  on 
this  ground,  cannot  be  held  to  be  unconstitutional. 

§  647.  Attachment  at  time  of  acknowledgment.— A 
deed  was  acknowledged  before  a  register  of  deeds,  and  given 
to  him  to  be  recorded.  At  the  same  instant,  the  real  estate  de- 
scribed in  the  deed  was  attached  by  a  creditor  of  the  grantor. 
On  the  ground  that  the  deed  could  not  be  recorded  without  a 
certificate  of  the  acknowledgment,  and  it  must  have  required 
some  time  to  write  out  the  certificate,  the  attachment  was  held 
to  have  priority  over  the  deed.'^  The  court  said  :  "It  was  not 
in  a  state  to  be  considered  as  recorded  until  after  the  attach- 
ment was  made.  It  should  not  only  be  acknowledged,  but  the 
certificate  of  acknowledgment  should  be  completed  before  the 
delivery  of  the  register,  in  order  that  such  delivery  shall  con- 
stitute a  record.  The  certificate  of  acknowledgment  is  to  be 
a  part  of  the  record.  It  is  not  sufficient  that  the  register  is 
informed  of  the  acknowledgment;  the  object  of  recording  is 
to  give  notice  to  others.  Until  this  certificate  was  affixed,  the 
fact  that  the  deed  was  acknowledged,  and  in  the  register's 
hands,  could  not  be  noticed."  ' 

^Sigourney  v.    Larned,    10    Pick.  to   entitle   it   to  be   recorded,   must 

72.  be    acknowledged   by   such    grantor 

8  Sigourney     v.     Larned,     supra.  before  a  justice  of  the  peace.    Here 

Continuing,    the    court    said:      "By  Mr.  Ward  acted  in  the  double  ca- 

the  statute  (Stats.  1783,  c.  37,  §  4),  pacity  of  justice  of  the  peace  and 

a  deed,  to  have  effect  against  any  register    of    deeds.      He    could    not 

but  the  grantor  and  his  heirs,  and  consider  the  deed  as  in  his  official 


CHAP.    XXII.] 


REGISTRATION   OF  DEEDS. 


1189 


§  648.  Incapacity  to  take  acknowledgment. — Under 
the  statute  in  Missouri,  a  justice  of  the  peace  in  one  county- 
has  .\o  power  to  take  and  certify  the  acknowledgment  of  an 
instrument  conveying  lands  in  another  county.  If  an  acknowl- 
edment  is  taken  by  such  an  officer  under  these  conditions,  the 
acknowledgement  is  a  nullity,  and  the  deed  imparts  no  notice, 
although  it  may  have  been  recorded.'*  As  has  been  explained 
in  a  previous  section,  a  party  in  interest  is  disqualified  from 
taking  an  acknowledgment.  If,  however,  he  does  take  the  ac- 
knowledgment, and  the  instrument  shows  upon  its  face  the 
fact  that  he  is  interested,  its  registration  is  improper,  and  does 
not  impart  notice.  But  it  is  held  that,  when  the  instrument 
upon  its  face  does  not  disclose  this  fact,  it  is  the  duty  of  the 
register  to  receive  and  record  it.  Under  this  state  of  facts,  it 
will,  notwithstanding  there  may  be  some  hidden  defect,  oper- 
ate as  notice.' 


custody  in  the  latter  capacity,  until 
he  had  done  his  office  in  taking  the 
acknowledgment  of  the  grantor  in 
the  former,  which  must  necessarily 
take  some  time.  The  exact  time 
when  the  certificate  was  made  does 
not  distinctly  appear;  but  the  prob- 
ability is  that  it  was  not  done  till 
the  next  morning.  But  we  do  not 
decide  the  case  upon  that  ground; 
had  the  magistrate  proceeded  in- 
stantly to  write  the  certificate  of  ac- 
knowledgment, it  must  have  taken 
some  time  during  which  the  attach- 
ment took  effect.  Where,  in  a  con- 
troverted question  of  property,  the 
parties  stand  upon  equal  grounds  in 
point  of  equity,  the  legal  title  shall 
prevail;  and,  in  such  cases,  slight 
circumstances  are  sufficient  to  de- 
termine that  priority  upon  which 
we   think  the  preferable  legal  title 


depends.  Here  we  think  the  at- 
tachment was  prior  in  time,  and 
the  maxim,  prior  in  tempore,  po- 
tior in  jure,  must  decide  in  favor  of 
the  attaching  creditor." 

*  Bishop  V.  Schneider,  46  Mo.  472, 
2  Am.  Rep.  533. 

6  Stevens  v.  Hampton,  46  Miss. 
404.  A  court  of  equity  cannot  cor- 
rect a  mistake  in  a  certificate  of 
acknowledgment,  in  which  the  gran- 
tee instead  of  the  grantor  appeared 
to  be  the  person  who  made  the  ac- 
knowledgment, so  as  to  make  the 
record  of  the  deed  operative  from 
the  beginning.  It  is  impossible  in 
such  a  case  to  determine  whether 
the  mistake  was  committed  in 
writing  the  wrong  name  in  the  cer- 
tificate, or  in  taking  the  acknowl- 
edgment of  the  w-rong  person : 
Wood  V.  Cochrane,  39  Vt.  544. 


1190 


THE  LAW  OF  DEEDS. 


[chap.  XXIL 


§  649.  Omission  of  name  of  grantee.— A  conveyance, 
although  it  has  been  recorded,  in  xvhich  the  name  of  the 
grantee  is  omitted,  is  not  constructive  notice  to  subsequent  pur- 
chasers. As  an  ilhistration  of  this  rule,  a  case  may  be  cited 
where  the  name  of  the  mortgagee  was  left  blank  in  a  mori- 
gao-e  and  the  court  said,  with  reference  to  this  defect:  "The 
question  in  this  case  is  not  as  to  whether  there  might  be  an 
implied  authority  between  the  mortgagor  and  the  mortgagee  to 
fill  up  the  blank  and  make  the  instrument  complete.  The  ques- 
tion is,  as  to  the  effect  of  the  record  of  the  instrument  in  its 
imperfect  condition,  as  constructive  notice  to  a  subsequent  pur- 
chaser of  the  property.  It  has  beer,  frequently  held  that  slight 
omissions  in  the  acknowledgment  of  a  deed  destroy  the  effect 
of  the  record  as  constructive  notice.  A  fortiori,  it  seems  to  us, 
should  so  important  and  vital  an  omission  as  that  of  the  name 
of  the  grantee  have  that  effect."  ' 

§  650.  Description  of  land. — As  the  object  of  the 
registry  acts  is  to  enable  purchasers  to  obtain  accurate  infor- 
mation respecting  the  title  to  any  particular  piece  of  land,  it  is 


•  Disque  v.  Wright,  49  Iowa,  538, 
540,  per  Day,  J.  The  court  cited 
the  case  of  Chauncey  v.  Arnold, 
24  N.  Y,  330,  as  being  in  point. 
If  a  conveyance  is  recorded  with- 
out the  signature  of  the  grantor, 
though  it  may,  in  fact,  have  been 
signed,  and  the  omission  to  record 
it  an  error,  yet  the  record  in  such 
a  case  is  not  constructive  notice : 
Shepherd  v.  Burkhalter,  13  Ga.  443, 
58  Am.  Dec.  523.  If  the  trans- 
position of  the  name  of  the  par- 
ties is  apparent,  as  where  the  mort- 
gagee's name  is  by  mistake  writ- 
ten in  the  blank  for  the  mortgagor. 
and  the  latter's  name  in  the  blank 
for  the  mortgagee,  but  it  is  signed 
by  the  proper  party,  and  purports 


to  secure  a  debt  from  the  party  who 
signs  to  the  other,  and  is  properly 
acknowledged  by  the  person  who 
signs  it,  subsequent  purchasers 
from  the  mortgagor  by  its  record 
are  charged  with  notice  of  the  mis- 
take:  Beaver  v.  Slanker,  94  111. 
175.  But  see  Seibold  v.  Rogers, 
110  Ala,  438,  18  So.  312;  Town- 
send  etc.  Co.  V.  Allen,  9  Kan.  App. 
230,  59  Tac.  683.  The  record  of 
a  conveyance  is  a  nullity,  where 
the  certificate  of  acknowledgment 
fails  to  state  that  the  officer  is  per- 
sonally acquainted  with  the  party 
acknowledging,  if  such  a  state- 
ment is  required  by  statute:  Kel- 
sey  V.  Dunhp,  7  Cal.  160;  Peyton 
V.    Peacock,    1    Humph.    135.      See, 


CHAP.    XXII.]  REGISTRATION   OF   DEEDS.  1191 

essential  to  the  acconiplislinient  of  this  object  that  the  descrip- 
tion of  the  land  in  the  conveyance  should  be  reasonably  certain 
and  sufficient  to  enable  subsequent  purchasers  to  identify  the 
premises  intended  to  be  conveyed.'  In  many  cases  the  de- 
scription is  so  inaccurate  or  misleading  that  courts  have  no 
hestitancy  in  declaring  it  insufficient  to  charge  purchasers  with 
constructive  notice.  In  others,  while  the  description  is  errone- 
ous, yet  it  may  be  expressed  in  such  a  manner,  or  may  be  con- 
nected with  such  attendant  circumstances,  that  a  purchaser  is 
deemed  to  be  put  upon  inquiry,  and,  if  he  fails  to  prosecute 
this  inquiry,  he  is  chargeable  with  all  the  notice  he  might  have 
obtained  had  he  done  so.  We  call  attention  in  the  following 
sections  to  instances  in  which  these  principles  have  been  ap- 
plied. 

§  650a.  Christian  names  in  record. — Generally  speak- 
ing the  lirst  or  Christian  name  of  a  person  should  appear  for 
the  protection  of  an  innocent  purchaser.  But  there  are  numer- 
ous cases  to  the  effect  that  constructive  notice  may  be  impart- 
ed by  the  record  if  sufficient  is  shown  to  lead  the  inquirer  to 
the  knowledge  sought  to  be  given,  and  for  the  purpose  of  bind- 
ing a  purchaser  with  constructive  notice  the  knowledge  of  the 
inquirer  outside  of  the  record  and  every  fact  which  might  be 
disclosed  by  the  records  if  the  inquiry  had  been  prosecuted  mav 
be  considered.  Thus  a  mortgage  appearing  on  the  record  as 
signed  **S.  M."  Johnson  is  sufficient  to  show  its  execution  by 
"Samuel  M."  Johnson.'     \\'licre  the  Christian  name  of  a  pcr- 

also,     Thurman     v.     Cameron,     24  31  Iowa,  49;  Green  v.  Witherspoon, 

Wend.   87;    Johnson    v.    Walton,    1  37  La.   Ann.   751;   Wright  v.   Lan- 

Sneed,  258.  caster,    48    Tex.    250;    Murphy    v. 

'  Rodgcrs   V.    Kavanaiigh,   24   III.  Hendricks,  57  Ind.  593;  Adams  v. 

583;  Port  v.  Embree,  54  Iowa.  14;  Edgcrton,   48   Ark.   419. 

Barrows  v.  Baughman,  9  Midi.  213 ;  •  Miltonvale  etc.   Bank  v.   Kwnle, 

Eggleston  v.  Watson,  53  Miss.  339;  50    Kan.    420,    26    S.    W.    821,    34 

Wolfe  V.   Dyer,  95   Mo.  545;   Hoi-  Am.    St.    Rep.    129.     The   court   in 

loway  V.    Plainer,  20  Iowa,  121,  8')  this  case  quoted  with  approval  the 

Am.    Dec    517;    Xt-iMjn    v.    Wade,  following    from     IG    Am.    &    Eng. 


1192 


THE  LAW  OF  DEEDS. 


[chap.  XXII. 


son  is  Francis,  a  judgment  indexed  under  the  name  of  Frank 
charges  purchasers  with  notice.'  If  nothing  appears  to  show- 
that  more  than  one  person  of  the  same  name  exists,  a  mistake 
hi  the  initial  of  the  middle  name  of  a  party  to  a  conveyance 
does  not  necessarily  destroy  the  effect  of  the  record  as  notice.^ 


Ency.  of  Law  122:  "Absolute  ac- 
curacy in  spelling  names  is  not  re- 
quired in  documents  or  proceed- 
ings either  civil  or  criminal;  that 
if  the  name  as  spelled  in  the  doc- 
ument, though  different  from  the 
correct  spelling  thereof,  conveys  to 
the  ear,  when  pronounced  accord- 
ing to  commonly  accepted  methods, 
a  sound  practically  identical  with 
the  sound  of  the  correct  name  as 
thus  given  is  a  sufBcient  designa- 
tion of  the  individual  referred  to, 
and  no  advantage  can  be  taken  of 
the  clerical  error." 

'Burns  v.  Ross,  215  Pa.  293,  7 
L.R.A.(N.S.)  415,  64  Atl.  526.  But 
it  was  held  in  the  same  State  that 
a  judgment  given  by  "Daniel  J. 
Murphy"  but  signed  "Daniel  Mur- 
phy" and  indexed  as  such,  did  not 
constitute  a  lien  upon  property  held 
by  him  in  the  name  of  Daniel 
J.  Murphy  as  against  a  purchaser 
who  sought  for  liens  only  against 
"Daniel   J.    Murphy." 

1  Fincher  v.  Hanegan,  59  Ark. 
151,  24  L.R.A.  543,  26  S.  W.  821. 
In  a  case  in  Alabama,  a  mortgage 
was  executed  by  "W.  N.  McDon- 
ald" but  in  the  book  of  records  the 
name  appeared  "W.  H.  McDon- 
ald." It  was  contended  that  the 
mistake  in  the  middle  name  or 
initial  was  immaterial.  The  court 
held,  that  when  a  person  signs  his 
name  by  using  initials  instead  of 
writing  the  full  names,  the  initials 


taken  together  in  their  regular  or- 
der, should  for  the  purpose  of  sig- 
nature be  regarded  as  the  Christian 
name.  On  this  point  the  court 
said :  "It  is  the  rule  in  modern 
business  dealings  to  sign  the  ini- 
tials only  of  one's  Christian  name. 
Such  being  the  case,  it  is  very  nec- 
essary for  the  speedy  transaction 
of  business  that  the  initials  should 
be  correctly  given,  where  one  so 
signs  his  name,  before  one  should 
be  held  to  know  who  the  person 
signing  was,  merely  from  the  rec- 
ord of  his  conveyance.  It  is  true 
that  some  courts  have  held  other- 
wise, contending  that  the  property 
described,  together  with  the  iden- 
tity of  the  surname,  was  sufficient 
to  put  the  subsequent  purchaser  on 
notice  of  facts  which,  if  followed 
up,  would  lead  to  knowledge  of  the 
real  fact.  But  is  it  not  a  better 
rule  to  require  the  person  taking  a 
conveyance  to  see  that  it  is  cor- 
rectly signed  than  to  permit  him 
to  take  a  conveyance  incorrectly 
signed,  and  charge  some  subsequent 
purchaser  who  has  been  misled  by 
the  name  signed  to  pay  for  proper- 
ty twice,  or  pay  for  it  once  and 
then  lose  it?  There  are  but  twen- 
ty-six letters  in  our  alphabet,  and 
one  of  these  must  constitute  the 
initial  of  every  name  in  the  land. 
The  same  letter  is  the  initial  of  a 
vast  number  of  different  names; 
hence   it   can   be   easily   seen   that 


CHAP.    XXII.]  REGISTR.\TION   OF  DEEDS.  1193 

§  650b.  Nickname. — An  owner  of  land  to  whom  prop- 
erty has  been  conveyed  by  a  nickname  may  transfer  it  by  his 
true  name  and  the  purchaser  will  acquire  a  valid  title  notwith- 
standing its  difference  from  the  name  in  the  record.*^  But  a 
judgment  against  "Alay  Alley"  will  not  bind  subsequent  pur- 
chasers when  the  title  was  vested  in  the  name  of  "Mary  A. 
Allely."  '  Where  the  Christian  name  of  a  woman  is  Helen  a 
judgment  indexed  as  Ellen  is  not  notice.*  But  notice  was 
held  to  have  been  imparted  where  a  conveyance  executed  in 
the  name  of  "J.  A."  Stringham  was  indexed  as  "A.  J."  String- 
ham  and  in  the  caption  of  the  instrument  it  appeared  to  have 
been  made  by  "Almira  J.  Stringham."  *  In  Illinois  the  rule 
was  declared  to  be  that  a  purchaser  would  be  protected  by  the 
title  appearing  of  record,  unless  it  could  be  shown  that  he  had 
notice  of  some  fact  to  the  contrary.^  In  California  it  was  de- 
cided that  the  omission  by  the  clerk  of  the  Christian  name  of 
a  judgment  debtor,  or  his  failure  to  write  the  names  in  alpha- 
betical order  would  not  prevent  the  docketing  from  having  full 
force  of  creating  a  judgment  lien  on  the  real  property  of  the 
judgment  debtor.'  The  substitution  of  one  letter  in  a  sur- 
name for  another  letter  is  not  considered  a  fatal  error.' 

where  a  person  signs  his  Christian  ^  Phillips    v.    McKaig,    36    Neb. 

name  by   initials  only,  each  initial  853. 

should   be   correctly   written.     The  *  Thomas    v.    Desney,    57    Iowa, 

common  rule  of  but  one  Christian  50. 

name   and   one   surname,    and   that  6  Huston  v.  Seeley,  27  Iowa,  183. 

a  wrong  middle  initial  or  n^me  is  8  Qrundies   v.   Reid,    107   111.   304. 

immaterial    (if   the   rule   applies  to  "^  Hibberd  v.   Smith,   50  Cal.  511. 

initials),  will  certainly  not  answer  "Jenny  v.  Zehnder,   101   Pa.  206. 

the   modern   requirements  of  busi-  See  for  numerous  cases  decided  on 

ness    with    reference    to    recorded  the   facts   appearing   in   each  case: 

conveyances    being    notice    to    the  Davis   v.    Steeps,   87    Wis.   472,   23 

world  of  the  conveyancer  and  the  L.R.A.  818,  41  Am.   St.   51,  58  N. 

property  conveyed."     First  Nation-  W.  796;  Wook  v.  Darby,  13  Pa.  Co. 

al  Bank  v.  Hacoda  Mercantile  Co.,  Ct.  269;   Miltonvale  State  Bank  v. 

53   So.  802.  Kuhnle,  50  Kan.  420,  31  Pac.  1057, 

2  Fallon  v.  Kehoe,  38  Cal.  44,  99  34  Am.  Sl   Rep.   129;  Gillespie  v. 
Am.  Dec  350. 


1194 


THE  LAW  OF  DEEDS. 


[chap.  XXll. 


§  651.  Illustrations  of  description  insufficient  to  give 
constructive  notice. — The  description  in  a  deed  of  land 
was :  "Lying  as  follows,  viz.,  beginning  at  a  servisberry  cor- 
ner, thence  north  to  white  oak,  thence  east  to  white  oak,  thence 
south  to  limestone  quarry,  thence  to  a  white  oak ;  all  these  trees 
are  marked  for  the  purpose  of  running  off  the  above-described 
land."  The  description  omitted  all  reference  to  the  township, 
county,  or  State  in  which  the  land  was  situated.  The  court 
conceded  that  this  deed  and  an  actual  transfer  of  possession 
would  pass  a  good  title,  but  held  that  the  record  of  it  was  not 
notice  to  a  purchaser  at  a  judicial  sale,  nor  sufficient  to  put  him 
upon  inquiry.'  A  purchaser  is  not  charged  with  constructive 
notice  of  a  mortgage,  describing  certain  lots  upon  a  town  plat 


Rogers,  146  Mass.  612,  16  N.  E. 
711;  Green  v.  Meyers,  98  Mo.  App. 
438,  72  S.  W.  128;  Avery  v.  Texas 
Loan  Agency,  (Tex.  Civ.  App.) 
62  S.  W.  793;  Johnson  v.  Hess, 
126  Ind.  298,  9  L.R.A.  471,  25  N.  E. 
445 ;  Bankers'  Loan  &  Investment 
Co.  v.  Blair,  99  Va.  606,  39  S.  E. 
231,  86  Am.  St.  Rep.  614;  Johnson 
V.  Wilson,  137  Ala.  468,  34  So.  392, 
97  Am.  St.  Rep.  52;  Aultman  v. 
Ward,  50  Neb.  442,  69  N.  W.  935; 
Hutchinson's  Appeal,  92  Pa.  186; 
Wood  V.  Reynolds,  7  Watts  &  S. 
406;  Crouse  v.  Murphy,  140  Pa.  335, 
12  L.R.A.  58,  21  Atl.  358,  23  Am. 
St.  Rep.  232. 

9  Banks  v.  Ammon,  27  Pa.  St. 
(3  Casey)  172.  The  opinion  of  the 
court  was  delivered  by  Knox,  J., 
who  on  this  point  said:  "The  rule 
of  caveat  emptor  applies  to  a  pur- 
chaser at  a  judicial  sale,  but  he  is 
not  bound  to  see  what  is  not  to  be 
seen.  He  is  protected  by  the  re- 
cording acts,  and  secret  defects  in 
a  title  apparently  good,  are  for  him 
no  defects   at  all.     Notice  may  be 


by  record,  by  possession,  or  it  may 
be  given  directly  to  the  person 
sought  to  be  charged  with  it,  either 
by  writing  or  verbally.  In  the  case 
before  us,  at  the  time  of  the  Or- 
phan's Court  sale,  the  possession 
was  in  the  heirs  at  law  of  Joseph 
Hutchison,  and  there  was  no  proof 
of  actual  notice  to  the  purchaser 
that  Andrew  Banks  held  a  life  es- 
tate in  the  premises  sold.  Was  the 
record  of  the  deed  of  14th  August, 
1832,  notice  of  the  estate  of  Banks? 
We  think  not.  There  is  nothing 
in  the  description  to  bring  home 
notice  to  the  purchaser  of  the  iden- 
tity of  the  land.  Neither  township, 
county,  nor  State  is  given  for  its 
locality;  nor  is  the  number  of  the 
tract  or  the  amount  of  acres  men- 
tioned. No  boundaries,  courses,  or 
distances  referred  to;  all  that  is  re- 
quired to  fill  the  description  is  to 
find  one  servisberry,  three  white 
oaks,  a  limestone  quarry,  with  the 
trees  marked  in  some  manner.  One 
about  to  purchase  at  a  judicial  sale, 
finding   such   a   deed   upon   record, 


CHAP.    XXII.]  REGISTRATION   OF   DEEDS.  1195 

whicli  had  not  been  recorded,  when  the  lots  were  described  by 
different  numbers  in  a  plat  recorded  afterward,  and  the  mort- 
gagee was  not  in  possession  of  the  premises.  A  party  is  not 
put  upon  inquiry  by  the  absence  of  a  town  plat  from  the  record 
till  after  the  date  and  record  of  a  conveyance  of  lots  con- 
tained in  it,  so  as  to  charge  him  with  a  knowledge  of  the  facts 
that  it  was  possible  for  him  to  ascertain  by  continuing  such  in- 
quiry.^ Certain  property  should  have  been  described  as  "lot 
one  in  block  six."  It  was,  however,  by  mistake,  described  in 
the  deed  as  "lot  and  six,"  a  part  of  the  words  of  the  correct 
description  being  omitted.  A  purchaser  at  a  judicial  sale,  it 
was  held,  would  take  priority  over  a  senior  purchaser  holding 
a  deed  in  which  the  property  was  thus  inaccurately  described, 
unless  at  the  time  of  his  purchase  he  had  such  notice  as  would 
put  a  reasonably  prudent  man  upon  inquiry.^  A  conveyance 
of  "all  the  estate,  both  real  and  personal,"  to  which  the  grantor 
"is  entitled  in  law  or  in  equity,  in  possession,  remainder,  or 
reversion,"  is  operative  as  a  transfer  of  the  grantor's  whole  es- 
tate. But  it  is  held  that  the  registry  of  a  deed  in  which  the 
land  conveyed  is  described  in  such  general  terms,  is  not  notice 
in  law  to  a  subsequent  purchaser  from  the  grantor  of  the 

might  safely  assume  that  it  did  not  link.  There  is  no  finding  of  such 
apply  to  land  of  which  the  grantor,  fact,  nor  could  the  mortgage  of 
died  seised."  certain  lots  in  a  town  plat  not  up- 
1  Stewart  v.  Huff,  19  Iowa,  557.  on  record  be  construed  into  a  no- 
Said  Cole,  J. :  "The  plaintiffs  might  tice  of  a  claim  upon  other  lots  in  a 
have  protected  tliemselves  perfect-  plat  afterward  made  and  recorded ; 
ly,  and  secured  a  priority  for  their  nor  can  the  absence  from  record 
mortgage  by  causing  the  plat  of  of  a  town  plat  till  after  the  date 
Dyersville,  then  in  existence,  to  be  and  record  of  a  mortgage  of  lots 
duly  recorded.  Without  such  re-  therein,  in  any  just  or  legal  sense  be 
corded  plat  there  was  one  link  want-  held  to  put  a  party  upon  inquiry  so 
ing  in  their  chain  of  title  upon  the  as  to  charge  him  with  knowledge 
record.  The  only  means  of  supply-  of  facts  wilhin  the  possible  range 
ing  this  defect  in  their  record  title  of  such  inquiry." 
was  to  take  possession  of  the  prop-  ^  Nelson  v.  Wade,  21  Iowa,  49. 
erty,  or  otherwise  bring  actual  or  See  Jones  v.  Bamford,  21  Iowa, 
constructive  notice  to  the  defend-  217. 
ant,  of  the  existence  of  the  missing 


1196 


THE  LAW  OF  DEEDS,  [CHAP.  XXIL 


existence  of  the  deed;  such  a  purchaser  is  not  affected  by  ac- 
tual notice  of  a  deed  of  this  character,  and  of  its  contents,  un- 
less he  had  notice  also  that  the  deed  embraced  the  land  pur- 
chased by  him.     It  is  also  held  that  the  proof  of  such  notice 
must  be  sufficient  to  affect  the  conscience  of  the  purchaser,  and 
not  merely  to  put  him  upon  inquiry.'     In  Minnesota,  under 
certain  provisions  of  the  statute,  a  mortgage  may  be  foreclosed 
by  "advertisement."    But  it  is  essential  to  the  exercise  of  this 
right  that  the  mortgage  shall  be  "duly  recorded."  *     Certain 
premises  were  described  in  a  mortgage  as  the  "west  half  of 
the  southeast  quarter  d  section  14."     But  the  premises  were 
described  in  the  registry  as  the  "west  half  of  the  northeast 
quarter  of  section  14."    It  was  held  that  the  mortgage  was  not 
"duly  recorded,"  on  account  of  the  error  in  the  record,  and 
that  a  foreclosure  .f  the  same  could  not  be  had  by  advertise- 
ment.^    A  mortgage  was  executed  to  the  State  of  Indiana  for 
a  loan  of  school  funds.    The  premises  affected  were  described 
by  subdivisions,  but  the  county  and  State  in  which  they  were 
situated  were  not  named.     The  mortgagor  brought  an  action 
to  quiet  title  against  a  purchaser  at  a  sale  made  by  the  county 
auditor.     The  court  held  that  the  mortgage  was  void  for  un- 
certainty in  the  description  of  the  land,  and  that  a  sale  by  the 
auditor  was  consequently  a  nullity  and  conveyed  no  title  to  the 
purchaser.® 

3  Mundy  v.  Vawter,  3  Gratt.  518.      sional   survey   is   part   of   the   pub- 

4  Gen.  Stat.  Minn.,  c.  81,  §§  1,  2.      lie    law     which     we    must    notice. 
6  Thorp  V.  Merrill,  21  Minn.  336.      Without  naming  the  State  or  coun- 

And  see  Ross  v.  Worthington,   11  ty,  or  without  something  by  which 

Minn.   438,  443,   88   Am.   Dec.  95;  the  State  and  county  could  be  as- 

Morrison  v.  Mendenhall,  18  Minn.  certained,    the    description    of    the 

232,  236.  land  in  this  mortgage  would  be  just 

6  Murphy   v.   Hendricks,   57   Ind.  as  applicable  to  the  same  township 

593.     Said    Biddle,    C.    J.,    for   the  and  range  in  reference  to  any  other 

court:     "The    vast    territory    lying  base  and  meridian  line  in  the  sev- 

northwest  of  the  Ohio  River  was  eral  States  northwest  of  the  Ohio 

surveyed    upon    a   system    of   base  River,  as  it  is  to  the  base  and  mc- 

and   meridian  lines,    under  various  ridian  lines  by  which  the  survey  of 

acts  of  Congress,  and  this  congres-  the  lands   in  the   State  of  Indiana 


CHAP,   XXII.]  REGISTRATION   OF  DEEDS.  1197 

§  652.  Illustrations  where  purchaser  bound,  though 
description  inaccurate. — In  a  conveyance  filed  for  record, 
the  land  was  described  as  "the  south  half  of  the  southeast 
quarter  of  section  15,  town.  8  north,  range  43  east,  of  the 
fourth  principal  meridian."  The  correct  description  should 
have  been  "the  south  half  of  the  southeast  quarter  of  section 
15,  in  town.  43  north,  range  8  east,  of  the  third  principal 
meridian,"  the  numbers  of  the  township  and  range  having  been 
transposed,  and  there  being  no  land  in  the  county  correspond- 
ing to  the  description  in  the  deed.  It  was  held,  however,  that 
notwithstanding  the  misdescription,  the  registry  laws  were  ap- 
plicable, and  that  a  purchaser  was  put  upon  inquiry  and 
charged  with  knowledge  of  the  conveyance  of  the  premises.' 
The  uvvner  of  a  northeast  corner  of  a  lot  of  land  sold  it,  but 
in  the  deed  it  was  described  as  the  northwest  corner  of  the 
lot,  which  was  the  property  of  another.  The  grantee  subse- 
quently sold  the  land  to  third  persons  in  payment  of  an  ante- 
cedent debt,  but,  following  the  description  in  his  deed,  made 
the  same  mistake  in  his  conveyance  to  the  second  grantees. 
\Vhen  the  mistake  was  discovered,  the  grantor  and  the  grantee 
in  the  first  deed,  for  the  purpose  of  correcting  the  error  in  the 

were    [was]    made.     It    is,    impos-  er,  29  Ind.  1 ;  German  etc.  Ins.  Co. 

sible   to   ascertain,   therefore,   from  v.   Grim,  32  Ind.  249,  2  Am.  Rep. 

the  face  of  the  mortgage,  or  from  341 ;  Harding  v.  Strong,  42  III.  148, 

anything    to    which    the    mortgage  89  Am.  Dec.  415,  and  3  Wash.  Real 

refers,  in  what  State  or  county  the  Prop.  (4th  ed.),  pp.  384-412."     See, 

land     described     therein     lies.     As  also,   Cochran  v.  Utt,  42  Ind.  267. 

the  mortgage   is   the  basis   of   title  For    other   cases    involving   similar 

in   the   appellants,   we   think   it  too  questions    to    those    mentioned    in 

uncertain  to  uphold  their  claim.    In  tliis  section,  the  reader  is  referred 

addition   to   the   case   cited,   which  to  Galway  v.  Malchow,  7  Neb.  285; 

we   regard   as   being   in   point,   the  Brotherton  v.  Levingston,  3  Watts 

following  authorities   fully  support  &    S.    334;    Lally    v.    Holland,     1 

the     same     principle:      Porter     v.  Swan,  396;  Martindale  v.  Price,  14 

Byrne,    10    Ind.    146,   71    Am.    Dec.  Ind.  115. 

305 ;  The  Eel  River  Draining  Assn.  '  Partridge  v.  Smith,  2  Biss.  183. 

V.   Topp,    16   Ind.   242;    Munger   v.  See,  also,  Polk  v.  Chaison,  72  Tex. 

Green,   20   Ind.   38;   Gano   v.    Aid-  500. 
ridge,  27  Ind.  294;  Key  v.  Ostrand- 


1198  THE  LAW  OF  DEEDS.  [CHAP.  XXU. 

former  deeds,  joined  in  a  deed  to  the  second  grantees,  of  the 
northeast  corner  of  the  lot,  its  correct  description.  It  was  held 
that  the  second  grantees  were  entitled  to  the  land  in  equity  as 
against  a  person  who  had  purchased  it,  with  notice  of  the  er- 
ror, under  a  judgment  obtained  against  the  original  grantor 
after  the  execution  of  the  first  deed,  but  before  the  second  deed 
correcting  the  error  was  made.^  A  lot  was  described  in  a 
mortgage  by  the  number  "eighteen,"  instead  of  its  correct 
number  "eight."  A  subsequent  mortgage  was  executed,  in 
which  the  lot  was  correctly  described,  but  the  second  mort- 
gagee had  notice  of  the  mistake  in  the  first  mortgage.  It  was 
held  that  the  lien  of  the  first  mortgage  attached  to  lot  "eight," 
and  that  it  was  entitled  to  priority  over  the  subsequent  mort- 
gage.^ A  mortgage  was  executed  which  described  the  land 
affected  as  "beginning  two  hundreds  north  of  the  southwest 
quarter  of  section  number  34,"  but  omitted  by  mistake  the 
word  "rods,"  after  the  word  "hundreds."  But  the  deed  by 
which  the  mortgagor  held  the  land,  and  which  was  recorded, 
contained  a  correct  description  of  the  land,  describing  it  as 
beginning  two  hundred  rods  from  the  same  corner  mentioned 
in  the  mortgage.  A  subsequent  mortgagee  had  knowledge  that 
the  land  was  occupied  by  the  mortgagor  as  his  homestead  for 
a  long  period  of  time.  It  was  held  that  the  record,  with  the 
other  facts,  charged  the  subsequent  mortgagee  with  notice  of 
the  prior  mortgage  and  of  the  land  intended  to  be  affected.^ 

8  Gouverneur   v.    Titus,   6    Paige,  By  turning  to  the  records  he  would 
347.  discover  his  vendor  purchased  the 

9  Warburton       v.       Lauman,       2  land    of    James    Corunda,    and    re- 
Greene,  420,  424.  ceived  a  deed  therefor  on  April  11, 

1  Bent  V.  Coleman,  89  111.  364,  7  1855,   in    which   the   land   was   des- 

Am.    Rep.    366.     Said    Mr.    Justice  cribed    as    follows:      Commencing 

Breese:     "A  person   about  to  pur-  two    hundred    rods    north    of    the 

chase  this  tract  of  land  would  nat-  .<;outhwest    corner,    etc.,    containing 

urally  inquire  into  the  title  of  the  forty  acres  of  land.     This  deed  was 

vendor;     he    would    ascertain     his  filed  for  record  on  April    13,   1855, 

source  of   title.     This   is   the   ordi-  and    recorded    May    4,     1855,    and 

nary  and  usually  the  first  inquiry.  thereby   open  to   the  inspection   of 


CHAP.    XXII.] 


REGISTRATION   OF   DEEDS. 


1199 


§  653.  Description  by  an  impossible  sectional  num- 
ber.— If  the  premises  are  described  by  an  impossible  sec- 
tional number,  the  record  of  the  deed,  it  follows  in  accord  with 


all  persons.  This  reference,  which 
a  person  of  the  most  ordinary  pru- 
dence would  make,  would  have  sat- 
isfied a  searcher  for  the  truth  that 
there  was  a  mistake  in  the  descrip- 
tion, and  in  this  case  the  more  es- 
pecially, as  all  the  mortgagees  hold- 
ing by  mortgages  subsequent,  knew 
the  land  mortgaged  was  the  home- 
stead of  their  grantor.  It  was  a 
well-imp.  oved  tract,  inclosed  by  a 
growing  hedge,  with  a  comfort- 
able dwelling  and  other  structures 
of  a  permanent  and  valuable  char- 
acter. The  mortgagor  occupied  it 
from  the  time  of  his  purchase  from 
Corunda  to  the  date  of  the  last 
mortgage,  something  like  twenty 
years.  Appellant  was  familiar  witii 
the  place,  being  a  frequent  visitor 
there,  and  knew  when  she  took  her 
mortgage  it  was  his  home  place, 
and  the  record  would  have  told  her 
it  was  the  forty  acres  he  purchased 
of  James  Corunda."  A  court  of 
equity  may  reform  a  mortgage 
which  omits  a  parcel  of  land  which 
the  parties  intend  to  include,  and 
the  parcel  omitted  will  be  free  from 
a  judgment  lien  created  after  the 
execution  of  the  mortgage:  White 
V.  Wilson,  6  Blackf.  448,  39  Am. 
JDec.  437.  A  conveyance  described 
the  land  as  "lot  four  of  block  one 
of  the  La  Fontaine  farm  lying 
south  of  the  river  road,  and  front- 
ing on  Detroit  river,  being  now 
used  and  occupied  with  the  steam 
sawmill  thereon,  by  the  parties  of 
the  first  part."  It  appeared,  how- 
ever,  that   that  portion   of  the   La 


Fontaine  farm  had  been  platted  in- 
to four  lots  or  blocks,  which  had 
not  been  subdivided ;  the  mill  was 
situated  on  the  one  numbered  four 
on  the  platj  the  others  were  fenced 
in  and  occupied  with  the  mill.  The 
court  held  that  the  words  "of 
block  one,"  of  the  above  descrip- 
tion, should  be  rejected,  and  that 
when  the  error  in  a  conveyance  is 
apparent,  the  record  is  notice  to 
subsequent  purchasers :  Anderson 
V.  Baughman,  7  Mich.  69,  74  Am. 
Dec.  699.  See  Tousley  v.  Tousley, 
5  Ohio  St.  78.  A  subsequent  judg- 
ment lien  is  not  entitled  to  priority 
because  there  has  been  an  error  in 
the  description  of  a  prior  deed  or 
mortgage :  Welton  v.  Tizzard,  15 
Iowa,  495;  Gillespie  v.  Moon,  2 
Johns.  Ch.  585,  7  Am.  Dec.  559; 
Sevarts  v.  Stees,  2  Kan.  236.  For 
various  instances  on  which  omis- 
sions and  inaccuracies  in  the  de- 
scription have  been  held  immaterial, 
and  not  to  aflfect  the  validity  of  a 
conveyance,  because  the  land  was 
sufficiently  described  to  enable  it  to 
be  identified,  see  Thornhill  v.  Bur- 
the,  29  La.  Ann.  639;  Consolidated 
Associated  Planters  v.  Mason,  24 
La.  Ann.  518;  Ellis  v.  Sims,  2  La. 
Ann.  251 ;  Boon  v.  Pierpont,  28  N. 
J.  Eq.  7;  Slater  v.  Brecse,  36  Mich. 
11;  Shepard  v.  Shepard,  36  Mich. 
173;  Baker  v.  Bank,  2  La.  Ann. 
371 ;  Bank  v.  Barrows,  21  La.  Ann. 
396;  Marcotte  v.  Coco,  12  Rob. 
(La.)  167;  Bank  v.  Denham,  7 
Rob.  (La.)  39. 


1200  THE  LAW  OF  DEEDS.  [CHAP.  XXIL 

the  foregoing  decisions,  is  sufficient  to  put  a  purchaser  from 
the  same  grantor  upon  inquiry.  He  might,  by  pursuing  such 
inquiry,  obtain  actual  knowledge  of  the  prior  deed.  "Let  it 
be  granted,"  said  Mr.  Justice  Breese,  "that  it  was  inaccurate- 
ly recorded,  the  point  we  then  make  is,  the  record  disclosed  the 
fact  that  a  deed  for  a  tract  of  land  with  an  impossible  sec- 
tional number,  in  township  thirty-four  north,  range  three  east, 
of  the  third  principal  meridian,  was  recorded,  the  names  of 
the  parties  thereto  distinctly  appearing.  Now,  a  party  deal- 
ing with  the  grantor  in  such  a  deed  would  have  his  attention 
arrested  by  this  singular  description,  and  he  would  naturally 
be  led  to  inquiry.  The  record  afforded  him  abundant  data, 
which,  properly  used  and  diligently  inquired  into,  would  m- 
evitably  lead  him  to  the  fact  of  the  existence  of  the  deed."  " 


»» 2 


§  654.  Distinction  between  description  in  deed  and 
mortgage. — In  Connecticut,  it  was  intimated  that  a  dis- 
tinction exists  between  the  sufficiency  of  a  description  of  land 
in  a  deed  and  that  of  land  in  a  mortgage.  In  the  case  in 
which  this  suggestion  was  made  there  were  several  mortgag- 
ors, and  some  of  the  parcels  of  land  belonged  to  one  of  the 
signers,  and  some  were  the  property  of  others.  The  mortgage 
described  the  land  conveyed  as  "four  certain  farms  situated 
in  the  town  of  Canaan,  and  bounded  and  described  as  fol- 
lows," the  farms  being  then  separately  described,  and  the  de- 
scription concluded  in  this  language:  "Also  all  such  other 
lands  as  we,  the  grantors,  or  either  of  us,  own  or  have  any 
interest  in,  situate  in  said  town  of  Canaan;  reference  being  at 
all  times  had  to  the  land  records  of  said  Canaan,  and  to  the 
probate  records  for  the  district  of  Sharon,  for  more  particular 
description  of  the  same."  There  was  another  piece  of  land 
belonging  to  one  of  the  grantors  not  adjacent  to  or  connected 
with  the  farms  described  in  the  conveyance.  On  a  bill  to  fore- 
close the  mortgage,  it  was  held  by  a  majority  of  the  court, 

2  Merrick  v.  Wallace,  19  111.    486,      498. 


CHAP.   XXII.]  REGISTRATION  OF  DEEDS.  1201 

the  court  standing  three  to  two,  that  this  last-mentioned  piece 
was  not  conveyed  by  the  mortgage.'  Mr.  Justice  Pardee,  who 
spoke  for  the  majority  of  the  court,  said:  "Whatever  might 
be  held  with  regard  to  the  sufficiency  of  such  a  description  in 
an  ordinary  deed  intended  merely  to  convey  title,  yet  we  think 
such  a  description  clearly  insufficient  in  the  case  of  a  mort- 
gage. It  is  a  fixed  principle  of  our  law  that  mortgage  deeds 
should  give  subsequent  creditors  of  the  mortgagor  definite  in- 
formation as  to  the  debt  due  to  the  mortgagee,  and  as  to  the 
particular  property  pledged  for  its  payment.  It  is  only  by 
knowing  -..hat  the  property  is  that  they  can  learn  its  value,  and 
it  is  as  important  to  them  to  know  its  value  as  to  know  the 
amount  of  the  debt  for  which  it  is  mortgaged;  and  they  are 
entitled  to  the  law  of  registration  in  obtaining  this  informa- 
tion. To  be  told  that  the  mortgage  covers  all  the  real  estate 
which  the  grantor  owns  in  the  town  of  Hartford,  is  to  im- 
pose upon  them  the  examination  of  many  thousand  pages  of 
records ;  for  it  is  to  be  borne  in  mind  that  the  grantor  himself 
may  have  received  his  titles  by  the  same  general  description, 
and  from  many  different  grantors.  The  recognition  by  the 
courts  of  such  a  mortgage  as  valid  would  be  equivalent  to  the 
abrogation  of  the  recording  system,  so  far  as  mortgages  are 
concerned.  It  is  not  unreasonable  to  require  of  the  mortgagee 
that  his  deed  should  mention  a  name,  or  a  locality,  or  point  to 
a  monument,  or  a  particular  deed,  or  refer  to  some  book  or 
page.  It  would  be  only  his  proper  contribution  to  the  uphold- 
ing of  a  system  which  confers  great  benefits  upon  the  public. 
We  are  of  opinion,  therefore,  that  the  general  description  in 
this  mortgage  was  not  sufficient  to  convey  the  interest  of  Mrs. 
Scott,  the  owner,  to  the  mortgagees.  We  are  not  prepared  to 
say  that  we  should  apply  the  same  rule  without  qualification, 
to  a  deed  that  was  intended  only  as  a  conveyance  of  title.  The 
policy  of  our  law  with  regard  to  the  definite  information  to  be 
given  to  creditors  and  purchasers  by  mortgages,  does  not  ap- 

•  Herman    v.    Demitig,    44    Conn.   124, 
Deeds,  Vol.  11.-76 


1202 


THE  LAW  OF  DEEDS. 


[chap.  XXII. 


ply  to  ordinary  conveyances.  Here,  however,  comes  in  the 
policy  of  the  law  with  regard  to  records  of  titles,  which  is  ap- 
plicable to  all  recorded  conveyances,  whether  by  absolute  deed 
or  mortgage."  * 


4  Herman  v.  Deming,  supra. 
Continuing,  the  justice  said:  "In 
North  V.  Belden,  13  Conn.  380,  35 
Am.  Dec.  83,  this  court  said:  'It 
has  ever  been  the  policy  of  our 
law  that  the  title  to  real  estate 
should  appear  upon  record,  that  it 
might  be  easily  and  accurately 
traced.  This  policy  has  added 
greatly  to  the  security  of  our  land 
titles,  and  has  prevented  much  lit- 
igation which  would  otherwise  have 
arisen.'  And  Swift  in  his  Digest, 
vol.  1,  p.  122,  lays  it  down  that  'it 
is  essential  that  the  land  to  be  con- 
veyed should  be  so  located,  butted, 
bounded,  and  described  in  the  deed, 
as  that  it  can  be  known  where  it 
lies,  and  be  distinguished  from  any 
other  tract  of  land,  or  there  must 
be  such  reference  to  some  known 
and  certain  description  as  will  re- 
duce the  matter  to  certainty.'  If 
we  were  to  give  judicial  sanction  to 
this  form  of  conveyance,  we  should 
practically  put  an  end  to  the  record- 
ing system.  If  we  say  that  such 
general  language,  following  as  here 
a  particular  description,  does  more 
than  strengthen  and  secure  what 
has  gone  before  it,  that  it  is  suffi- 
ciently descriptive  to  support  a  dis- 
tinct and  independent  grant  of  ad- 
ditional estate,  and  that  it  meets  the 
requirements  of  that  system,  we 
should  establish  a  precedent  upon 
which  grantees  would  hereafter 
rely,  and  from  which  the  court 
would  find  it  difficult  to  recede. 
After  a  succession  of  such  convey- 


ances, land  records  would  cease  to 
furnish  any  information ;  the  same 
confusion  would  result  as  would 
come  from  the  removal  of  all 
fences,  mere-stones,  and  other  mon- 
uments, which  indicate  the  location 
of  separating  lines.  The  rule  of 
law  which  declares  that  to  be  cer- 
tain which  can  be  made  certain  is 
not  complied  with  in  such  a  deed. 
The  rule  demands  a  reference  and 
pointing  to  particular  documents  or 
records.  If  we  say  that  such  a  ref- 
erence is  sufficiently  explicit  for  the 
town  of  Canaan,  and  the  probate 
district  of  Sharon,  we  say  that  it 
is  proper  for  the  town  and  probate 
district  of  Hartford,  with  its  fifty 
thousand  pages  of  records.  A 
search  through  and  an  examination 
of  these  does  not  come  within  any 
reasonable  interpretation  of  the 
rule.  We  are  aware  that  courts 
have  confirmed  grants  made  in  this 
general  form;  for  instance,  in  1814, 
in  Jackson  v.  De  Lancey,  11  Johns. 
365,  the  court  subjected  to  the  oper- 
ation of  a  deed  made  in  1770,  a 
tract  of  land  which  was  not  other- 
wise described  therein  than  in  the 
following  clause :  'And  all  other 
lands,  tenements,  and  hereditaments 
belonging  to  said  William  Alexan- 
der, Earl  of  Stirling,  within  the 
province  of  New  York.'  This  was 
made  to  rest  upon  the  principle  that 
grantors  and  grantees  may  make 
and  take  such  conveyances  as  are 
satisfactory  to  themselves ;  and  the 
principle  is  doubtless  deduced  from 


CHAP.    XXII.]  REGISTRATION   OF  DEEDS.  1203 

§  655.  Comments. — We  have  not  been  able  to  find 
any  other  decision  in  any  other  State  where  this  precise  ques- 
tion has  arisen.  But  we  doubt  that  any  vaHd  ground  exists 
for  the  distinction  sought  to  be  made.  Certainly  a  correct  de- 
scription of  the  land  affected  would  seem  to  be  as  essential  in 
one  case  as  in  the  other,  and  whenever  language  is  used  which 
is  sufficient  to  show  the  intention  of  the  parties,  it  should  re- 
ceive the  same  construction,  whether  the  land  to  which  it  is 
applied  is  conveyed  by  an  absolute  deed  or  is  mortgaged. 

§  656.  Instruments  not  entitled  to  registration. — The 
registry  acts  authorize  the  recording  of  certain  specified  in- 
struments, and  their  registration  operates  as  notice.  But  the 
fact  that  an  instrument  is  recorded  is  not  sufficient  to  raise 
the  presumption  of  notice,  unless  it  be  an  instrument  whose 
registration  is  authorized  by  statute.  Otherwise  the  voluntary 
recording  of  it  would  be  a  nullity.  The  law  on  this  subject  is 
aptly  stated  by  I^Ir.  Justice  Flandrau :  "It  is  competent  for 
the  government  to  prescribe  rules  for  the  conveyance  of  lands 

English  decisions  made  without  ref-  signature  of  the  grantor;  he  must 
crence  to  any  system  of  recording  acknowledge  that  it  is  his  free  act 
the  transfer  of  title  to  real  estate,  or  deed  before  a  magistrate,  and 
made  in  cases  where  there  was  an  the  magistrate  must  certify  to  this 
actual  delivery  of  possession  by  the  fact.  These  may  be  considered  as 
grantor  to  the  grantee  in  the  prcs-  invasions  of  the  absolute  right  of 
ence  of  freeholders  of  the  county.  the  owner  to  make  the  conveyance 
This  gave  actual  notice  to  the  pub-  in  a  form  satisfactory  to  himself. 
lie,  and  stood  in  the  place  of  con-  But  as  it  is  not  necessary  to  the  dis- 
structive  notice  by  a  record;  the  position  of  the  case  that  we  decide 
open,  corporeal  investiture  upon  the  this  point,  we  leave  it  open  for  fut- 
land  itself,  was  equivalent  to  a  rec-  ure  consideration,  if  any  case  shall 
ord  of  specific  boundaries.  And  the  arise  that  shall  call  for  a  decision 
principle  is  not  of  universal  appli-  of  it.  We  are  of  the  opinion  that 
cation;  as  a  matter  of  fact  the  law  the  mortgage  in  question  did  not 
does  put  some  limitations  upon  the  convey  to  the  petitioners  any  title  to 
freedom  of  grantors  and  grantees  or  interest  in  the  lot  of  land  be- 
in  the  matter  of  transferring  the  longing  to  Mrs.  Scott,  and  that 
title  to  real  estate;  for  instance,  there  is  error  in  the  judgment  com- 
there  must  be  two  witnesses  to  the  plained  of." 


1204  THE  LAW  OF  DEEDS.  [CHAP.  XXIL 

within  its  jurisdiction,  whether  by  deed,  will,  or  otherwise,  and 
it  can  impose  such  restrictions  as  are  deemed  for  the  best  in- 
terests of  its  subjects.  It  may  provide  that  the  title  to  lands 
shall  not  pass  unless  the  deed  or  will  is  upon  paper,  stamped 
by  the  State.  It  may  declare  that  the  instrument  shall  be  at- 
tested by  one,  two,  or  more  witnesses;  and  none  of  these  re- 
quirements involve  a  greater  exercise  of  authority  than  to  say 
tested  by  one,  two,  or  more  witnesses;  and  none  of  these  re- 
quirements involve  a  greater  exercise  of  authority  than  to  say 
that  the  conveyance  shall  be  in  writing,  as  there  is  no  reason 
except  the  statutes  why  a  man  should  -not  pass  his  real  as  well 
as  his  personal  estate  by  parol  merely.  That  statutes  requir- 
ing certain  solemnities  to  attend  the  execution  of  conveyances 
are  imperative,  and  must  be  complied  with  to  give  validity  to 
them,  is  illustrated  by  the  action  of  courts  in  annulling  wills 
and  conveyances  of  land  frequently  for  the  want  of  a  r.eal  or 
other  essential  formality.  That  our  legislature  has  always  con- 
sidered a  departure  from  the  statute  forms  as  invalidating 
conveyances,  is  found  in  the  fact  that  a  series  of  acts  have  been 
passed,  year  after  year,  to  save  such  as  are  defectively  execut- 
ed, while  the  same  legislatures  have  steadily  adhered  to  the 
forms  first  prescribed,  and  even  added  greater  restrictions. 
When  a  party  desires  to  purchase  or  take  an  encumbrance  upon 
land,  his  guide  as  to  the  title  is  the  records  of  the  county,  and 
it  is  a  well-settled  rule  that  the  record  of  a  deed  is  notice  only 
of  its  contents  so  far  as  the  record  discloses  it.  If  the  record 
contain  any  instrument  which  is  not  authorized  to  be  re- 
corded, either  from  the  nature  of  its  subject  matter,  or  a 
defect  in  its  execution,  it  is  a  mere  nullity,  and  is  not  notice 
for   any   purpose."  ^     An   instrument   does   not   give   notice, 

6  In  Parret  v.  Shaubhut,  5  Minn.  317;    Bossard    v.    White,    9    Rich. 

323,  328,  80  Am    Dec.  424;   Burn-  Eq.    483;    Reed    v.    Coale,    4    Ind. 

ham  V.  Chandler,  IS  Tex.  441.    See,  283;   Brown  v.  Budd,  2  Cart.  442: 

also.     Commonwealth     v.     Rhodes,  Lewis  v.  Baird,  3  McLean,  56;  Gal- 

6      Mon.      B.      171,      181;      More  pin  v.  Abbott,  6  Mich.  17;   Mott  v. 

V.      Hunter,     6      111.      (1    Gilm.)  Clark,  9  Barr.  400,  49  Am.  Dec.  566; 


CHAP.   XXII.] 


REGISTRATION   OF  DEEDS. 


1205 


although   recorded,  which  does  not  conform   to  the   record- 
ing- laws.® 


§  657.  Illustrations. — One  partner  conveyed  to  his  co-. 
partner  his  entire  interest  in  the  partnership  property  as  se- 
curity for  a  debt.  It  was  held  that  the  registration  of  the 
mortgage  would  operate  as  constructive  notice  as  against  sub- 
sequent creditors  and  purchasers  of  the  lien  created  on  the  in- 
terest of  the  mortgagor  in  the  property.  But  the  court  held 
that  it  could  not  have  this  effect,  so  far  as  any  restraint  or 
limitation  was  imposed  by  it  on  the  authority  of  the  mortgagor 
as  a  partner.'^     "This  principle  of  constructive  notice   from 


Graves  v.  Graves,  7  Gray,  391 ; 
Pringle  v.  Dunn,  37  Wis.  449,  19 
Am.  Rep.  772 ;  Ludlow  v.  Van  Ness, 
8  Bosw.  178;  Villard  v.  Robert,  1 
Strob.  Eq.  393;  Monroe  v.  Hamil- 
ton, 60  Ala.  227.  In  Moore  v. 
Hunter,  supra,  it  is  said:  "The 
United  States  are  the  owners  of  all 
the  vacant  lands  in  this  State,  and 
until  they  have  sold  and  received 
the  price  stipulated  to  be  paid  for 
any  particular  tract  of  land  belong- 
ing to  them,  the  recording  acts  of 
this  State  have  no  application.  A 
contrary  doctrine  would  lead  to 
great  injustice.  Until  the  United 
States  have  parted  with  their  title 
to  the  public  lands,  no  purchaser 
would  think  of  seeking  for  equities 
or  encumbrances,  affecting  the  title, 
in  any  other  place  than  those  of- 
fices where  the  lands  were  subject 
to  entry  or  sale.  When  Dunnegan 
executed  the  deed  to  Bates,  only 
part  of  the  consideration  for  the 
land  had  been  paid,  and  whether 
the  land  might  not  revert  to  the 
United  States  was  altogether  un- 
certain.   To    record    the    deed    of 


Dunnegan  was  a  useless  act,  not 
required  by  law,  and  the  record, 
consequently,  was  not  notice  to  any 
one."  See,  also,  Keech  v.  Enri- 
quez,  28  Fla.  597;  McCroskey  v. 
Ladd  (Cal.)  28  Vt.  216.  That  a 
deed  not  legally  entitled  to  record 
does  not  constitute  notice,  see 
White  v.   Magarahan,  87  Ga.  217. 

6  People  v.  Burns,  161  Mich.  169, 
125  N.  W.  740. 

■7  Monroe  v.  Hamilton,  60  Ala. 
227.  If  a  deed  is  not  sufficiently 
acknowledged  its  record  does  not 
give  constructive  notice:  Woods  v. 
Banks,  34  Iowa,  599;  Sherod  v. 
Ewell,  104  Iowa,  253,  73  N.  W. 
493;  Ligon  v.  Barton,  88  Miss. 
135,  40  So.  555;  Stevens  v.  Hamp- 
ton, 46  Mo.  404;  Bishop  v.  Schneid- 
er, 46  Mo.  472,  2  Am.  Rep.  533; 
Ryan  v.  Carr,  46  Mo.  483;  Bunton 
V.  Scull,  55  N.  J.  Eq.  747,  35  Atl. 
843;  Hunton  v.  Wood,  101  Va.  54, 
43  S.  E.  186;  Abney  v.  Ohio  Lum- 
ber etc.  Co.  45  W.  Va.  446,  32  S. 
E.  256;  Williams  v.  Butterfield, 
182  Mo.  181,  81  S.  W.  615;  Salvage 
V.  Haydock,  68  N.  H.  484,  44  Atl 


1206  THE  LAW  OF  DEEDS.  [CHAP.  XXII. 

registration  is  confined  to  instruments  which  the  statute  au- 
thorizes to  be  registered.  It  cannot  be  extended  to  any  and 
every  instrument  which  parties  may  think  proper  to  register. 
There  must  be  a  statute  authorizing  the  registration,  or  mere 
registration  will  not  operate  as  notice.'  Nor  will  registra- 
tion operate  as  constructive  notice  of  any  and  every  provision 
which  may  be  introduced  into  an  instrument,  of  which  it  is  re- 
quired. A  conveyance  of  personal  property  may  include  i 
transfer  of  choses  in  action,  and  while  operating  as  construc- 
tive notice  of  the  transfer  of  the  particular  personal  property 
described,  it  would  not  operate  as  a  notice  of  the  transfer  ot 
the  choses  in  action.'  The  reason  is  obvious :  the  law  does  not 
authorize  the  registration  of  transfers  of  choses  in  action,  and. 
therefore,  does  not  cast  on  those  dealing  with  him  who  has 
the  possession  and  the  apparent  legal  title,  the  duty  to  ascer- 
tain whether  there  has  been  an  assignment  of  them.  We  have 
no  statute  (except  as  to  limited  partnerships)  which  author- 
izes the  registration  of  articles  of  partnership,  or  of  limita- 
tions or  restraints  which  by  agreement  may  be  placed  on  the 
power  and  authority  of  a  partner.  While,  so  far  as  the  mort- 
gage is  a  conveyance  of  Hamilton's  undivided  share  of  the 
joint  crops,  its  registration  is  constructive  notice  thereof;  so 
far  as  it  is  a  restraint  or  limitation  of  his  authority  as  partner, 
the  registration  is  not  constructive  notice."  ^  Where  both 
real  and  personal  estate  are  conveyed  by  the  same  deed,  the 
registry  of  the  deed  is  not  of  itself  constructive  notice  of  the 
assignment  of  the  personal  estate.'^  A  recital  in  a  deed  is  evi- 
dence that  the  purchaser  had  notice  of  the  fact  recited.     But 

696;    German-American    v.    Caron-  ^  Citing  McCain  v.  Wood,  4  Ala 

delet  Real  Estate  Co.  150  Mo.  570,  258;   Stewart  v.   Kirkland,   19  Ala 

51  S.  W.  690.  162. 

8  Citing    Mitchell    v.    Mitchell,    3  i  Per   Brickell,   C.  J.,  in  Monroe 

Stewt.  &  P.  81 ;  Duf phey  v.  Free-  v.  Hamilton,  60  Ala.  227. 

naye,  5  Stewt.  &  P.  215 ;  Baker  v.  2  Pitcher    v.    Barrows,    17    Pick. 

Washington,    5    Stewt.    &    P.    142;  361,  28  Am.  Dec.  306.     Said  Shaw, 

latum  V.  Young,  1  Port.  298.  C.   J.:    "But  we   think   this   is   not 


Chap,  xxii.]  registration  of  deeds.  1207 

this  is  true  only  so  far  as  it  concerns  the  title  to  the  land 
purchased.  The  recital  will  not  affect  him  with  notice  in  re- 
gard to  the  title  of  any  other  land  than  that  conveyed  by  the 
deed.^  A  deed  of  assignment  when  not  authorized  to  be  re- 
corded does  not  impart  notice  because  it  is  recorded.*  Subse- 
quent purchasers  are  not  charged  with  constructive  notice  of 
the  facts  appearing  from  the  entry  of  lands  sold  by  the  United 
States,  upon  the  land-book  in  the  county  clerk's  office,  as  such 
entry  is  required  only  for  the  purposes  of  taxation.^  The  reg- 
istration of  executory  agreements  for  the  sale  of  real  property, 
if  not  authorized  by  statute,  does  not  impart  notice.^  If  the 
statute  does  not  authorize  the  registration  of  a  certified  copy 
of  a  record  of  a  deed,  such  registration  is  a  nullity.' 

§  658.  Want  of  delivery. — If  a  conveyance  has  not 
been  delivered,  the  fact  that  it  is  registered  does  not  cause 
it  to  prevail  over  a  conveyance  subsequently  made,  or  a  lien 
subsequently  acquired.  Thus,  a'  judgment  against  a  mort- 
gagor was  given  the  preference  over  a  mortgage  which  was, 
in  the  absence  and  without  the  knowledge  of  the  mortgagee, 
delivered  by  the  mortgagor  to  the  recorder  of  the  proper  county 

constructive     notice,     any     further  relating    to    personal    estate,    there 

than  the  statute  has  made  it  so,  to  is    no    legal    presumption    that    its 

wit,  of  the  transfer  of   real  estate.  contents  were  known  to  the  plain- 

The  fact  that  the  assignment  of  the  tiff." 

personal    estate    was    in    the    same  ^  Boggs  v.  Varner,  6  Watts  &  S. 

deed  with  the  real,  was  merely  ac-  469. 

cidental.     If    the   plaintiff   had   had  *  Burnham   v.    Chandler,   15  Tex. 

occasion   to   take    a   deed   of    Wal-  441. 

cott,    of    real    estate,    the    registry  ^  Betser   v.    Rankin,   11   111.   289. 

would    have    been    conclusive    evi-  ^  Mesick    v.    Sunderland,    6    Cal. 

dence       of       constructive      notice,  297. 

whether    in    fact   he    examined   the  '  Lund    v.    Rice,    9    Minn.    230 ; 

registry  or  not.     But  if  he  had  no  Stevens    v.    Brown,    3    Vt.    420,    23 

occasion   to   take   a   conveyance   of  Am.  Dec.  215;   Pollard  v.  Lively,  2 

real   estate,  he  had  no  occasion  to  Gratt.  216;  Lewis  v.  Baird,  3  Mc- 

examine  the  registry,  and  the  law  Lean,    56;    Oatman    v.    Fowler,    43 

does   not  presume   that   he   did   do  Vt.  462. 

it.    As  to  that  part  of  its  contents 


1208  THE  LAW  OF  DEEDS.  [CHAP.  XXII. 

to  be  recorded,  where  the  judgment  was  obtained  before  the 
mortgagee  had  assented  to  the  mortgage.'  Where  a  deed  has 
been  unconditionally  delivered  to  the  grantee,  irrespective  of 
the  question  whether  the  consideration  has  been  paid  or  se- 
cured, the  deed  may  be  recorded  without  the  grantor's  con- 
sent.^ This  principle  relates  more  to  the  validity  of  the  in- 
strument than  it  does  to  the  effect  of  the  record.  The  instru- 
ment is  not  operative  until  delivery.  "A  deed  takes  effect  by 
delivery.  An  execution  and  registration  of  a  deed,  and  a  de- 
livery of  it  to  the  register  for  that  purpose,  do  not  vest  the 
title  in  the  grantee.  Nothing  passes  by  it."  ^  This  topic  has 
been  fully  discussed  in  the  chapter  on  delivery.* 

§  658a.     Showing  deed  forgery  against  decedent. — In 

the  majority  of  States,  perhaps  in  all,  there  are  statutes 
prohibiting  a  person  having  a  pecuniary  interest  in  the 
result  of  a  suit  from  testifying  as  to  any  transaction 
with  or  statement  made  by  a  decedent  to  the  detriment 
of  the  estate.  There  was  placed  on  record  an  instrument 
purporting  to  be  on  its  face  a  deed,  property  acknowl- 
edged. The  original  deed  was  lost,  and  the  grantee  being 
dead,  an  action  was  brought  by  the  person  described  as  the 
grantor  in  the  deed  and  against  the  heirs  and  representa- 
tives of  the  grantee  to  cancel  the  deed  as  a  cloud  on  the 
grantor's  title.  The  question  was  presented  whether  the 
grantor  was  a  competent  witness  to  testify  that  the  deed,  which 

8  Goodsell   V.    Stinson,   7    Blackf.  Carson,  96  Ind.  412;  Fitzgerald  v. 

437.     See,  also,  Fitzgerald  v.  Goff,  Goff,  99  Ind.  28;  Freeman  v.  Pety, 

99  Ind.  28;  Weber  v.  Christen,  121  23    Ark.   449;    Ward   v.    Small,   90 

111.  91,  2  Am.  St.  Rep.  68;  Parker  Ky.  198. 

V.    Hill,    8    Met.    447 ;    Owings    v.  9  Ronan  v.  Meyer,  84  Ind.  390. 

Tucker,    90    Ky.    297;    Hoadley    v.  l  Samson    v.    Thornton,    3    Met. 

Hadley,   48   Ind.   452;   Goodwin   v.  275,  281,  27  Am.  Dec.  135. 

Owen,    55    Ind.    243;    Maynard    v.  2  See     §§     290-293.        See,     also, 

Maynard,  10  Mass.  456,  6  Am.  Dec.  Woodbury   v.    Fisher,   20   Ind.   387, 

146;   Woodbury  v.  Fisher,  20  Ind.  83  Am.  Dec.  325;   Hedge  v.  Drew, 

387,   83    Am.    Dec.    325 ;    Henry   v.  12  Pick.  141,  22  Am.  Dec.  416. 


CHAP.   XXII.]  REGISTRATION  OF  DEEDS.  ,    1209 

purported  to  have  been  signed  by  him,  was  not  in  fact  so 
signed,  but  was  a  forgery.  The  court  decided  that  the  denial 
by  the  grantor  of  tlie  execution  of  the  deed  did  not  necessarily 
involve  a  transaction  with  the  grantee  so  as  to  render  the 
grantor  incompetent  as  a  witness.  It  might  or  it  might  not, 
the  court  held,  depending  upon  the  particular  circumstances 
of  the  case.  Mr.  Justice  Mayfield,  wlio  delivered  the  opinion 
of  the  court  said :  "The  grantor  may  make  a  deed  to  the 
grantee  without  the  knowledge  or  consent  of  the  grantee,  and 
against  his  will.  The  grantor  to  a  deed  is  a  necessary  party 
to  its  execution,  but  the  grantee  is  not.  The  grantee,  therefore, 
cannot,  without  the  aid  or  consent  of  the  grantor,  make  him  a 
party  to  a  transaction  involving  the  execution  of  a  deed.  If  the 
grantee  should  forge  the  name  of  the  grantor  to  the  deed,  and 
forge  the  attestation  and  acknowledgment  thereto,  he  cannot 
make  it  a  transaction  with  the  grantor  by  filing  it  for  record 
and  having  it  recorded  without  the  knowledge  and  consent  of 
the  grantor.  Nor  would  the  fact  that  such  a  deed  was  thus  exe- 
cuted and  recorded  by  third  parties,  with  or  without  the  con- 
sent of  the  grantee,  make  it  a  transaction  with  the  purported 
grantor.  A  transaction  between  two  parties  necessarily  im- 
plies action,  consent,  knowledge,  or  acquiescence  on  the  part 
of  both.  Hence,  if  a  grantor  never,  in  truth  and  in  fact,  exe- 
cuted or  attempted  to  execute  an  alleged  deed  to  a  given  gran- 
tee, he  is  not  and  cannot  be  a  party  to  the  transaction,  which 
on  its  face  purports  to  be  the  execution  by  him  of  a  deed  to 
the  named  grantee. 

The  grantee,  third  parties,  nor  all  combined,  cannot,  witli- 
out  his  act,  word,  deed,  knowledge,  consent,  or  acquiescence, 
make  such  purported  grantor  a  party  to  a  transaction  as  to 
which  he  had  nothing  to  do  and  to  which  he  was  not  a  party. 
He  is  the  only  party  or  individual  who  can  make  himself  a 
party  thereto;  and  to  deny  to  him  the  right  to  testify  that  he 
was  n©t  a  party  to  the  transaction  would  be  to  put  it  within 
the  power  of  a  grantee  or  third  parties  to  absolutely  acquire  all 


1210 


THE  LAW  OF  DEEDS. 


[chap.  XXIl. 


his  property  without  his  knowledge  or  consent.    We  do  not  be- 
Heve  that  this  is  the  law."  * 


3  Blount  V.  Blount,  158  Ala.  242, 
21  L.R.A.(N.S.)  755,  48  So.  581. 
In  the  same  strain,  the  learned  jus- 
tice continued:  "Of  course,  if  he 
did,  in  fact  and  in  truth,  execute 
the  deed,  and  the  grantee  dies, 
and  in  fact  there  had  been  a  trans- 
action between  them,  then,  under 
the  statute,  he  is  incompetent  to 
testify  as  to  the  transaction  in- 
volved in  the  execution  of  the 
deed;  but  if  he  in  fact  made  no 
deed  at  all,  and  had  no  knowledge 
of  it,  he  was  not,  and  could  not 
be  made,  a  party  to  a  transaction 
which  merely  on  its  face  imports  a 
transaction  between  him  and  a  de- 
ceased person.  It  therefore  fol- 
lows that  if  it  be  conceded,  or  con- 
clusively proven,  that  a  grantor 
did  in  fact  execute  a  deed  to  the 
grantee,  and  that  it  constituted  a 
transaction  between  the  two,  and 
the  grantee  is  dead,  the  grantor  is 
incompetent  to  testify  as  to  such 
transaction. 

The  grantor  in  this  case  does  not 
concede  that  he  executed  the  deed, 
but  denies  it,  if  the  court  would 
let  him  do  so ;  and  the  evidence 
does  not  conclusively  prove  it. 
His  testimony  is  therefore  compe- 
tent to  determine  the  question  vel 
non  as  to  the  transaction  between 
the  grantor  and  grantee.  If  the 
court  or  jury  should,  from  all  the 
evidence,  find  that  the  grantor  was 
a  party  to  the  deed  or  transaction, 
then  he  is  an  incompetent  witness ; 
but  he  is  competent  until  this  is 
conclusively  shown,  or  it  is  con- 
ceded that  he  was  a  party  to  the 


transaction  in  question.  The  other 
party  to  the  suit  cannot  render  him 
incompetent,  by  testifying  that  he 
Avas  a  party  to  a  transaction  with 
a  deceased  person  through  whom 
they  claim,  or  by  showing  a  chain 
of  circumstances,  which  tend  to 
prove  he  was  a  party  to  such  trans- 
action. 

Filing  for  record  a  paper  pur- 
porting on  its  face  to  be  a  deed, 
and  recording  it,  makes  such  rec- 
ord, or  a  certified  copy  thereof, 
presumptive  evidence  of  the  execu- 
tion of  the  alleged  or  purported 
deed,  and  is  prima  facie  proof,  in 
such  case,  as  between  the  alleged 
parties  thereto,  of  the  recitals  in 
such  deed.  This  is  a  mere  prima 
facie  presumption,  which  the  stat- 
ute and  the  law  indulge,  and  is  not 
a  conclusive  presumption.  It  is 
open  and  proper  for  either  party  to 
dispute  it,  or  to  show  that  it  is  a 
forgery  or  a  fraud,  or  that  it  is 
void  for  any  sufficient  reason.  It 
is  not  like  a  judgment  in  a  suit 
between  the  parties  as  to  that  mat- 
ter. For  example,  if  the  purported 
deed  in  question  here,  which  was 
filed  for  record  and  recorded,  was, 
as  a  matter  of  fact,  a  forgery  by 
the  grantee  or  any  other  party, 
filing  and  recording  it  could  not 
make  it  valid.  It  may  in  certain 
cases  make  the  record,  or  a  certified 
copy  thereof,  presumptive  evidence 
of  the  recitals  therein;  but  it  is 
not  conclusive,  and  does  not  make 
a  forgery  a  valid  conveyance, 
though  it  might  aid  the  court  or 
jury   in   finding  the   instrument   in 


CHAP.    XXII.]  REGISTRATION   OF  DEEDS. 


1211 


§  659.  Equitable  mortgages. — At  one  time  it  was  con- 
sidered that  a  mortgage  of  an  equity  was  not  within  the  pur- 
view of  the  registry  acts,  and  hence  that  the  registration  of 
such  a  mortgage  was  not  constructive  notice.*  But  it  is  now 
estabhshed  tliat  the  poHcy  of  these  statutes  requires  all  liens 
and  encumbrances,  whether  legal  or  equitable,  affecting  the 
title  to  real  estate,  to  be  recorded,  and  therefore,  as  a  general 
proposition,  a  mortgage  of  an  equitable  interest  in  land, 
taken  without  notice,  is,  if  first  recorded,  preferred  to  any 
conveyance  of,  or  encumbrances  upon,  such  land.*  It  is  held 
that  a  person  in  possession  of  land  under  a  parol  contract  of 
sale  may  mortgage  his  interest,  and  although  the  mortgagor 


question  to  have  been  a  valid  con- 
veyance. However,  it  is  not  con- 
clusive on  judge  or  jury,— at  least, 
not  more  so  than  the  purported 
deed  itself  would  be,  if  its  execu- 
tion was  proven. 

We  are  not  now  writing  as  to 
the  probative  force  of  such  proof 
of  execution,  filing,  and  recording 
of  the  deed,  but  as  to  the  conclu- 
siveness of  such  matters  to  show  a 
transaction  between  the  grantor 
and  grantee.  We  hold  that  the 
grantor  in  such  document,  no  mat- 
ter what  its  nature,  character,  or 
recitals,  is  not  precluded,  by  such 
proof,  such  filing,  and  such  record- 
ing, from  showing  that  his  alleged 
signature  thereto  and  his  acknowl- 
edgment thereto  are  forgeries  and 
frauds,  perpetrated  without  his 
knowledge  or  consent.  If  this  be 
not  true,  one  man  can  acquire,  for 
his  estate  after  his  death,  all  the 
property  of  another,  without  the 
knowledge  or  consent  of  such  oth- 
er, and  yet  do  it  by  due  process  of 
law.  We  say  the  law  is  not,  and 
ought  not  to  be,  such  as  to  allow 


such  proceedings  or  results." 
Blount  V.  Blount,  supra.  A  dis- 
senting opinion  was  filed  by  Mr. 
Justice  McClellan  and  also  a  dis- 
senting opinion  by  Mr.  Justice 
Simpson.  The  latter  said:  There 
cannot  be  any  doubt  of  the  propo- 
sition that  a  deed  from  one  person 
to  another  is  a  transaction  between 
them.  The  statute  does  not 
prohibit  the  interested  party  only 
from  testifying  that  there  was  a 
transaction  between  them,  but  from 
testifying  'as  to  any  transaction'  or, 
as  one  court  has  interpreted  it  'in 
relation  to  any  transaction,'  wheth- 
er his  testimony  be  to  uphold  the 
transaction,  or  to  strike  it  down,  it 
is  testimony  as  to,  or  in  relation  to, 
a   transaction." 

*  Boswell  V.  Buchanan,  3  Leigh, 
365,  23  Am.  Dec.  280. 

5  Parkist  v.  Alexander,  1  Johns. 
Ch.  394 ;  Jarvis  v.  Butcher,  16  Wis. 
307;  General  Ins.  Co.  v.  United 
States  Ins.  Co.,  10  Md.  517,  69  Am. 
Dec.  174;  Crane  v.  Turner,  7  Hun, 
357;  Boyce  v.  Shiver,  3  S.  C  515. 


1212  THE  LAW  OF  DEEDS.         [CHAP.  XXU. 

may  not  have  acquired  the  absolute  fee,  such  mortgage  is  en- 
titled to  registration,  and  if  recorded,  is  notice  to  subsequent 
purchasers  and  encumbrancers.^  But  it  is  held  in  Illinois, 
where  one  has  only  an  equitable  title  derived  from  a  bond  for 
a  deed  which  is  not  recorded,  that  the  record  of  a  mortgage 
given  by  him  is  not  notice  to  a  subsequent  purchaser  of  the 
legal  title  from  one  in  possession  of  the  land.  The  title  of  a 
purchaser  of  this  description  is  not  derived  through  the  title 
of  the  mortgagor.  Hence,  he  will  not  take,  it  is  held,  sub- 
ject to  the  mortgage,  notwithstanding  the  fact  that  it  is  re- 
corded.'' 

§  660.  Assignment  of  mortgage. — Under  some  of  the 
early  statutes,  it  was  held  that  an  assignment  of  a  mortgage 
was  not  entitled  to  registration.  Thus,  in  Indiana,  before  the 
passage  of  the  statute  allowing  the  registration  of  the  assign- 
ments of  mortgages,  it  was  held  that  recording  them  did  not 
give  notice.'  But  in  that  State,  a  statute  now  exists  which 
permits  the  registration  of  such  assignments.'  And,  gener- 
ally, at  the  present  day,  either  by  the  express  provision  of  a 
statute,  or  by  judicial  construction  of  the  registry  acts,  assign- 
ments of  mortgages  are  considered  as  instruments  entitled  to 
registration.'^     But  the  mortgagor  himself  is  not  bound  by 

8  Crane   v.   Turner,   7   Hun,   357.       Morey,   2   Cow.  246,   14   Am.   Dec. 
7  Irish  V.  Sharp,  89  111.  261.     See      475 ;   Belden   v.   Meeker,  47   N.   Y. 

Halsteads  v.  Bank  of   Kentucky,  4  307;    Turpin    v.     Ogle,    4    Bradw. 

Marsh.  J.  J.  554;  Bank  of  Greens-  (111.)    611;    Smith    v.    Keohane,    6 

boro  V.  Clapp,  76  N.  Y.  482.  Bradw.    (111.)   585;  Cornog  v.  Ful- 

•Hasleman  v.  McKernan,  50  Ind.  ler,  30  Iowa,  212;  McClure  v.  Bur 

441;  Dixon  v.  Hunter,  57  Ind.  278.  ris,    16   Iowa,   591;   Vanderkemp  v 

9  Acts  of  1877,  Ind.  c.  58,  §  1.  Shelton,  11  Paige,  28;  Campbell  v, 
1  Bank   of   Indiana   v.    Anderson,  Vedder,   1   Abb.  N.   Y.  295 ;   James 

14    Iowa,    544,   83    Am.    Dec.    390;  v.  Johnson,  6  Johns.   Ch.  417;   St 

Bowling    V.    Cook,    39    Iowa,    200;  Johns  v.  Spalding,  1  Thomp.  &  C 

Tradesman's  etc.   Assn.  v.  Thomp-  483;    Pepper's    Appeal,    17    Pa.    St 

son,  31  N.  J.  Eq.  536;  Stein  v.  Sul-  373;  Leech  v.  Bonsall,  9  Phil.  204 

livan,   31    N.    J.    Eq.    409;    Fort    v.  Neide  v.  Pennypacker,  9  Phil.  86; 

Burch,    5    Denio,    187;    James    v.  Maryland  R.  Code,   1878,  art.  xliv, 


CHAP.   XXII.] 


REGISTRATION   OF  DEEDS. 


1213 


the  registration  of  the  assignment  of  the  mortgage.  He  should 
have  actual  notice  to  prevent  him  from  claiming  the  benefit 
of  payments  made  to  the  mortgagee.^  This  principle  has  been 
expressly  declared  by  statutes  in  several  States.  Thus,  select- 
ing Cahfornia  as  an  instance,  it  is  provided  by  the  code: 
"When  the  mortgage  is  executed  as  security  for  money  due, 
or  to  become  due,  on  a  promissory  note,  bond,  or  other  instru- 
ment, designated  in  the  mortgage,  the  record  of  the  assign- 
ment of  the  mortgage  is  not,  of  itself,  notice  to  a  mortgagor, 
his  heirs,  or  personal  representatives,  so  as  to  invalidate  any 
payment  made  by  them,  or  either  of  them,  to  the  person  hold- 
ing such  note,  bond,  or  other  instrument."  ^  But  the  mort- 
gagor is  entitled  to  this  protection  only  when  he  makes  a  pay- 
ment.   If  the  mortgagee  release  the  mortgage  without  the  pay- 


§§  37,  38;  Cal.  Civil  Code,  §  2934. 
In  Belden  v.  Meeker,  the  earlier 
case  of  Hoyt  v.  Hoyt,  8  Bosw.  511, 
was  overruled.  See,  also,  Larned 
V.  Donovan,  84  Hun  (N.  Y.)  533, 
32  N.  Y.  Supp.  731,  affd.  in  155  N. 
Y.  341,  49  N.  E.  942 ;  Breed  v.  Nat'l 
Bank,  68  N.  Y.  S.  68,  57  App.  Div. 
468,  aff'd  in  171  N.  Y.  648,  63  N. 
E.  1115;  Merrill  v.  Luce,  6  S.  D. 
354,  61  N.  W.  43;  Livermore  v. 
Maxwell,  87  la.  705,  55  N.  W.  37 ; 
Nashua  Trust  Co.  v.  Edwards  etc. 
Co.  99  la.  109,  68  N.  W.  587 ;  Swa- 
sey  V.  Emerson,  168  Mass.  118,  46 
N.  E.  426 ;  Ames  v.  Miller,  65  Neb. 
204,  91  N.  W.  250;  Weideman  v. 
Zielinska,  92  N.  Y.  S.  493,  102 
App.  Div.  163;  Butler  v.  Mazeppa 
Bank,  94  Wis.  351,  68  N.  W.  998. 
2  New  York  Life  Ins.  etc.  Co.  v. 
Smith,  2  Barb.  Ch.  82 ;  Ely  v.  Sco- 
field,  35  Barb.  330;  Jones  v.  Gib- 
bons, 9  Ves.  407,  410;  Rodgers  v. 
Peckham,  120  Cal.  238,  52  Pac.  483; 
Eggert  V.  Beyer,  43  Neb.  711,  62 
N.  W.  57;  Brewster  v.  Carnes,  103 


N.  Y.  556,  9  N.  E.  323;  Larned  v. 
Donovan,  155  N.  Y.  341,  49  N.  E. 
942. 

3  Cal.  Civil  Code,  §  2935.  Rod- 
gers V.  Peckham,  120  Cal.  238,  52 
Pac.  483.  That  these  statutes  do 
not  apply  ordinarily  where  the  in- 
strument secured  by  mortgage  is 
negotiable,  see:  Wilder  v.  Camp- 
bell, 110  Mich.  580,  35  L.R.A.  544, 
68  N.  W.  278;  Cornish  v.  Woolver- 
ton,  32  Mont.  456,  81  Pac.  4;  Eg- 
gert v.  Beyer,  43  Neb.  711,  62  N. 
W.  57.  For  other  States  in  which 
similar  provisions  exist,  see  Nevvr 
York,  Fay's  Dig.  of  Laws,  1874, 
vol.  1,  p.  585 ;  Minnesota,  Gen. 
Stats.  1878,  c.  40,  §  24;  Kansas, 
Dassler's  Stats.  1876,  c.  68,  §  3; 
Nebraska,  Gen.  Stats.  1873,  c.  61, 
§  39;  Comp.  Stats.  1881,  p.  392; 
Wisconsin,  Rev.  Stats.  1878,  p.  641, 
§  2244;  Oregon,  Gen.  Laws,  1872, 
p.  519;  Michigan,  Comp.  Laws, 
1871,  p.  1847;  Wyoming  Ty.,  Comp. 
Laws,  1876,  c.  3,  §  17. 


1214  THE  LAW  OF  DEEDS.  [CHAP.  XXII. 

ment  of  any  consideration,  the  release  is  inoperative  against 
the  assignee  'of  the  mortgage,  who  has  his  assignment  re- 
corded.* The  mortgagor  is  not  entitled  to  this  protection  of 
making  a  payment  to  the  mortgagee,  when  the  mortgage  is 
given  as  security  for  the  payment  of  a  negotiable  note,  and 
this  has  been  transferred  before  maturity.^  A  conveyance 
of  the  premises  to  the  mortgagee,  after  the  assignment  of 
the  mortgage,  will  not  cause  a  merger  of  the  mortgage  title.' 
But,  of  course,  as  against  all  other  persons  than  the  mortgagor, 
who  claim  title  other  than  through  the  mortgagee,  the  regis- 
tration of  the  assignment  of  the  mortgage  is  unnecessary.  The 
original  mortgage  still  stands,  and  is  not,  so  far  as  priority  of 
record  is  concerned,  affected  by  the  assignment^  In  New 
York,  it  has. been  held  that  a  power  of  attorney  to  assign  a 
mortgage  is  not  an  instrument  whose  registration  is  provided 
for  by  the  recording  acts.  The  record  of  such  an  instrument 
is  not  notice.®  And  in  the  same  State  a  similar  decision  was 
made  with  reference  to  a  power  of  attorney  to  collect  the 
amount  due  on  a  mortgage  and  to  release  it.^  An  unrecorded 
agreement  between  the  mortgagor  and  the  mortgagee,  that  the 
latter  should  release  from  the  operation  of  the  mortgage  a 

*  Belden  v.  Meeker,  47  N.  Y.  307 ;  ascertain     whether     the     mortgage 

Viele  V.  Judson,  82  N.  Y.  32.     But  has    not    been    previously    assigned, 

in   Massachusetts   it  is  held  other-  If   he   does    not   make   this    search, 

wise:     Wolcott    v.    Winchester,    15  he    cannot    claim    protection    as    a 

Gray,  461 ;  Welch  v.   Priest,  8  Al-  bona   fide   purchaser.      See   on   this 

len,  165;  Blunt  v.  Norris,  123  Mass.  subject,  Gillig  v.  Maass,  28  N.   Y. 

55,  25  Am.  Rep.  14.  191 ;  Oregon  Trust  Co.  v.  Shaw,  5 

5  Jones  V.  Smith,  22  Midi.  360.  Saw.   336;    Warner   v.   Winslow,    1 

6  Campbell  v.  Vedder,  3  Keyes,  Sand.  Ch.  430;  Purdy  v.  Hunting- 
174;  s.  c.  1  Abb.  N.  Y.  App.  Dec.  ton,  42  N.  Y.  334;  Burhans  v. 
295 ;  Purdy  v.  Huntington,  42  N.  Hutcheson,  25  Kan.  625,  37  Am. 
Y.  334,  1  Am.  Rep.  532.  Rep.  274;  Van  Keuren  v.  Corkins, 

'  Sprague    v.    Rockwell,    51    Vt.  6  Thomp.  &  C.  355. 

401 ;  Campbell  v.  Vedder,  3  Keycs,  ^  Williams     v.     Birbeck,     Hoffm. 

174;  Viele  v.  Judson,  82  N.  Y.  32.  359. 

A  person  who  afterward  purchases  ^  Jackson  v.  Richards,  6  Cowen, 

from  the  mortgagee  is  required  to  617. 


CHAP.    XXII.]  REGISTRATION   OF  DEEDS.  1215 

part  of  the  land,  upon  receiving  the  payment  of  a  specified 
sum,  does  not  bind  the  assignee  of  the  mortgage.^ 

§  661.  In  some  States  defective  deeds  if  recorded  im- 
part notice.- — In  a  few  of  the  States,  the  rule  seems  to  pre- 
vail that  a  deed  defectively  executed  or  unacknowledged  is, 
if  actually  recorded,  sufficient  notice  of  the  equities  created 
thereby.  In  Illinois,  where  this  rule  obtains,  Scates,  C.  J., 
cites  a  number  of  authorities  in  opposition  to  the  rule  he  pro- 
ceeds to  lay  down,  and  observes:  "I  have  referred  to  these 
decisions  to  show  that  they  were  made  upon  statutes  differ- 
ing from  ours;  some  excluding  from  registration  and  record, 
deeds,  etc.,  which  were  too  defective  to  pass  the  estate;  others, 
for  want  of  compliance  with  the  law  in  relation  to  acknowledg- 
ments. Our  statute  has  introduced  a  very  different  policy, 
both  as  to  the  kinds  and  character  of  the  instruments  and 
the  acknowledgments.  In  its  language  it  comprehends  every- 
thing that  may  relate  to  or  affect  the  title,  and  requires  all 
such  to  be  recorded  without  any  qualification  as  to  whether 
they  be  sufficient  in  law  or  not,  to  effectuate  the  object  pur- 
ported on  their  face.  It  would  seem  to  us  to  be  the  intention 
of  the  legislature,  in  general,  to  make  the  registry  and  re- 
cording books,  and  the  filing  of  levies,  etc.,  as  complete  a 
depository  as  possible  of  the  State,  of  land  titles,  as  they  may 
be  presented  and  aft'ected  by  conveyances,  contracts,  encum- 
brances, and  liens."  ^  In  that  State,  in  accordance  with  this 
construction  of  the  statute,  it  is  held  that  though  a  deed  of 
trust  executed  by  a  married  woman  to  secure  the  purchase 
money  due  on  the  premises,  may  be  void  as  a  conveyance  be- 
cause her  husband  does  not  unite  with  her  in  it,  yet,  neverthe- 
less, it  is  an  instrument  in  writing  relating  to  real  estate,  and 
after  registration  is  constructive  notice  to  all  subsequent  pur- 
chasers of  the  lien  of  the  vendor  for  the  unpaid  price.^    "It  is, 

1  Warner  v.  Winslow,  1  Sand.  Ch.  2  Reed  v.   Kemp,  16  111.  445,  451. 

430 ;  St.  John  v.  Spalding,  1  Thomp.  »  Morrison  v.  Brown,  83  111.  562. 

&  C.  483. 


1216  THE  LAW  OF  DEEDS.  [CHAP.  XXII. 

undoubtedly,"  said  Mr.  Justice  Dickey,  "the  policy  of  our  re- 
cording laws  that  every  instrument  in  writing  relating  to  land, 
when  once  recorded,  shall  be  notice  to  the  world  of  everything 
stated  in  such  instrument,  and  of  everything  which  is  neces- 
sarily implied  from  the  words  of  the  recorded  instrument. 
Those  appellants  claiming  as  subsequent  bona  -fide  purchasers 
or  encumbrancers  occupy  the  same  position  in  this  case  as 
they  would  have  done  had  this  instrument  (not  having  been 
recorded)  been  read  aloud  to  them  by  the  appellee,  before  they 
became  in  any  way  interested  in  this  question.  As  against  her 
grantee,  there  can  be  no  doubt  of  her  right  to  assert  a  vendor's 
lien.  As  to  the  others,  they  have  constructive  notice  of  her 
equities.  This  deed  of  trust  by  a  feme  covert  (her  husband 
not  joining  with  her  in  its  execution)  has  no  validity  as  a 
conveyance.  It  has  no  force  or  power  to  create  a  lien.  A 
married  woman  can,  however,  without  the  aid  of  her  husband, 
accept  a  deed  and  hold  title  to  land.  She  can  also  tell  the 
truth,  and  there  is  no  law  to  render  its  utterance  ineffectual. 
Under  our  statute,  as  to  the  effect,  as  notice  of  recording  in- 
struments in  writing  relating  to  land,  the  execution  and  re- 
cording of  this  instrument  becomes  equivalent  to  a  personal 
declaration  of  her  equitable  rights  to  each  of  appellants  claim- 
ing as  bona  tide  purchasers."  * 

§  662.  In  Kansas,  under  a  statute  providing  that  "no 
instrument  affecting  real  estate  is  of  any  validity  against  subse- 
quent purchasers  without  notice  unless  recorded,"  the  court 
decided  that  any  instrument  affecting  real  estate  would  be 
good  against  subsequent  purchasers  if  recorded.  It  said: 
"The  statute  nowhere  makes  an  acknowledgment  necessary  to 
the  validity  of  a  deed.  If  it  be  sufficient  to  affect  real  estate 
without  acknowledgment,  then  it  may  be  recorded,  and  if  it  be 
recorded,  then  subsequent  purchasers  are  charged  with  notice. 
The  statute  only  goes  to  the  extent  of  providing  that  if  a  deed 

*  Morrison  v.  Brown,  supra. 


CHAP.   XXII.]  REGISTRATION  OF  DEEDS.  1217 

be  acknowledged  and  certified  in  the  manner  prescribed,  the 
original  may  be  read  in  evidence,  without  proof  of  the  exe- 
cution; or,  if  recorded,  a  certified  copy  of  the  record,  upon 
proper  proof  of  inability  to  produce  the  original,  may  be  read." 
The  court  accordingly  held  that  a  deed  having  been  in  fact 
recorded  in  the  proper  office,  although  not  acknowledged,  was 
constructive  notice,^ 

§  663.  Registration  in  wrong  county. — The  various 
statutes  require  that  a  deed  shall  be  recorded  in  the  county 
in  which  the  land  conveyed  by  it  is  situated.  A  person  desirous 
of  ascertaining  the  condition  of  the  title  to  a  particular  piece 
of  land,  is  not  compelled  to  search  the  records  of  every  county 
in  the  State  to  accomplish  this  result.  If  he  examines  the  rec- 
ords of  the  county  in  which  the  land  lies,  he  does  all  that  the 
law  demands,  and  he  may  safely  act  upon  the  information 
thus  disclosed.  If  a  deed  is  recorded  in  a  different  county 
from  that  in  which  the  land  is  suitated,  the  record  cannot  oper- 
ate as  constructive  notice.^  And,  of  course,  it  is  immaterial 
that  the  deed  is  recorded  in  the  wrong  county  under  a  mistake 
as  to  the  true  locality  of  the  land.' 

§  664.  Land  in  two  counties. — Where  the  land  em- 
braced in  a  deed  is  situated  in  more  counties  than  one,  the 
deed  should  be  recorded  in  every  county  in  which  any  part  of 
the  land  lies.'    "The  object  of  the  registry  acts  was  to  enable 

»  Simpson  v.  Brown,  3  Kan.  172;  8  Perrin  v.  Reed,  35  Vt.  2;  Stev- 

Brown  v.  Simpson,  4  Kan.  76.  ens  v.   Brown,   3   Vt.  420,   23   Am. 

6  King  V.    Portis,    11   N.    C.   25;  Dec.    215;     Horsley    v.     Garth,    2 

Harper    v.    Tapley,    35    Miss.    506,  Gratt.  471,  44  Am.  Dec.  393;  Astor 

510;    Adams    v.    Hayden,    60   Tex.  v.  Wells,  4  Wheat.  466;  Stewart  v. 

223;    Perrin    v.    Reed,    35    Vt.    2;  McSweeney,    14   Wis.   468;    Crosby 

Stewart  v.  McSweeney,  14  Wis.  468,  v.  Huston,  1  Tex.  203;  Hundley  v. 

471;    Harris   v.    Monro   Cattle   Co.,  Mount,  8  Smedes  &   M.   387.     See 

84   Tex.   674;    Hawley   v.   Bullock,  Hill  v.  Wilson,  4  Rich.  521,  55  Am. 

29  Tex.  216.  Dec.   696;    Bagley  v.    Kennedy,   94 

''Adams  v.  Hayden,  60  Tex.  223.  Ga.  651.    That  the  record  of  a  deed 
See  Jones  v.  Powers,  65  Tex.  207. 
Deeds,  Vol.  II.— 77 


1218  THE  LAW  OF  DEEDS.  [CHAP.  XXIL 

a  person  about  to  purchase  lands,  to  ascertain  whether  they 
had  been  conveyed.  In  order  to  do  this,  the  place  where  he 
must  reasonably  be  led  to  make  the  inquiry  is  the  probate 
clerk's  office  of  the  county  where  the  land  lies.  That  is  the 
place  intended  by  law  for  recording  the  deed  of  conveyance; 
and  if,  upon  examination,  he  finds  no  conveyance  there,  he 
is  justified  in  acting  upon  the  belief  that  none  has  been  made. 
If  this  were  not  true,  a  person  could  not  safely  purchase  land 
lying  in  any  particular  county,  without  an  examination  of  the 
probate  clerk's  office  of  every  county  in  the  State;  for  the 
land  which  he  is  about  to  purchase  might  be  embraced  in  a 
deed,  conveying,  also,  land  in  some  other  county,  and  record- 
ed in  that  county."  ^  The  deed  is  properly  recorded  in  any 
county  in  which  a  part  of  the  land  is  situated.^  A  deed  so  re- 
corded in  one  county  is  considered  as  admissible  in  evidence, 
under  the  Michigan  statute,  in  any  other  county  as  to  any 
of  the  lands  described  in  it  that  he  within  the  State.^ 

§  665.     Registration  of  copy  of  deed  in  proper  county. 

— If  a  deed  has  been  recorded  in  the  wrong  county,  and  a 
copy  of  such  record  has  been  recorded  in  the  proper  county, 
the  record  of  the  copy  cannot  avail  as  notice  to  subsequent 
purchasers.  This  rule  rests  upon  the  ground  that  such  copy 
is  not  entitled  to  be  recorded,  and  hence  conveys  no  notice.^ 
In  a  case  where  it  was  insisted  that  a  record  in  one  county  of 
a  copy  of  a  deed  from  another  county  was  sufficient  to  put 
subsequent  purchasers  upon  inquiry,  the  court  said :    "To  hold 

in  but  one  of  the  two  counties  in  ^  Harper  v.  Tapley,  35  Miss.  S06, 

which  the  land  lies,  is  notice  of  the  509,  per  Handy,  J. 

grantee's  title  to   the   part   of   the  ^  Brown    v.    Lazarus,    25    S.    W. 

land    lying    in    the    other    county:  Rep.  71,  5  Tex.  Civ.  App.  81. 

see     Mattfeld     v.     Huntington,     17  2  Wilt    v.    Cutler,    38    Mich.    189. 

Tex.  Civ.  App.  716,  43  S.  W.  S3;  8  Lewis  v.  Baird,  3  McLean,  56; 

Perry   v.    Clift    (Tenn.)    54   S.   W.  Pollard  v.  Lively,  2  Gratt.  216. 

121. 


CHAP.   XXII. J  REGISTRATION   OF  DEEDS.  1219 

that  parties  ought  to  have  been  put  upon  inquiry  by  this  rec- 
ord would  be  precisely  the  same  thing  as  holding  them  af- 
fected with  notice.  This  would  be  giving  to  the  record  of  an 
instrument  not  entitled  to  be  recorded  the  same  force,  as  to 
notice,  that  we  give  to  one  legally  reduced  to  record.  We 
do  not  think  any  authority  can  be  found  in  support  of  this 
proposition.  On  the  contrary,  the  familiar  rule,  and  one  laid 
down  by  this  court,  is,  that  the  record  of  an  instrument  not 
entitled  by  law  to  be  recorded  is  of  no  avail  as  notice.*  It 
is  said  that  a  purchaser,  as  a  matter  of  fact,  receives  the  same 
information  from  the  record  of  a  copy  as  from  the  record  of 
an  original  instrument.  That  may  be  true.  But  the  broad  dif- 
ference is  this :  The  statute  only  authorizes  the  record  of 
original  instruments,  and  it  makes  that  record  conclusive  evi- 
dence of  notice.  It  matters  not  that  a  subsequent  purchaser 
has  not,  as  a  matter  of  fact,  seen  the  record.  If  the  instru- 
ment has  been  legally  recorded,  the  law  presumes  him  to  have 
seen  it,  and  holds  him  to  the  consequences  of  such  knowledge. 
Not  so  as  to  the  registry  of  a  copy.  It  may  be  that,  if  a  party 
can  be  clearly  proven  to  have  read  the  record,  he  should  be 
held  to  have  derived  from  it  the  same  degree  of  actual  knowl- 
edge that  he  would  have  derived  from  seeing  a  copy  of  an  in- 
strument in  the  hands  of  a  private  individual.  He  might  be 
considered  as  put  upon  inquiry.  But  the  law  does  not  presume 
him  to  have  read  the  record  of  an  instrument  not  authorized 
to  be  recorded."  ^ 

§  666.  Certified  copy  of  deed  recorded  in  wrong  coun- 
ty as  evidence.- — Related  to  the  subject  we  are  now  con- 
sidering is  the  question  whether  a  certified  copy  of  a  deed 
recorded  in  a  county  other  than  that  in  which  the  land  is  situ- 
ated, can  be  received  in  evidence  in  the  proper  county  to  af- 

*  Citing     Moore     v.     Hunter,     1       536,    per    Lawrence,    J.,    delivering 
Gilm.  317.  the  opinion  of  the  court. 

5  St.  John  V.  Conger,  40  111.  535, 


1220  THE  LAW  OF  DEEDS.  [CHAP.  XXII. 

feet  the  title  to  the  premises  described  in  the  deed.  It  is 
held  that  where  deeds  embrace  lands  lying  in  two  counties,  and 
are  recorded  in  only  one  of  them,  exemplifications  of  the  rec- 
ords are  competent  evidence  upon  the  proof  of  the  loss  of 
original  deeds  to  prove  their  contents  in  an  action  of  eject- 
ment for  the  recovery  of  the  premises  which  lie  in  that  county 
where  the  deeds  were  not  recorded.^  But  it  is  also  held  that 
an  authenticated  copy  of  a  deed  recorded  in  a  county  in  which 
the  land  does  not  lie,  is  not  competent  evidence  of  the  origi- 
nal, for  the  reason  that  "where  the  law  gives  no  authority  for 
the  reception  of  such  acknowledgment  or  proof  and  admis- 
sion to  recordation,  the  record  of  those  acts,  and  the  certifi- 
cate of  the  public  custodian  of  the  record,  are  entitled  to  no 
more  respect  than  if  the  same  had  been  performed  by  a  private 
individual."  ^ 

§  667.  Presumption  of  actual  notice  from  examina- 
tion of  records. — In  a  case  in  Pennsylvania,  the  land  con- 
veyed by  a  deed  was  situated  in  two  counties,  but  the  deed 
was  recorded  in  one  of  them  only.  Attached  to  the  deed, 
written  under  the  certificate  of  acknowledgment,  was  a  mem- 
orandum stating  that  part  of  the  land  had  been  sold.  It  was 
not  satisfactorily  shown  that  the  memorandum  referred  to 
was  written  before  the  execution  of  the  deed,  but  the  deed 

« Jackson  v.   Rice,  3  Wend.   180,  in  this  State.    The  deed  is  required 

20  Am.  Dec.  683;  Scott  v.  Leather,  to  be  recorded  in  this  State,  after 

3  Yeates,   184.     And  see  Lessee  of  it  has  been  duly  acknowledged,  and 

Delancey  v.   McKeen,    1   Wash.    C.  a  certified  copy  of  the  record  thus 

C.  354;  Conn  v.  Manifee,  2  Marsh.  made  is  evidence  under  the  statute. 

A.  K.  396,  12  Am.  Dec.  417;  Simms  The  recording  of   the  deed,  there- 

V.   Read,   Cooke,  345.  fore,  in  Kentucky,  if  clearly  shown, 

'  Pollard  V.  Lively,  2  Gratt.  216,  would   not  make   either  a   certified 

218.     In  Lewis  v.  Baird,  3  McLean,  or  sworn  copy  from  the  record  evi- 

56,  63,  it  is  said:    "But  if  the  deed  dence.     The   original   being   lost,   a 

were  a  conveyance  in  fee  of  these  sworn  copy  of  it   is  the  next  best 

military    lands,    a    record    of    it    in  proof."     See    Kennedy    v.    Harden, 

Kentucky,     though     duly     certified,  82  Ga.  230,  18  S    E.  Rep.  S4Z 
would  not  make  the  copy  evidence 


CHAP.   XXII.]  REGISTRATION   OF  DEEDS.  1221 

with  the  memorandum  was  recorded.  The  lower  court  in- 
structed the  jury  that  the  memorandum  on  the  original  deed, 
if  it  was  there  at  the  time  of  the  execution  of  the  deed,  con- 
stituted a  part  of  the  deed  and  was  legally  recorded;  and  as 
part  of  the  land  conveyed  by  the  deed  was  situated  in  the 
county  in  which  the  deed  was  recorded,  and  in  which  the 
plaintiff  resided,  that  such  record  was  notice  to  him  of  the 
contents  of  the  memorandum,  and  bound  him  also  as  to  the 
part  situated  in  the  other  county  in  which  the  deed  was  not 
recorded.  The  supreme  court  held  that  it  was  a  reasonable 
presumption  that  the  plaintiff  inspected  the  registry  in  the 
proper  county,  and  thus  acquired  actual  notice  of  the  convey- 
ance, but  reversed  the  case  because  the  registry  was  defective 
in  the  fact  that  the  memorandum  was  not  acknowledged,  and 
hence  was  not  entitled  to  be  recorded.*  Chief  Justice  Gibson 
on  the  first  point,  after  adverting  to  previous  decisions  that 
the  registry  of  a  deed  defectively  acknowledged  is  not  con- 
structive notice  as  to  land  in  the  proper  county,  and  is  deemed 
no  evidence  of  notice  whatever,  said :  "These  authorities  are 
not  controverted;  but  it  has  been  intimated  that  a  presump- 
tion may  arise  of  actual  inspection  of  the  defective  registry, 
which  is  said  to  amount  to  actual  notice  of  the  contents  of  the 
original  paper.  The  ground  of  the  supposed  presumption  is 
the  fact  that  the  plaintiff  purchased  along  with  the  tracts  in 
dispute,  certain  other  tracts  included  in  the  conveyance  to  the 
bank,  which  are  situate  in  Huntingdon  county,  where  the  con- 
veyance and  what  purports  to  be  the  memorandum  contain- 
ing a  recital  of  the  material  facts  were  registered  together; 
and  as  the  original  was  lost,  it  is  supposed  to  be  a  reasonable 
presumption  that  the  plaintiff  purchased  on  the  faith  of  the 
registry  in  that  county,  and  actually  inspected  it.  Nothing  is 
more  reasonable."  ^    In  New  Hampshire,  under  the  statute  in 

8  Kern  v.   Swope,  2  Watts,  75.  that    the     registry    was     defective. 

9  Kerns   v.    Swope,   2   Watts,   75.      The    memorandum    of    the    recital, 
The  learned  justice,  said,  however,      thought    to   be   material,    purports, 


1222 


THE  LAW  OF  DEEDS. 


[chap.  XXII. 


force  at  the  time  the  decision  was  rendered,  it  was  necessary 
that  a  deed  should  be  attested  by  two  witnesses.  A  deed,  how- 
ever, with  one  witness,  or  none  at  all,  was  good  between  tlie 


according  to  the  registry,  to  have 
been  indorsed  on  the  conveyance, 
but  underneath  the  certificate  of 
the  acknowledgment,  which  con- 
tains neither  reference  nor  allusion 
to  it ;  and  the  original  was  there- 
fore destitute  of  the  evidence  of 
authentication  required  by  the  law 
to  entitle  it  to  be  registered.  The 
registration,  therefore,  being  with- 
out the  authority  of  the  law,  was 
the  unofficial  act  of  the  officer, 
which  could  give  the  copy  no  great- 
er validity  than  the  original,  de- 
prived of  legal  evidence  of  execu- 
tion; nor  even  so  much,  for  an 
original  deed  exhibited  to  a  pur- 
chaser would  affect  him  though  it 
were  unaccompanied  with  the  evi- 
dence of  its  execution.  But  here 
the  registry  was  no  better  than  a 
copy  made  by  a  private  person  in 
a  memorandum-book,  from  which 
a  purchaser  would  be  unable  to 
determine  whether  there  was,  in 
fact,  an  indorsement  on  the  deed., 
or  whether  it  had  been  truly  copied, 
especially  when  neither  the  copy 
nor  an  exemplification  of  it  would 
be  legal  evidence  of  the  fact  in  a 
court  of  justice.  Unquestionably 
a  purchaser  would  not  be  affected 
by  having  seen  the  copy  of  a  con- 
veyance among  the  papers  of  an- 
other, or  an  abstract  of  it  in  a 
private  book.  The  whole  effect  of 
a  registry,  whether  as  evidence  of 
the  original  or  as  raising  a  legal 
presumption,  that  the  copy  thus 
made  equipollent  to  the  original 
had  been  actually  inspected  by  the 


party  to  be  affected,  is  derived  from 
the  positive  provisions  of  the  law; 
and  when  unsustained  by  these,  a 
registry  can  have  no  operation 
whatever.  Stripped  of  artificial 
effect,  it  is  but  the  written  declar- 
ation of  the  person  who  was  officer 
at  the  time,  that  he  had  seen  a 
paper  in  the  words  of  the  copy 
which  purported  to  be  an  original. 
But  to  say  nothing  in  this  place  of 
the  incompetency  of  such  a  declara- 
tion as  evidence  of  the  fact,  on 
what  principle  would  a  purchaser 
be  bound  to  attend  the  hearsay  in- 
formation of  one  who  is  not  qual- 
ified to  give  it.  Since  the  decision 
in  Connvallis'  case,  Toth.  254,  and 
Wildgoose  v.  Wayland,  Goulds, 
147,  pi.  67,  it  has  been  considered 
a  settled  principle  that  the  vague 
reports  of  strangers,  or  informa- 
tion given  by  a  person  not  inter- 
ested in  the  property,  are  insuffi- 
cient. It  has  been  held  even  that 
a  general  claim  may  be  disregarded. 
There  certainly  are  cases  which 
seem  to  cast  a  doubt  on  the  prin- 
ciple. But  as  is  properly  remarked 
by  Mr.  Sugden  in  his  treatise  on 
Vendors,  the  point  of  notice  to 
which  the  remark  of  Chief  Baron 
Hale  was  directed,  in  Fry  v.  Port- 
er, 1  Mod.  300,  did  not  relate  to  a 
purchaser.  In  Butcher  v.  Stapely, 
1  Vern.  364,  the  purchaser  was  af- 
fected with  notice,  of  which  it  is 
said,  there  was  no  other  direct  evi- 
dence than  what  might  have  been 
gleaned  from  the  conversation  of 
some  neighbors,  who  said  that  they 


CHAP.    XXII.]  REGISTRATION   OF  DEEDS*  1223 

parties.  A  deed  witnessed  by  one  witness  only  was  recorded. 
The  court  lield  that  the  grantee  in  such  a  deed  is  entitled  to  the 
land  against  a  subsequent  attachment  and  extent,  if  the  credit- 
or, at  the  time  of  his  attachment,  had  notice  of  the  deed,  and 
that  actual  notice  of  the  record  will  be  regarded  as  actual  no- 
tice of  the  prior  deed.^  "As  the  deed  in  this  case,"  said  Per- 
ley,  J.,  "was  not  executed  according  to  the  statute,  the  registra- 
tion as  such  is  inoperative;  that  is  to  say,  the  registration  is 
not  constructive  notice  of  the  conveyance.  But,  if  by  means 
of  that  registration  of  the  defective  deed,  the  defendants  had 
actual  notice  of  the  plaintiff's  title,  they  are  charged  with  the 
notice  as  in  other  cases.  The  defendants,  when  they  found  the 
copy  of  the  plaintiff's  deed  on  record,  must  have  understood 
that  the  intended  record  was  to  give  information  that  such  a 
deed  had  been  made,  and  that  the  plaintiff  claimed  the  land 
under  it.  This  must  be  regarded  as  actual  notice,  such  as 
every  reasonable  and  honest  man  would  feel  bound  to  act 
upon,"  * 

§  668.  Comments. — The  case  of  Kerns  v.  Swope  '  can 
scarcely  be  regarded  as  an  authority  for  the  proposition  that 
a  presumption  of  fact  exists  that  a  purchaser  inspects  the  rec- 
ords, and  thus  obtains  notice  of  the  contents  of  conveyances 
spread  upon  the  records,  affecting  the  title  not  only  to  lands 
situated  in  the  county  in  which  the  records  are,  but  also  of 
lands  situated  in  that  and  other  counties.  The  court  declares, 
it  is  true,  that  this  is  a  reasonable  presumption,  but  the  case 

had  heard  that  the  vendor  had  sold  seems  to  be  estabhshed  as   I  have 

the    estate    to    the    plaintiff.     It    is  stated  it,  having  been  recognized  by 

obvious  that  to  decree  on  parol  evi-  this  court  in  Peebles  v.  Reading,  8 

dence  of  loose  conversation  in  the  Serg.    &    R.    480,    and    Ripple    v. 

presence  of   the  party,   which  may  Ripple,  1  Rawle,  386." 

not  have  been  heard  or  understood  ^  Hastings  v.  Cutler,  4  Post.    (24 

by  him,  would  be  attended  with  ex-  N.  H.)  481. 

treme  danger  of  injustice:  and.  not-  2  Hastings  v.  Cutler,  supra. 

withstanding  this  decision,  the  rule  ^2  Watts,  75. 


1224  THE  LAW  OF  DEEDS.  [CHAP.  XXII. 

was  decided  on  the  point  that  the  portion  of  the  deed  in  ques- 
tion was  not  acknowledged,  and  hence  not  entitled  to  registra- 
tion. The  remarks  of  the  court,  therefore,  upon  the  question 
of  presumption  may  be  treated  as  obiter  dicta.  The  rule  in- 
dicated by  the  court  in  that  case  can  rest  upon  no  sound  rea- 
son. Whether  a  purchaser  inspects  or  does  not  inspect  the 
records  of  the  county  in  which  the  land  he  is  about  to  pur- 
chase is  situated,  cannot  be  made  a  matter  of  presumption.  It 
is  a  matter  of  fact,  of  evidence.  To  adopt  the  rule  that  ac- 
tual notice  should  in  such  a  case  be  presumed  is,  in  the  opinion 
of  the  author,  to  establish  a  doctrine  in  direct  conflict  with 
the  spirit  and  intent  of  the  whole  system  of  registration  laws. 
Constructive  notice  can  seldom  be  equivalent  to  actual  no- 
tice. Yet,  if  the  statutes  relative  to  registration  are  complied 
with,  a  subsequent  purchaser  is  bound  by  the  information  con- 
tained in  the  records,  whether  he  has  actual  knowledge  of  the 
facts  or  not.  But  the  whole  current  of  decision  is  to  the  ef- 
fect that,  to  give  the  record  this  character  of  affording  con- 
structive notice,  every  requirement  of  the  statute  must  be  ob- 
served. A  failure  in  any  essential  respect  renders  the  record 
ineffectual  as  constructive  notice.  In  Hastings  v.  Cutler,*  a 
more  reasonable  rule  is  laid  down,  yet  one  to  which  objection 
may  be  raised.  It  is  not,  however,  unreasonable  to  require  a 
person  who  has  actual  knowledge  that  there  is  a  deed,  valid 
between  the  parties  in  existence,  to  make  inquiry  to  ascertain 
the  rights  of  the  grantee.  But  it  is  presumed  that,  under  this 
decision,  it  would  first  be  necessary  to  show  such  actual  knowl- 
edge by  competent  evidence.  No  presumption  can  result  that 
a  purchaser  had  such  knowledge. 

§  669.     Change  of  boundaries  of  county. — If  a  deed 

has  been  registered  in  the  county  in  which  the  land  lies,  it  is 
not  necessary  to  record  it  again  in  a  new  or  other  county 
into  which  the  former  county  may  be  divided,  or  to  which  it 

*4  Fost.  481. 


CHAP.   XXII.]  REGISTRATION   OF   DEEDS. 


1225 


may  be  annexed.  "We  are  not  apprised  of  any  statute  which 
would  require  an  owner  of  land,  having  his  deed  properly  reg- 
istered in  the  county  where  the  land  lies,  to  have  his  convey- 
ance again  recorded  as  often  as,  by  subdivisions  and  changes, 
the  land  may  fall  into  a  new  or  different  county.  Very  pru- 
dent men  may  use  such  precautions.  But  it  is  not  necessary 
for  the  protection  of  their  rights,  the  first  registry  being  am- 
ply sufficient."  ^  If  the  land,  at  the  date  of  the  deed,  lies  in 
one  county,  but  if,  at  the  time  it  is  presented  for  registration, 
a  new  county  has  been  carved  out  of  the  old  one,  which  in- 
cludes the  land  described  in  the  deed,  the  conveyance  must  be 
recorded  in  the  new  county,  and  not  in  the  old.^ 


5  McKissick  v.  Colquhoun,  18 
Tex.  148.  When  a  deed  is  record- 
ed in  the  county  in  which  the  land 
lies,  the  fact  that  the  land  is  after- 
wards included  in  a  newly  made 
county  does  not  require  the  deed 
to  be  recorded  in  the  new  county : 
Whiddon  v.  Lumber  Co.  98  Ga.  700, 
25  S.  E.  770;  Bivings  v.  Gosnell, 
133  N.  C.  574,  45  S.  E.  942  (citing 
text).  If  a  deed  is  properly  re- 
corded in  the  county  in  which  the 
land  was  situated  at  the  time  of 
recording,  a  subsequent  change  of 
county  does  not,  under  most  stat- 
utes, require  a  new  recordation : 
Green  v.  Green,  103  Gal.  108,  Zl 
Pac.  188.  See,  also,  Koerpe  v.  R. 
Co.  40  Minn.  132,  41  N.  W.  656. 

6  Garrison  v.  Hayden,  1  Marsh. 
J.  J.  222,  19  Am.  Dec.  70.  This 
case  was  an  action  of  ejectment, 
and  the  plaintiff,  in  deraigning  title, 
offered  a  deed  certified  by  the  clerk 
of  the  county  court  of  Fayette  for 
the  land,  acknowledged  and  record- 
ed in  that  county.  The  land,  at 
the  date  of  the  deed,  was  in  Fay- 
ette county,  but,  at  the  time  it  was 


acknowledged,  was  in  Jessamine, 
which  county  had,  in  the  interval 
between  the  date  and  acknowledg- 
ment, been  established.  The  nisi 
priiis  court  rejected  the  certified 
copy  of  the  deed,  and  this  was 
claimed  to  be  error.  The  court 
said :  "A  proper  construction  of 
either  the  letter  or  object  of  the 
act  of  assembly,  which  requires 
deeds  for  land  to  be  recorded  in 
the  county  in  which  the  land  lies, 
must, sustain  the  opinion  of  the  cir- 
cuit court.  The  deed  must  be  re- 
corded in  the  county  in  which  the 
land  lies  at  the  time  the  deed  is 
deposited  for  registration.  When 
a  party  is  about  to  deposit  his  deed 
to  be  recorded,  the  act  of  assembly 
addresses  him  in  this  language: 
'Have  it  recorded  in  the  county  in 
which  the  land  lies ;  that  is,  the 
county  in  which  the  land  lies  now 
when  you  make  the  deposit.'  The 
object  of  this  requisition  is  to  give 
notice  in  the  county  of  the  transfer- 
ence of  the  title  to  the  land.  As, 
therefore,  the  clerk  of  Fayette  had 
no   legal   right   to    receive   the   ac- 


1226  THE  LAW  OF  DEEDS.  [cHAP.  XXIt. 

§  669a.  Purchaser  for  nominal  consideration  as  pur- 
chaser for  value. — The  question  as  to  the  right  of  a  pur- 
chaser for  a  purely  nominal  consideration  to  invoke  the  bene- 
fit of  the  recording  statutes  has  been  decided  differently  in 
different  jurisdictions.  In  a  case  recently  decided  in  Wiscon- 
sin, it  was  held  that  a  person  taking  a  quitclaim  deed  to  prop- 
erty from  the  devisee  of  a  former  owner  for  a  nominal  con- 
sideration, acquires  no  rights  as  against  one  who  purchased 
from  such  owner,  but  whose  deed,  by  mistake,  had  been 
omitted  from  the  record,  and  who  had  paid  taxes  on  the  prop- 
erty for  a  number  of  yearsJ  The  court  says :  "Unquestion- 
ably the  defendant  knew  that  he  was  purchasing  a  suspicious 
and  speculative  title  for  a  sum  hardly  more  than  sufficient  to 
defray  the  cost  of  executing  the  deed.  The  statute  was  not 
enacted  to  protect  one  whose  ignorance  of  the  title  is  deliber- 
ate and  intentional,  nor  does  a  mere  nominal  consideration 
satisfy  the  requirement  that  a  valuable  consideration  must  be 
paid.  Its  purpose  is  to  protect  the  man  who  honestly  believes 
he  is  acquiring  a  good  title,  and  who  invests  some  substantial 
sum  in  reliance  on  that  belief.  The  fact  that  the  supposed 
title  could  be,  and  was,  purchased  for  a  mere  nominal  consid- 
eration, is  certainly  constructive  notice  of  the  invalidity  of 
the  title,  and  sufficient  of  itself  to  put  the  purchaser  upon  in- 
quiry." *    A  similar  decision  was  made  in  New  York  where 

knowledgment,     his     certificate    of  Bell  v.  Fry,  5  Dana,  344.     Where 

the  fact  of  acknowledgment  is  no  there    has    been    a   change    in    the 

authentication   of   the    deed.       The  boundaries  of  a  county,  a  deed  is 

recording  of  a  deed  not  being  nee-  properly  recorded  in  the  county  in 

essary  to  pass  the  title,  as  between  which  the  land  was  situated  at  the 

the  parties  to  it,  proof  of  the  orig-  time  of  recording:    Green  v.  Green, 

inal    by    the    subscribing    witnesses  103     Cal.     108.     See     Kennedy     v. 

would  have  been  sufficient  for  the  Harden,  92   Ga.   230. 

plaintiff    in    this   case.     But,    as    he  '  Wis.    etc.    Co.    v.    Selover,    135 

chose  not  to  offer  such  proof,  and  Wis.    594,    16    L.R.A.(N.S.)     1073, 

relied  on  the  certificate  of  the  Fay-  116  N.  W.  265. 

ette  clerk,  he  must  abide  the  con-  8  DeWitt  v.  Perkins,  22  Wis.  473; 

sequence  of  his  error."     See,  also,  Hoppin  v.  Doty,  25  Wis.  573. 


CHAP.    XXII.]  REGISTRATION   OF  DEEDS.  1227 

a  farm  worth  twenty  thousand  dollars  was  conveyed  by  a  father 
to  his  daughter  in  consideration  of  ten  dollars  and  an  under- 
taking to  pay  the  net  proceeds  of  the  place  to  the  father  for 
life  and  after  his  death  to  pay  a  certain  portion  thereof  to  his 
wife  and  another  daughter.^  The  court  observes  that  the 
good  faith  of  a  purchaser  may  be  seriously  impaired,  if  not 
destroyed,  by  the  inadequacy  of  the  price  at  which  the  prop- 
erty is  offered.  "If  the  sum  which  the  seller  is  willing  to  take 
is  grossly  disproportionate  to  the  value  of  the  thing  which  is 
the  subject  of  the  negotiation,  it  is  strong  proof  of  a  defective 
title,  and  sufficient  to  put  a  prudent  man  upon  inquiry;  and,  if 
the  buyer  neglects  to  prosecute  diligently  such  inquiry,  he  may 
not  be  awarded  the  standing  of  a  bona  fide  purchaser."  *  How- 
ever, in  some  jurisdictions  the  rule  as  just  stated  is  not  recog- 
nized, and  it  is  held  that  the  payment  of  a  consideration, 
though  nominal  is  suflicient  to  give  the  purchaser  precedence 
over  a  prior  unrecorded  deed.^ 

§  670.     Purchaser   under   quitclaim   deed — Comments. 

— The  law  is  not  uniform  on  the  question  whether  a 
grantee  under  a  quitclaim  deed  is  to  be  considered  a  bona  fide 
purchaser,  entitled  to  the  protection  of  the  registry  laws.  By 
a  conveyance  of  this  character  he  succeeds  to  such  title  only 
as  the  grantor  possesses  at  the  time  the  deed  is  executed.^    He 

»Ten  Eyck  v.  Witbeck,  135  N.  Y.  46  N.  W.  1132.     And  see  Atty.  Gen. 

40,  31  N.  E.  994,  31  Am.  St.  Rep.  v.  Abbott,  154  Mass.  323,  13  L.R.A. 

809,  disapproving  Hendy  v.   Smith,  251,  28  N.  E.  346;   Smith  v.   Phil- 

49  Hun,  510,  2  N.  Y.   Supp.   535;  iips,  9  Old.  297,  60  Pac.  117. 

Webster    v.     Van     Steenbergh,    46  2  Strong    v.    Whybark,    204    Mo. 

Barb.    211.  341,    12   L.R.A.(N.S.)    240,    102   S. 

lAnd    see   Dunn    v.    Barnum,   51  W.  968;  Ennis  v.  Tucker,  78  Kan. 

Fed    355    2  C.  C.  A.  265,  10  U.  S.  55,  96  Pac.  140.     And  see  Booker  v. 

App.  86;  Hufif  v.  Maroney,  23  Tex.  Booker,  208  III.  529,  70  N.  E.  709, 

Civ.  App.  451.  56  S.  W.  754;  Green  100    Am.    St.    Rep.    250;    Hart    v. 

V.  Robertson,  30  Tex.  Civ.  App.  236,  Gardner,  81  Miss.  650,  33  So.  442. 

70    S.    W.    345;    Limn    v.    Scarbor-  ^  See     Mclnerney     v.     Beck,     10 

ough    (Tex.    Civ.    App.)    35    S.   W.  Wash.    515;    Spanlding   v.   Bradley, 

508;   Gress   v.   Evans,    1   Dak   387,  79  CaL  449. 


1228  THE  LAW  OF  DEEDS.  [CHAP.  XXII. 

cannot  claim  the  benefit  of  any  title  subsequently  acquired 
by  his  grantor.  It  has  in  some  States  been  held  that  as  he  ob- 
tains the  grantor's  title  only,  he  acquires  nothing  at  all,  if  the 
grantor  has  previously  transferred  this  title  to  another,  and 
that  it  is  immaterial  whether  he  has  notice  of  this  fact  or  not. 
On  the  other  hand,  it  is  considered  in  other  States,  that  this 
conveyance  is  effectual  to  convey  such  title  as  the  grantor 
possesses,  and  such  title  as,  under  the  registry  laws,  the  gran- 
tee has  a  right  to  assume,  is  vested  in  the  grantor. 

§  671.  View  that  such  purchaser  is  not  entitled  to  the 
protection  of  the  registry  acts. — The  doctrine  that  a  pur- 
chaser under  a  quitclaim  deed  is  not  a  bona  fide  purchaser 
without  notice,  prevails  in  many  courts,  and  is  supported  by 
eminent  authority.  It  was  held  in  some  of  the  earlier  de- 
cisions of  the  United  States,  that  "a  purchaser  by  a  deed  of 
quitclaim,  without  any  covenant  of  warranty,  is  not  entitled  to 
protection  in  a  court  of  equity  as  a  purchaser  for  a  valuable 
consideration  without  notice ;  and  he  takes  only  what  the  vend- 
or could  lawfully  convey."  *  But  in  more  recent  cases  this 
rule  seems  no  longer  to  be  recognized,  and  it  is  said  by  Mr. 

*  Oliver    V.    Piatt,    3    How.    333.  cedence    over    anotlier    conveyance 

See,    also,    May    v.    Le    Claire,    11  prior  to  the  quitclaim  in  point  of 

Wall.   217,   232,  20  L.   ed.   50,   53;  time  but  not  recorded:    Fowler  v. 

Villa   V.   Rodriguez,    12   Wall.   323,  Will,  19  S.  D.  131,  102  N.  W.  598, 

20  L.   ed.   406;   Van   Rensselaer   v.  117  Am.   St.   Rep.  938,  8  A.  &   E. 

Kearney,    11    How.   297,    13    L.    ed.  Ann.  Cas.  1093;  Beakley  v.  Robert, 

703;  Hanrick  v.  Patrick,  119  U.  S.  120  Mich.  209,  79  N.  W.  193;  Mes- 

156,  30  L.   ed.  396;   Gest  v.   Pack-  senger  v.  Peter,  129  Mich.  93,  88  N. 

wood,  34  Fed.   Rep.  368;   Hastings  W.  209;   Rosenbaum  v.  Foss,  7  S. 

V.  Nissen,  31  Fed.  Rep.  597;  Wood-  D.  83,  63  N.  W.  538;  Citizens'  Bank 

ward   V.   Jewell,   25    Fed.    Rep.    6;  v.   Shaw,   14  S.  D.   197,  84  N.  W. 

Baker  v.  Humphrey,  101  U.  S.  494,  779;    Va.    etc.    Coal    Co.    v.    Fields, 

25  L.   ed.   1065;  Dickerson  v.   Col-  94  Va.  102,  26  S.  E.  426.     See,  also, 

grove,  100  U.  S.  578,  25  L.  ed.  618.  Wickham  v.   Henthorn,  91   la.  242, 

And  see,  also.  White  v.  McGarry,  2  59   N.    W.   276;    Woody  v.    Strong 

Flip.   572.     A   duly   recorded   quit-  (Tex.)    100  S.  W.  801;   Minn.  etc. 

claim  deed  is  not  entitled  to  pre-  R.  Co.  116  la.  681,  88  N.  W.  1082. 


CHAP.   XXII.] 


REGISTRATION   OF  DEEDS. 


1229 


Justice  Field :  "The  character  of  a  bona  Me  purchaser  must 
depend  upon  attending  circumstances  or  proof  as  to  the  trans- 
action, and  does  not  arise,  as  often,  though  we  think,  inadver- 
tently said,  either  from  the  form  of  the  conveyance  or  the 
presence  or  the  absence  of  any  accompanying  warranty. 
Whether  the  grantee  is  to  be  treated  as  taking  a  mere  specu- 
lative chance  in  the  property,  or  a  clear  title,  must  depend  upon 
the  character  of  the  title  of  the  grantor  when  he  made  the 
conveyance;  and  the  opportunities  afforded  the  grantee  of  as- 
certaining this  fact  and  the  diligence  with  which  he  has  prose- 
cuted them,  will,  besides  the  payment  of  a  reasonable  consider- 
ation, determine  the  bona  fide  nature  of  the  transaction  on  his 
part.^    In  a  still  later  Federal  case  it  is  said :    "The  riper  con- 


5  Moelle  V.   Sherwood,   148  U.   S. 
21,  30,  37  L.  ed.  350,  354.    In  Unit- 
ed States  V.  California  and  Oregon 
Land  Co.   148  U.   S.  31.  45,  37  L. 
ed.   354,    361,    Mr.   Justice    Brewer 
said:    "As  against  these  evidences 
and  conclusions  of  good  faith,  but 
a   single  proposition  is   raised,   one 
upon  which  the  dissenting  judge  in 
the  circuit  court  of  appeals  rested 
his  opinion,  and  that  is  the  propo- 
sition   that    the    conveyances    from 
the  road  company  were  only  quit- 
claim deeds,   and  that  a  purchaser 
holding  under  such  a  deed  cannot 
be   a   bona   f.de   purchaser;    and   in 
support    of    this    proposition    refer- 
ence   is    made    to    the    following 
cases  in  this  court:    Oliver  v.  Piatt, 
3  How.  333,  410,  11  L.  ed.  622,  657; 
Van     Rensselaer     v.     Kearney,     11 
How.  297,  13  L.  ed.  703 ;  May  v.  Le 
Claire,  11  Wall.  217,  232,  20  L.  ed. 
50,  53;  Villa  v.  Rodrigue,  12  Wall. 
323,    20   L.    ed.    406;    Dickerson   v. 
Colgrove,  100  U.  S.  578,  25  L.  ed. 
618;    Baker   v.    Humphrey,    101    U. 
S.  494,  25  L.  ed.  1065;  Hanrick  v. 


Patrick,   119  U.   S.    156,  30  L.   ed. 
396.     The    argument    briefly    stated 
is  that  he  who  will  give  only  a  quit- 
claim deed  in  effect  notifies  his  ven- 
dee   that    there    is    some    defect    in 
his  title,  and  the  latter  taking  with 
such  notice,  takes   at  his  peril.     It 
must  be   confessed   that   there   are 
expressions   in  the  opinions  in  the 
cases   referred  to  which  go  to  the 
full     length     of     this     proposition. 
Thus,   in   Baker  v.   Humphrey,   101 
U.  S.  494,  499,  25  L.  ed.  1065,  1067, 
Mr.   Justice   Swayne,    in   delivering 
the  opinion  of  the  court,  uses  this 
language:     'Neither    of    them    was 
in  any  sense  a  bona  Me  purchaser. 
No  one  taking  a  quitclaim  deed  can 
stand  in  that  relation.'     Yet  it  may 
be  remarked  that  in  none  of  these 
cases  was  it  necessary  to  go  to  the 
full    extent    of    denying    absolutely 
that  a  party  taking  a  quitclaim  deed 
could    be    a    bona    Me    purchaser; 
and  in  the  later  case  of  McDonald 
v.  Belding,  145  U.  S.  492,  36  L.  ed. 
788,  it  was  held,  in  a  case  coming 
from    Arkansas,    and    in    harmony 


1230  THE  LAW  OF  DEEDS.  [CHAP.  XXIL 

sideration  and  more  thoughtful  consideration  of  later  years 
have  exploded  the  fallacy  upon  which  the  earlier  decisions  of 
the  Supreme  Court  rested,  and  have  led  the  court  to  adopt 
the  rule,  which  has  now  become  firmly  established,  both  upon 
reason  and  authority,  that  the  innocent  purchaser  under  a 
quitclaim  deed  may  acquire  the  title  under  the  registry  stat- 
utes as  against  the  holder  of  a  prior  unrecorded  deed  from  the 
same  grantor  notwithstanding  the  fact  that  the  latter  had  no 
title,  and  had  nothing  to  convey,  when  he  executed  his  second 
deed."  ®  In  Iowa  the  rule  stated  by  the  court  is :  "One  hold- 
ing title  under  such  a  deed  is  not  to  be  regarded  as  a  bona  fide 
purchaser  without  notice  of  equities  held  by  others."  '  But 
language  to  a  contrary  effect  is  found  in  a  previous  decision 
in  that  State.  The  court,  however,  subsequently  claimed  that 
in  that  case  the  question  was  not' presented,  and  that  the  only 
point  decided  was  that,  under  the  recording  laws,  a  purchaser 
under  a  quitclaim  deed  acquired  a  prior  right  to  one  claiming 
under  an  unrecorded  bond  for  a  deed  of  which  he  had  no  no- 
tice, because  the  quitclaim  deed  conveyed  the  legal  title.'     In 

with    the    rulings    of    the    supreme  vious   opinions,   were   distinctly  af- 

court  of  that  State,  that  while  or-  firmed." 

dinarily  a  person  holding  under  a  ^  Boynton    v.    Haggart,    120   Fed. 

quitclaim  deed  may  be  presumed  to  819,  57  C.  C.  A.  301. 

have   had  knowledge   of    imperfec-  '  Watson  v.  Phelps,  40  Iowa,  482, 

tions  in  his  vendor's  title,  yet  that  483;     Raymond     v.     Morrison,     59 

the  rule  was  not  universal,  and  that  Iowa,    371 ;    Smith    v.    Dunton,    42 

one  might  become  a  bona  fide  pur-  Iowa,    48;    Springer    v.    Bartle,    46 

chaser   for  value  although   holding  Iowa,    688;     Besore    v.    Dosh,     43 

under  a  deed  of  that  kind;  and  in  Iowa,  211,  212;  Pastel  v.  Palmer,  71 

that    case    the    grantee    so    holding  Iowa,    157,    32    N.    W.    Rep.    257; 

was  protected  as  a  bona  Ude  pur-  Butler  v.  Barkley,  61  Iowa,  491,  25 

chaser;  while  in  the  case  of  Aloelle  N.   W.    Rep.   747;    Steele   v.    Sioux 

v.    Sherwood,    just    decided,    ante,  Valley  Bank,  79  Iowa,  339,  18  Am. 

21,    the    general    question    was    ex-  St.    Rep.    370;    Light    v.    West,    42 

amined,   and   it   was   held   that  the  Iowa,    138;    Pleasants    v.    Blodgett, 

receipt  of  a  quitclaim  deed  does  not  39  Neb.  741,  42  Am.  St.  Rep.  624; 

of  itself  prevent  a  party  from  be-  Wickham  v.  Henthorn,  91   la.  242, 

coming  a  bona  fide  holder,  and  the  59  N.  W.  276. 

expressions  to  the  contrary,  in  pre-  *  Springer  v.  Bartle,  46  Iowa,  690. 


CHAP.   XXII.]  REGISTRATION   OF  DEEDS.  1231 

Minnesota,  the  statute  declared  that:  "A  deed  of  quitclaim 
and  release,  of  the  form  in  common  use,  shall  be  sufficient  to 
pass  all  the  estate  which  the  grantor  could  lawfully  convey 
by  deed  of  bargain  and  sale."  Commenting  upon  this  lan- 
guage, the  court  said :  "If  the  legislature  intended  by  the 
use  of  the  term  'lawfully  convey,'  to  limit  the  estate  conveyed 
to  such  as  the  grantor  had  a  legal  right  to  convey,  then,  as 
he  may  not  lawfully  convey  land  which  he  has  already  con- 
veyed to  another,  but  may  release  any  real  or  fancied  interest 
remaining  in  him,  nothing  passes  beyond  his  actual  interest 
at  the  time  of  the  conveyance,  whatever  that  may  be.  When, 
therefore,  a  person  relies  on  a  mere  quitclaim  of  the  interest 
which  a  party  may  have  in  property,  he  does  so  at  his  peril, 
and  must  see  to  it,  that  there  is  an  interest  to  convey.  He  is 
presumed  to  know  what  he  is  purchasing,  and  takes  his  own 
risk."  ^  And  hence  in  that  State,  a  purchaser  under  a  quit- 
claim deed  is  not  regarded  as  a  purchaser  entitled  to  the  bene- 
fits of  the  registration  acts.^  But  the  statute  in  that  State  has 
been  changed,  and  a  purchaser  under  a  quitclaim  deed  is  re- 
garded as  a  bona  fide  purchaser.^  This  is  also  the  rule  in 
other  States '  and  South  Dakota.* 

And  see,  also,  Steele  v.  Sioux  Val-  v.  Levi,  67  Tex.  359,  3  S.  W.  Rep. 

ley   Bank,   79   Iowa,   339,   7  L.R.A.  444;    Harrison   v.   Boring,  44   Tex. 

524,  18  Am.  St.  Rep.  370.  255 ;    Fletcher    v.    Ellison,    1    Tex. 

^  Martin  v.  Brown,  4  Minn.  282,  Civ.   Cas.  661 ;   Thoon  v.   Newsom, 

292,  per  Emmett,  C.  J.  64  Tex.  161,  S3  Am.  Rep.  747 ;  Tay- 

1  Marshall  v.  Roberts,  18  Minn.  lor  v.  Harrison,  47  Tex.  454,  26 
405,  10  Am.  Rep.  201;  Everest  v.  Am.  Rep.  304;  Woody  v.  Strong, 
Ferris,  16  Minn.  26.  See,  also,  45  Tex.  Civ.  App.  256,  100  S.  W. 
Hope  v.  Stone,  10  Minn.   152.  801 ;  Smith's  Heirs  v.  Bank  of  Mo- 

2  Strong  V.  Lynn,  38  Minn.  315,  bile,  21  Ala.  125;  Walker  v.  Miller, 
37  N.  W.  Rep.  448;  Prentice  v.  11  Ala.  1067,  1082,  1084;  Barclift  v. 
Duluth  Storage  Co.  58  Fed.  Rep.  LiUie,  82  Ala.  319,  2  So.  Rep.  120; 
437;  Dunn  v.  Barnum,  51  Fed.  355,  Derrick  v.  Brown,  66  Ala.  162; 
2  C.  C.  A.  265.  O'Neal  v.  Seixas,  85  Ala.  80,  4  So. 

3  Rodgers  v.  Burchard,  34  Tex.  Rep.  745.  See,  also,  Bragg  v. 
441,  7  Am.  Rep.  283;  Graham  v.  Paulk,  42  Me.  502;  Boon  v.  Chiles, 
Hawkins,  38  Tex.  628;  Richardson  10  Peters,  177,  9  L.  ed.  388;  Vat- 


1232  THE  LAW  OF  DEEDS.  [CHAP.  XXIL 

§  672.  View  that  such  purchaser  is  entitled  to  the 
full  protection  of  the  recording  laws. — But  in  other 
States,  and  more  reasonably,  as  it  seems  to  us,  it  is  held  that 
a  purchaser  under  a  quitclaim  deed  who  becomes  such  in  good 
faith  and  for  a  valuable  consideration,  may  claim  the  benefit 
of  the  recording  laws,  and  that  his  conveyance,  if  first  record- 
ed, will  prevail  over  a  prior  deed  of  bargain  and  sale.  This 
is  the  rule  adopted  in  California.  In  that  State,  Mr.  Justice 
Belcher  said :  "There  can  be  no  doubt  upon  the  question  pre- 
sented, if  real  estate,  or  an  interest  in  real  estate,  can  be  aliened 
or  assigned  by  a  quitclaim  deed.  To  alien  or  alienate  means 
simply  to  convey  or  transfer  title  to  another.  In  this  State, 
from  the  earliest  times,  quitclaim  deeds  have  been  in  every- 
day use  for  the  purpose  of  transferring  title  to  land,  and  have 
been  considered  as  effectual  for  that  purpose  as  deeds  of  bar- 
gain and  sale.  It  is  true,  they  transfer  only  such  interest  as 
the  seller  then  has,  and  do  not  purport  to  convey  the  property 
in  fee  simple  absolute,  so  as  to  pass  an  after-acquired  title,  but 
to  the  extent  the  seller  has  an  interest,  they  divest  him  of  it 
and  vest  it  in  the  purchaser.  We  consider,  therefore  ,that  a 
quitclaim  deed  received  in  good  faith  and  for  a  valuable  con- 
sideration, which  is  first  recorded,  will  prevail  over  a  deed  of 
older  execution  which  is  subsequently  recorded."  ^    This  view 

tier  V.  Hinde,  7  Peters,  252,  8  L.  Lake,  20  Fla.  656,  51  Am.  Rep.  625 ; 

ed.  675;  Nash  v.  Bean,  74  Me.  340.  McAdow    v.    Black,    6    Mont.    601, 

See,     also,     Peters    v.    Cartier,    80  13  Pac.  Rep.  Ill ;  American  Mort- 

Mich.    124,   20    Am.    St.    Rep.    508;  gage    Co.    v.    Hutchinson,    19    Or. 

Eaton    V.     Trowbridge,     38     Mich.  334;    Baker   v.   Woodward,    12   Or. 

454;  Johnson  v.  Williams,  37  Kan.  3;    Bragg    v.    Paulk,    42    Me.    502; 
179,  1  Am.  St.  Rep.  243;  Utley  v.    -  Meikel   v.   Borders,    129   Ind.   529; 

Fee,  33  Kan.  683;  Merrill  V.  Hutch-  Leland  v.   Isenbeck,    1   Idaho,  469; 

inson,  45  Kan.  59,  23  Am.  St.  Rep.  Parker   v.   Randolph,   5   S.   D.   549, 

713;    Hutchinson    v.    Hartman,    15  29  L.R.A.  ZZ,  59  N.  W.  Rep.  722. 

Kan.   133;  Young  v.  Clippinger,   14  *  Fowler   v.    Will,    19   S.   D.    131, 

Kan.   148;  Goddard  v.  Donaha,  42  102  N.  W.  598,   117  Am.   St.  Rep. 

Kan.    754;    Hoyt    v.    Schuyler,    19  938;    8    A.    &    E.    Ann.    Cas.    1093. 

Neb.  652;   Gress  v.   Evans,   1   Dak.  5  In  Graff  v.    Middleton,  43   Gal. 

387,  46  N.  W.  Rep.  1132;   Snow  v.  341.     This    case    was    subsequently 


CHAP,   XXII.]  REGISTRATION  OF  DEEDS. 


1233 


was  also  at  an  early  day  adopted  in  Illinois.  "Prior  to  the 
passage  of  the  statutes  made  for  the  purpose  of  facilitating 
the  manner  of  transferring  lands,  it  was  essential  to  the  oper- 
ation of  a  deed  of  release  that  the  grantee  should  have  some 
estate  or  interest  in  the  land  released;  but  many  of  the  subtle 
distinctions  and  ceremonious  forms  peculiar  to  the  ancient 
modes  of  transferring  titles  are  abolished,  and  the  policy  of 
the  law  now  requires  that  we  should  look  rather  to  the  inten- 
tion of  the  parties  than  to  the  form  in  which  it  is  expressed. 
A  deed  of  release  and  quitclaim  is  as  effectual  for  the  purpose 
of  transferring  title  to  land  as  a  deed  of  bargain  and  sale;  and 
the  prior  recording  of  such  deed  will  give  it  a  preference  over 
one  previously  executed,  but  which  was  subsequently  recorded. 
In  this  respect  there  is  no  distinction  between  different  forms 
of  conveyance.  As  a  general  rule,  the  one  first  recorded  must 
prevail  over  one  of  older  execution,  when  made  in  good  faith, 
and  when  it  appears  to  have  been  the  intention  of  the  parties 
to  convey  again  the  same  lands  which  had  been  previously  con- 
veyed." ^    In  a  case  in  Mississippi,  the  cases  are  reviewed  by 

approved  in  Frey  v.  Clifford,  44  deed,  if  there  were  any,  were  lim- 
Cal.  335,  343.  See,  also,  Willing-  ited  to  the  estate  described."  In 
ham  V.  Hardin,  75  Mo.  429;  Boog-  that  case  the  court  held  that  a  quit- 
her  V.  Neece,  75  Mo.  383.  In  the  claim  deed  conveyed  to  the  pur- 
case  of  Allison  V.  Thomas,  72  Cal.  chaser  only  what  the  grantor  could 
562,  1  Am.  St.  Rep.  89,  the  court  himself  claim,  and  that  the  only  ex- 
while  recognizing  the  rule  stated  ceptions  to  the  rule  were  based  up- 
as the  correct  principle  in  view  of  on  the  registry  laws,  or  were  sales 
the  language  of  the  recording  act  made  under  execution.  See,  also, 
in  force  when  the  cases  were  de-  Spaulding  v.  Bradley,  79  Cal.  449; 
cided,  says:  "Unless  these  cases  Thompson  v.  Spencer,  50  Cal.  532; 
are  justified  by  the  peculiar  word-  Rego  v.  Van  Pelt,  65  Cal.  254. 
ing  of  the  statute,  they  seem  to  be  ^  McConnel  v.  Reed,  4  Scam.  (5 
against  the  decisions  elsewhere  up-  111.)  117,  121,  38  Am.  Dec.  124,  per 
on  the  subject.  It  has  been  uni-  Chief  Justice  Wilson.  And  to  the 
formly  held  that  a  conveyance  of  same  effect  see  Brown  v.  Banner 
the  right,  title,  and  interest  of  the  Coal  and  Oil  Co.  97  111.  214,  37  Am. 
grantor  vests  in  the  purchaser  only  Rep.  105 ;  Kennedy  v.  Northup,  15 
what  the  grantor  himself  could  111.  148;  Morgan  v.  Clayton,  61  111. 
claim,  and  the  covenants  in  such  35;  Hamilton  v.  Doolittle,  37  IlL 
Deeds,  Vol.  IL— 78 


1234 


THE  LAW  OF  DEEDS. 


[chap.  XXIl. 


Mr.  Justice  Campbell  at  considerable  length,  and  as  the  re- 
sult of  his  examination,  he  says :  "We  conclude  that  there  is 
no  authority  for  the  proposition  that  a  quitclaim  deed  in  the 
chain  of  title  deprives  him  who  claims  under  it  of  the  charac- 
ter of  a  bona  Ude  purchaser.  There  are  dicta  and  suggestions 
and  inferences  to  that  effect.  But  we  deny  and  repudiate  the 
proposition  as  unsound  and  insupportable  on  authority,  prin- 
ciple, or  policy.  We  concede  that  under  some  circumstances 
a  quitclaim  deed  may  be  a  'significant  circumstance,'  in  the 
consideration  of  a  combination  of  circumstances  of  which  it 
may  be  a  part,  but  this  is  the  greatest  force  it  can  possibly 
have  in  any  case."  '    The  rule  that  a  purchaser  under  a  quit- 


473;  Harpham  v.  Little,  59  III.  509; 
Butterfield  v.  Smith,  11  111.  485; 
Brady  v.  Spurck,  27  III.  478;  Grant 
V.  Bennett,  96  111.  513;  Fox  v.  Hall, 
74  Mo.  315,  41  Am.  Rep.  316;  White 
V.  McGarry,  2  Flipp.  C.  C.  572. 
The  title  of  a  purchaser  under  a 
quitclaim  deed  without  notice  will 
prevail  over  that  given  by  an  un- 
recorded deed  :  Merrill  v.  Hutchin- 
son, 45  Kan.  59,  23  Am.  St.  Rep. 
713. 

'  Chapman  v.  Sims,  53  Miss.  163. 
The  court,  in  that  case,  in  discuss- 
ing that  question,  said:  "The  deed 
from  McPherson  to  Sims  is  a  mere 
quitclaim  deed,  and  it  is  said  that, 
as  there  is  such  a  deed  in  the  chain 
of  Anderson's  title,  he  cannot  be 
held  to  occupy  the-  position  of  a 
bona  fide  purchaser.  The  cases 
cited  in  support  of  this  legal  prop- 
osition are:  Smith  v.  Winston,  2 
How.  (Miss.)  601;  Kerr  v.  Free- 
man, 23  Miss.  292;  Learned  v. 
Corley,  43  Miss.  687;  Oliver  v.  Pi- 
att, 3  How.  233,  410,  U  L.  ed.  622, 
657;  May  v.  Le  Claire,  11  Wall. 
217,  232,  20  L,  ed,  50,  53;   Wood- 


folk  V.  Blount,  3  Hayw.  (Tenn.) 
147.  In  Smith  v.  Winston,  the 
point  under  consideration  was, 
whether  the  failure  of  considera- 
tion could  be  set  up  by  a  vendee 
under  deed  without  covenants  of 
warranty,  as  a  defense  to  the  re- 
covery of  the  purchase  money  he 
had  promised.  It  would  seem  that 
to  suggest  the  question  was  to  in- 
dicate the  proper  answer  to  it ; 
but  the  learned  judge  delivering  the 
opinion,  discussed  the  question  at 
length,  and  among  many  other 
things  said:  'In  a  quitclaim  deed, 
the  party  does  nothing  more  than 
to  acquit  the  grantee  from  any  title 
or  right  of  action  which  he  may 
have;  and  the  fact  of  taking  noth- 
ing more  than  a  quitclaim  would, 
in  general,  imply  a  knowledge  of 
doubtful  title.'  Again,  he  re- 
marked :  The  law  seems  to  be  well 
settled  that  a  purchaser  without 
covenants  takes  all  the  risk  of 
title.'  The  remark  last  quoted  was 
pertinent,  and  all  that  was  neces- 
sary to  dispose  of  the  point.  It  is 
indisputable  that  a  purchaser  with- 


CHAP.   XXII.] 


REGISTRATION   OF  DEEDS. 


1235 


claim  deed  is  entitled  under  the  registry  laws,  to  the  character 


out  covenants  takes  all  the  risk  of 
title,  so  far  as  any  right  to  call  on 
his  vendor  to  indemnify  him  for  a 
failure  of  title  is  involved.  We  are 
not  able  to  perceive  the  appropri- 
ateness of  the  above-quoted  state- 
ment, that  'the  fact  of  taking  noth- 
ing more  than  a  quitclaim  would,  in 
general,  imply  a  knowledge  of 
doubtful  title.'  Knowledge,  or 
want  of  it,  could  in  no  way  affect 
the  question  being  discussed.  It 
was  not  the  case  of  one  claiming 
as  a  bona  Ude  purchaser.  That 
case  is  not  an  authority  in  support 
of  the  proposition  for  which  it  has 
been  invoked.  The  case  of  Kerr 
V.  Freeman  is  that  of  a  complain- 
ant claiming  land  under  a  quitclaim 
deed,  seeking  the  cancellation  of 
certain  deeds  operating  as  clouds 
on  his  title.  The  judge  delivering 
the  opinion,  speaking  of  the  com- 
plainant's quitclaim  deed,  said : 
'His  deed  merely  shows  a  doubtful 
title;'  but  it  was  not  said  that  be- 
cause the  complainant  held  under 
a  quitclaim,,  he  could  not  maintain 
his  bill.  On  the  contrary  the  ques- 
tion, 'whether  the  decree  is  sus- 
tained by  the  evidence  in  the  cause,' 
was  minutely  discussed,  and  the 
conclusion  announced  that  it  was 
insufficient  to  warrant  the  decree. 
If  it  be  true,  as  a  legal  proposition, 
that  a  title  evidenced  only  by  a 
quitclaim  deed  is  not  sufficient  to 
support  a  claim  to  have  clouds  re- 
moved from  it,  the  announcement 
of  that  proposition  was  enough  to 
dispose  of  the  case,  and  render  an 
examination    of    the    evidence    un- 


necessary. This  case  is  not  an  au- 
thority for  the  proposition  that  a 
vendee  by  quitclaim  cannot  be  re- 
garded as  a  bona  fide  purchaser. 
Learned  v.  Corley  contains  this 
expression :  'A  quitclaim  deed  im- 
plies a  doubtful  title.'  But  that 
was  not  pronounced  sufficient,  of 
itself,  to  deprive  the  grantee  of  his 
claim  to  be  a  bona  fide  purchaser. 
It  seems,  rather,  to  have  been  treat- 
ed as  a  significant  circumstance  in 
the  history  of  the  case  fit  to  be 
considered,  with  other  circum- 
stances all  of  which  combined  were 
held  to  deprive  the  holder  of  his 
claim  as  a  purchaser  in  good  faith. 
In  Oliver  v.  Piatt,  this  language 
is  found :  'Another  significant  cir- 
cumstance is,  that  this  very  agree- 
ment contained  a  stipulation  that 
Oliver  should  give  a  quitclaim  deed 
only  for  the  tracts;  and  the  sub- 
sequent deeds  given  by  Oliver  to 
him,  accordingly,  were  drawn  up 
without  any  covenants  of  warran- 
ty, except  against  persons  claiming 
under  Oliver,  or  his  heirs  and  as- 
signs. In  legal  effect,  therefore, 
they  did  convey  no  more  than  Oliv- 
er's right,  title,  and  interest  in  the 
property;  and  under  such  circum- 
stances it  is  difficult  to  conceive 
how  he  can  claim  protection  as  a 
bona  fide  purchaser,'  etc.  It  is  ob- 
servable that  the  quitclaim  deed,  in 
pursuance  of  a  previous  stipula- 
tion for  such  a  one,  was  declared 
to  be  a  'significant  circumstance,' 
in  connection  with  others,  in  them- 
selves sufficient,  to  deprive  the 
grantee  of  his  claim  to  be  treated 


1236 


THE  LAW  OF  DEEDS. 


[chap.  XXII. 


of  a  bona  fide  purchaser  and  to  the  protection  that  such  a 
character  gives,  prevails  in  many  States.® 


as  a  bona  fide  purchaser.  The 
quitclaim  deed  is  not  pronounced 
to  be  per  se  enough  to  rob  its  hold- 
er of  the  character  of  a  bona  fide 
purchaser.  In  May  v.  Le  Claire 
this  language  is  used :  'The  evi- 
dence satisfies  us  that  Cook  had 
full  notice  of  the  frauds  of  Pow- 
ers, and  of  the  infirmities  of  Des- 
saint's  title.  Whether  this  were  so 
or  not,  having  acquired  his  title  by 
a  quitclaim  deed,  he  cannot  be  re- 
garded as  a  bona  fide  purchaser 
without  notice.  In  such  cases,  the 
conveyance  passes  the  title  as  the 
grantor  held  it,  and  the  grantee 
takes  only  what  the  grantor  could 
lawfully  convey.'  And  Oliver  v. 
Piatt,  3  How.  333,  11  L.  ed.  622,  is 
referred  to  in  support  of  the  prop- 
osition. No  other  authority  is  cit- 
ed. After  declaring  'that  Cook  had 
full  notice  of  the  frauds  of  Pow- 
ers, and  of  the  infirmities  of  Des- 
saint's  title,'  it  was  surely  unnec- 
essary to  say  more,  and  the  remark 
about  the  quitclaim  deed  is  as  per- 
fect a  specimen  of  an  obiter  dict- 
um as  the  books  afford.  We  have 
above  shown  that  the  single  case 
cited  in  support  of  this  dictum 
merely  treated  the  quitclaim  in  that 
case  as  a  'significant  circumstance,' 
and  did  not  announce  that  it  alone 
was  in  itself  a  bar  to  the  claim  to 
be  a  bona  fide  purchaser.  In 
Woodfolk  v.  Blount,  the  court  hes- 
itatingly and  doubtfully  suggested 
that,  perhaps  'the  vendee  in  all 
cases,  when  he  receives  but  a  spe- 
cial warranty  or  quitclaim  convey- 
ance, takes  the  estate  subject  to  all 


the  disadvantages  that  it  was  liable 
to  in  the  hands  of  the  vendor,  and 
the  law  will  presume  notice  of  all 
encumbrances,  either  legal  or  equi- 
table. The  circumstance  of  a  vend- 
or refusing  to  make  a  full  and 
ordinary  assurance  is  sufficient  to 
excite  suspicion,  and  put  the  party 
upon  inquiry.'  Not  a  single  au- 
thority is  referred  to,  except  cases 
on  the  subject  of  'indorsement  of 
a  bill  without  recourse  after  it  is 
due,'  which  hold  that  the  indorsee 
takes  subject  to  all  equities.  The 
language  immediately  afterward 
used  in  the  opinion  is:  'The  prin- 
ciples in  relation  to  conveyances  of 
real  property  with  special  warranty, 
perhaps  will  be  found  equally  ap- 
plicable. However,  it  is  not  neces- 
sary to  give  a  positive  opinion  on 
this  subject.'  It  is  just  to  assume 
that  the  judge  delivering  that  opin- 
ion would  have  cited  some  text- 
book or  adjudication,  if  he  could 
have  found  one  to  sustain  the  view 
he  expressed.  His  citation  of  cases 
of  indorsements  of  bills  after  ma- 
turity shows  his  anxiety  on  the  sub- 
ject, and  suggests  his  inability  to 
find  any  authority  in  point." 

8  Woodward  v,  Sartwell  129 
Mass.  210;  Dow  v.  Whitney,  147 
Mass.  1;  Mansfield  v.  Dyer,  131 
Mass.  200;  Kyle  v.  Kavanagh,  103 
Mass.  356,  4  Am.  Rep.  560;  Cutler 
v.  James,  64  Wis.  173,  54  Am.  Rep. 
603;  Faryason  v.  Edrington,  49 
Ark.  207 ;  Munson  v.  Ensor,  94  Mo. 
504;  liope  v.  Blair,  105  Mo.  85,  24 
Am.  St.  Rep.  366;  Craig  v.  Zim- 
merman, 87  Mo.  475,  56  Am.  Rep. 


CHAP.    XXII.]  REGISTRATION   OF   DEEDS.  1237 

§  673.  Comments. — We  think  that  it  is  unreasonable 
to  deprive  a  purchaser  under  a  quitclaim  deed  of  the  bene- 
fits of  the  registration  laws.  A  conveyance  of  this  character 
is  sufficient  to  convey  all  the  title  the  grantor  possesses  at  the 
time  of  its  execution.  If  he  has  already  executed  a  prior  con- 
veyance, a  subsequent  grantee,  whether  by  a  quitclaim  deed, 
or  a  deed  containing  every  covenant,  can  acquire  no  title  un- 
less it  be  by  virtue  of  some  principle  of  estoppel,  or  by  force 
of  some  positive  provision  of  the  statute,  relative  to  registra- 
tion. There  is,  to  our  mind,  no  force  in  the  argument  that  a 
purchaser  by  a  quitclaim  deed  can  succeed  to  no  rights  save 
those  possessed  by  his  grantor.  The  same  is  true  of  a  pur- 
chaser under  any  other  kind  of  a  deed.  The  latter  succeeds 
by  the  conveyance  only  to  the  title  of  the  grantor,  although  he 
may  be  entitled  to  the  benefit  of  the  subsequent  title  of  his 
grantor  by  operation  of  the  doctrine  of  estoppel,  and  may  have 
a  right  to  resort  to  his  grantor  on  the  covenants  contained 
in  the  deed  for  any  breach  of  or  defect  in  the  title  he  has 
purchased.  Nor  should  the  fact  that  a  purchaser  accepts  a 
quitclaim  be  regarded,  in  our  judgment,  as  a  "significant  cir- 
cumstance," in  charging  him  with  notice  of  a  prior  or  para- 

466;  Ebersole  v.  Rankin,  102  Mo.  531;  Bannard  v.  Duncan,  79  Neb. 
488;  Eoff  v.  Irvine,  108  Mo.  378,  32  189,  112  N.  W.  353.  See,  also,  El- 
Am.  St.  Rep.  609;  Ely  v.  Stannard,  lison  v.  Torpin,  44  W.  Va.  414,  30 
44  Conn.  528;  Potter  v.  Tuttle,  22  S.  E.  183;  Dunfee  v.  Childs,  59  W. 
Conn.  512;  Bradbury  v.  Davis,  5  Va.  225,  53  S.  E.  209;  Wilhelm  v. 
Colo.  265.  A  recorded  quitclaim  Wilken,  149  N.  Y.  447,  44  N.  E.  82, 
will  prevail  over  prior  unrecorded  32  L.R.A.  370,  52  Am.  St.  Rep.  743; 
deed :  Williams  v.  White  etc.  Co.  Baecht  v.  Hevesy,  101  N.  Y.  S.  413, 
114  La.  448,  38  So.  414;  Stark  v.  115  App.  Div.  509;  Boyton  v.  Hag- 
Boynton,  167  Mass.  443,  45  N.  E.  gart,  120  Fed.  819,  57  C.  C.  A.  301. 
764;  Livingston  v.  Murphy,  187  In  some  cases  the  fact  that  a  pur- 
Mass.  315,  12  N.  E.  1012;  Elliott  chaser  has  taken  a  quitclaim  deed 
v.  BufRngton,  149  Mo.  663,  51  S.  has  been  considered  a  circumstance 
W.  403 ;  Strong  v.  Whybark,  204  tending  to  show  notice  on  his  part 
Mo.  341,  12  L.R.A. (N.S.)  240,  102  Gaines  v.  Summers,  50  Ark.  322 
S.  W.  968 ;  Schott  v.  Dosh,  49  Neb.  Bagley  v.  Fletcher,  44  Ark.  153 
187,  68  N.  W.  346,  59  Am.  St.  Rep.  Miller  v.  Fraley,  23  Ark.  735. 


1238  THE  LAW  OF  DEEDS.  [CHAP.  XXII. 

mount  title.  Mr.  Rawle  very  properly  says  with  reference 
to  this  suggestion :  "But  there  would  appear  to  be  equal  rea- 
son for  the  opposite  argument,  that  a  deed  with  general  war- 
ranty was  as  significant  a  circumstance — that  unless  there  had 
been  something  wrong  about  the  title,  the  purchaser  would 
not  have  demanded  a  general  covenant,  and  that  he  intended 
to  run  the  risk  of  the  defect,  and  rely  upon  the  covenant  for 
his  protection.  In  the  absence  of  local  usage  it  would  seem 
that  no  presumption  of  notice  can  properly  arise,  either  from 
the  absence  or  presence  of  unlimited  covenants,  and  where 
it  is,  as  some  of  the  cases  say,  the  invariable  usage  in  a  State 
to  insert  general  covenants,  the  presence  in  the  deed  of  limit- 
ed covenants  is  only  a  ground  of  presumption  of  mutual  knowl- 
edge, or  at  least,  of  suspicion,  of  some  defect  of  title."  '  The 
theory  of  the  registry  laws  is  that  the  records  truly  disclose 
the  state  of  every  title.  If  an  intending  purchaser,  after  a 
careful  examination  of  the  records,  finds  the  legal  title  lodged 
in  his  grantor,  and  has  no  actual  notice  of  any  outstanding 
claim,  and  obtains  all  of  his  grantor's  interest,  why  should  his 
right  to  precedence  over  a  prior  unrecorded  conveyance  of 
which  he  had  no  notice  depend  upon  the  form  of  his  deed? 
Quitclaim  deeds  in  many  States  are  not  unusual  forms  of  con- 
veyance. The  grantor  may  have  the  best  of  reasons  for  not 
desiring  to  execute  a  deed  with  covenants,  or  even  to  agree, 
impliedly,  that  the  grantee  shall  succeed  to  any  title  the  former 
may  subsequently  acquire.  The  grantee  may  be  thoroughly 
satisfied  with  the  validity  of  the  grantor's  title,  and  may,  in 
his  confidence,  consider  himself  fully  protected  by  acquiring 
that  title  without  the  exaction  of  covenants  for  his  repara- 
tion in  case  of  its  failure.    The  fact  that  his  deed  contains  no 

9  Rawle  on  Covenants    (4th  ed.)  bearing  on  the  question  of  notice, 

35,   36,   citing   Miller  v.   Fraley,  23  see    Knapp  v.    Bailey,   79   Me.    195, 

Ark.  743 ;  Lowry  v.  Brown,  1  Cold.  1   Am.   St.  Rep.  295 ;   Mansfield  v. 

459.    That    the    taking    of    a    quit-  Dyer,    131   Mass.  200. 
claim  deed  may  be  a  circumstance 


CHAP.   XXII.]  REGISTRATION   OF  DEEDS.  1239 

covenants,  and  that  the  grantor  conveys  to  him  nothing  but 
his  title,  should  not,  in  our  opinion,  be  entitled  to  consideration 
in  the  determination  of  the  question  whether  he  is  to  be  re- 
garded as  a  bona  Me  purchaser  or  not.  This  question  should 
be  decided  with  reference  to  other  considerations,  as  want  of 
consideration  or  purchase  with  notice.  It  might,  perhaps,  as 
a  question  of  evidence,  on  the  issue  of  notice,  be  conceded 
that  a  party  should  be  permitted  to  show,  that  one  of  the  rea- 
sons why  the  grantee  took  a  quitclaim  deed  was  because  both 
he  and  the  grantor  were  aware  of  a  prior  conveyance,  or  a 
defect  in  the  title.  But,  as  we  have  stated,  we  can  see  no  rea- 
son for  the  doctrine  that  a  quitclaim  deed  should,  of  itself, 
aside  from  any  other  suspicious  circumstance,  be  sufficient  to 
deprive  its  holder  of  occupying  the  character  of  a  bona  fide 
purchaser. 

§  674.  Intention  in  quitclaim  to  pass  grantor's  inter- 
est only. — But  even  in  the  States  where  a  quitclaim  deed 
is  recognized  as  an  effectual  mode  of  transferring  the  title  of. 
the  grantor,  and  is  accorded  the  same  privileges  under  the  reg- 
istry law  as  a  deed  of  bargain  and  sale,  yet  if  it  appears  by  the 
deed  of  quitclaim  that  the  grantor  intended  to  convey  only 
such  land  as  he  owned  at  the  time  of  its  execution,  the  lands 
embraced  in  a  prior  operative  conveyance  are  reserved  from 
the  operation  of  the  quitclaim  deed,  and  title  to  such  previous- 
ly conveyed  lands  will  not  pass  by  the  deed  of  quitclaim,  not- 
withstanding that  the  prior  deed  remains  unrecorded.  As  an 
illustration  of  this  principle  a  case  may  be  cited  where  the 
description  of  the  property  intended  to  be  conveyed  by  the 
quitclaim  deed  was:  "All  lots,  blocks,  lands,  and  fractional 
blocks,  or  any  interest  therein,  in  the  town  of  Pekin,  county  of 
Tazewell,  State  of  Illinois,  that  I  have;  also,  all  my  right  and 
interest,  or  in  anywise  appertaining,  together  with  the  right 
of  ways.  This  deed  is  intended  to  convey  all  the  interest  the 
said  Peter  Menard  has  in  the  town  of  Pekin,  now  city,  in  said 


1240  THE  LAW  OF  DEEDS.  [CHAP.  XXLL 

county."  The  court  held  that  this  language  embraced  only 
such  land  as  the  grantor  owned  at  the  time  of  the  execution 
of  the  deed.^  The  court  said:  "The  language  used  clearly 
manifests  the  intention  of  the  grantor  to  limit  the  operation 
of  the  conveyance  to  such  lands  as  he  then  owned,  and  the 
title  to  which  was  still  in  him.  Whilst  a  quitclaim  deed  is  as 
effectual  to  pass  title  as  a  deed  of  bargain  and  sale,  still  it, 
like  all  other  contracts  and  agreements,  must  be  expounded 
and  enforced  according  to  the  intention  of  the  parties.  In 
this  deed  the  intention  of  Menard  appears  to  have  been  to 
sell  such  lands  only  as  had  not  been  conveyed  by  him  to  other 
parties  previous  to  that  time."  ^  A  grantor  conveyed  land, 
speciiically  describing  himself  as  the  devisee  of  Alexander 
Skinner,  by  whom  the  land  was  owned  in  his  lifetime.  By  a 
subsequent  deed,  which  was  first  recorded,  he  conveyed  to  an- 
other "all  the  right,  title,  and  claim  which  he,  the  said  Alex- 
ander Skinner,  had,  and  all  the  right,  title  and  interest  which 
the  said  Lee  [grantor]  holds  as  legatee  and  representative  to 
said  Alexander  Skinner,  deceased,  of  all  lands  lying  and  be- 
ing the  the  State  of  Kentucky,  which  cannot  at  this  time  be 
particularly  described,  whether  they  be  by  deed,  patent,  mort- 
gage, survey,  location,  contract  or  otherwise."  The  deed  also 
contained  a  covenant  against  all  persons  claiming  under  the 
grantor,  his  heirs  and  assigns.  The  court  held  that  the  lat- 
ter conveyance  operated  only  upon  the  lands  and  the  interest 
which  he  possessed  at  its  execution,  and  therefore  could  not, 
by  a  prior  registration,  obtain  precedence  over  or  defeat  the 
operation  of  the  first  deed,  by  which  the  same  land  was  spe- 
cifically conveyed.^ 

1  Hamilton  v.  Doolittle,  37  III.  2  Chief  Justice  Walker,  in  Ham- 
473.  See,  also,  Pleasants  v.  Blod-  ilton  v.  Doolittle,  supra. 
gett,  39  Neb.  741,  42  Am.  St.  Rep.  3  Brown  v.  Jackson,  3  Wheat.  449, 
624,  58  N.  W.  423 ;  Va.  etc.  Co.  v.  4  L.  ed.  432.  Mr.  Justice  Todd  de- 
Fields,  94  Va.  102,  26  S.  E.  426  livered  the  opinion  of  the  court,  and 
(citing  text).  said :    "A  conveyance  of  the  right. 


CHAP.   XXII.] 


REGISTRATION   OF  DEEDS. 


1241 


§  675.  Another  illustration. — The  same  construction 
was  given  to  another  deed,  which  was  in  the  usual  form  of  a 
quitclaim  deed,  conveying  all  the  right,  title,  and  interest  of 
the  grantor  in  certain  lands,  but  after  the  description  con- 
tained the  clause :  "Intending  to  convey  such  only  as  are 
now  owned  by  said  Walker,  and  not  any  that  may  have  been 
conveyed  to  anyone  else."  "Such  a  deed,"  said  Mr.  Justice 
Trumbull,  "is  just  as  effectual  for  the  purpose  of  transferring 
real  estate  as  a  deed  of  bargain  and  sale^  and  had  there  been 
no  words  in  the  deed  under  consideration,  showing  an  inten- 
tion on  the  part  of  the  grantor  not  to  convey  the  land  in  ques- 
tion, there  can  be  no  doubt  that  the  plaintiff  would  have  been 
entitled  to  recover.  The  deed,  however,  contains  a  clause 
showing  that  the  grantor  did  not  transfer  by  it  any  interest 
in  lands  which  he  had  previously  conveyed.  It  was  compe- 
tent for  the  grantor  to  insert  such  a  limitation  in  the  deed ; 


title,  and  interest  in  land  is  cer- 
tainly sufficient  to  pass  the  land  it- 
self, if  the  party  conveying  has  an 
estate  therein  at  the  time  of  the 
convej'ance;  but  it  passes  no  es- 
tate which  was  not  then  possessed 
by  the  party.  If  the  deed  to  Banks 
had  stopped  after  the  words  'all  the 
right,  title,  and  claim  which  Alex- 
ander Skinner  had,'  there  might  be 
strong  ground  to  contend  that  it 
embraced  all  the  lands  to  which  Al- 
exander Skinner  had  any  right, 
title,  or  claim,  at  the  time  of  his 
death,  and  thus  have  included  the 
lands  in  controversy.  But  the 
court  is  of  the  opinion  that  those 
words  are  qualified  by  the  succeed- 
ing clause,  which  limits  the  con- 
veyance to  the  right,  title,  and 
claim  which  Alexander  Skinner  had 
at  the  time  of  his  decease,  and 
which  Lee  also  held  at  the  time  of 
his  conveyance,   and   coupling  both 


clauses  together,  the  conveyance 
operated  only  upon  lands,  the  right, 
title,  and  interest  of  which  was 
then  in  Lee,  and  which  he  derived 
from  Skinner.  This  construction 
is,  in  the  opinion  of  the  court,  ^ 
reasonable  one,  founded  on  the  ap- 
parent intent  of  the  parties,  and  cor- 
roborated by  the  terms  of  the  cov- 
enant of  warranty.  Upon  any  oth- 
er construction,  the  deed  must  be 
deemed  a  fraud  upon  the  prior  pur- 
chaser; but  in  this  way  both  deeds 
may  well  stand  together  consist- 
ent with  the  innocence  of  all  par- 
ties." A  general  covenant  of  war- 
ranty is  limited  by  words  convey- 
ing only  the  right,  title,  and  inter- 
est of  the  grantor :  Reynolds  v. 
Shaver,  59  Ark.  299,  43  Am.  St. 
Rep.  36;  Hull  v.  Hull,  35  W.  Va. 
155,  29  Am.  St.  Rep.  800.  See, 
also,  §  27,  ante,  and  §  931,  post. 


1242  THE  LAW  OF  DEEDS.  [CHAP.  XXII. 

and  the  grantee,  by  accepting  such  a  deed,  is  bound  by  all  the 
Hmitations  it  contains.  The  intention  of  the  parties  is  the 
polar  star  by  which  courts  are  always  to  be  guided  in  the  con- 
struction of  contracts;  and  can  there  be  any  question  that 
Walker  did  not  intend  by  his  quitclaim  deed  to  convey  any 
land  which  he  did  not  then  own,  or  which  might  have  been 
conveyed  to  anyone  else,  when  he  has  expressed  that  intention 
in  the  deed  itself,  as  clearly  as  language  could  make  it?  It  is 
clear,  therefore,  that  no  interest  in  the  land  in  question  passed 
by  the  quitclaim  deed,  because  Walker  had  previously  con- 
veyed the  same  land  to  Taylor  and  others.  He  says  that  it 
was  his  intention  to  convey  only  such  lands  described  in  the 
quitclaim  deed  as  he  then  owned,  and  his  ownership  over  the 
land  in  controversy  was  as  effectually  parted  with,  as  to  him, 
as  it  would  have  been  if  Taylor  and  others  had  immediately 
placed  their  deed  upon  record.  To  construe  the  clause  under 
consideration  as  extending  only  to  such  lands  as  Walker  had 
previously  conveyed  to  persons  who  had  put  their  deeds  upon 
record,  would  be  to  give  it  no  meaning  whatever.  His  second 
conveyance  could  in  no  way  affect  their  rights.  It  is  probable 
that  Walker,  being  at  the  time  a  large  operator  in  lands,  did 
not  precisely  recollect  what  tracts  he  had  sold,  and  hence  in- 
serted a  clause  in  his  quitclaim  deed  that  would  protect  all 
who  had  purchased  from  him,  whether  their  deeds  were  re- 
corded or  not,  even  though  he  should  make  a  second  convey- 
ance of  the  same  land."  * 

§  676.  Reservation  in  quitclaim  deed  as  affecting  a 
prior  void  or  voidable  deed. — But  although  a  quitclaim 
deed  may  show  by  proper  words  of  reservation  that  the  grant- 
or did  not  intend  to  convey  lands  previously  transferred  by 
him,  yet  it  is  held  that  a  prior  void  deed  is  not  within  such  a 

*Butterfield  v.  Smith,  11  III.  485,  562;  Coe  v.  Persons  Unknown,  43 
486.  See  Harpham  v.  Little,  59  III.  Me.  432;  Nash  v.  Bean,  74  Me. 
509;    Allison    v.    Thomas,    72    Cal.      340;  Walker  v.  Lincoln,  45  Me.  67. 


CHAP.    XXII.]  REGISTRATION   OF  DEEDS.  1243 

reservation,  and  that  a  subsequent  quitclaim  deed,  with  a 
reservation  of  this  nature,  will  pass  the  title  as  against  the 
prior  conveyance.®  "By  fair  construction,  the  language  must 
be  restricted  to  previous  conveyances,  legally  executed,  and 
operative  as  such.  A  conveyance  void  under  the  law,  or  even 
voidable,  at  the  time  of  executing  the  subsequent  conveyance, 
could  not  be  held  to  be  embraced  within  the  reservation.  It 
not  unfrequently  happens,  that  the  subsequent  deed  is  de- 
signed to  avoid  a  prior  deed  which  the  grantor  has  the  legal 
right  to  avoid,  and  such  conveyances  are  upheld  as  binding, 
and  sufficient  to  pass  the  title.  Again,  the  language  should  be 
restricted  so  as  not  to  embrace  any  conveyance  which  is  so 
imperfectly  executed  that  the  law  will  refuse  to  give  it  effect 
as  a  conveyance  of  title.  If  it  has  been  so  executed  that  it 
cannot  be  proved  so  as  to  be  admitted  in  evidence  as  a  convey- 
ance, it  cannot  have  effect,  and  cannot  be  held  to  constitute  a 
conveyance.  If,  from  want  of  proof,  or  from  other  defect,  it 
cannot  be  used  in  the  assertion  of  the  right  to  hold  the  title, 
it  cannot  be  said  to  be  a  conveyance  of  the  title  to  the  land. 
In  such  a  case,  the  legal  title  does  not  pass  from  the  vendor, 
but  remains  in  him  at  the  time  the  subsequent  conveyance  is 
made,  and  falls  fully  within  the  operation  of  the  language  of 
such  a  deed."  ' 

§  676a.  Quitclaim  deed  as  color  of  title. — Where  "a 
claim  under  a  deed  is  one  of  the  elements  constituting  adverse 
possession  or  where  the  extent  of  the  possession  alleged  to  be 
adverse  is  dependent  upon  a  deed  as  affording  color  of  title, 
a  quitclaim  deed  is  sufficient  to  give  such  color  of  title.'    But 

6  Hamilton    v.    Doolittle,    Z1    111.  85,  24  Am.  St.  Rep.  366;  Mann  v. 

473.  Best,  62  Mo.  497 ;  Ridgeway  v.  Hol- 

6  Hamilton     v.     Doolittle,    supra.  lida3^     59     Mo.     444;      Stoffel     v 

A  quitclaim   deed   will   not  cut   off  Schroeder,  62  Mo.  147;  Munson  v. 

equities    arising    from    transactions  Ensor,  94  Mo.  506. 

not  required  to  be  in  writing  or  re-  '  Castleberry    v.     Black,     58    Ga. 

corded:    Hope    v.    Blair,    105    Mo.  386;  Johnson  v.   Girtman,    115   Ga. 


1244 


THE  LAW  OF  DEEDS, 


[chap.  XXIL 


a  quitclaim  deed  which  limits  the  interest  conveyed  to  that 
of  the  grantor,  will  operate  as  color  of  title  only  to  the  extent 
of  his  interest.^  Nor  under  a  quitclaim  deed,  is  there  color  of 
title  to  land  not  described  in  the  deed.'  A  quitclaim  deed  may 
deprive  the  owner  of  his  right  to  claim  the  benefit  of  a  statute 
requiring  the  purchaser  at  a  tax  sale  to  commence  an  action 
to  recover  possession  of  the  property  sold  within  a  specified 
time,^  and  adverse  possession  may  be  secured  against  the 
cotenants  of  a  testator  by  one  who  enters  into  possession  under 
a  will  and  deed  from  the  executors  of  a  testator  purporting 
to  convey  the  whole  property.  If  possession  is  acquired  by 
virtue  of  a  deed  from  a  person  who  claims  adversely  to  the 
creator  of  a  trust,  it  may  be  the  foundation  of  an  adverse 
title." 

§  677.  Record  partly  printed. — The  law  is  satisfied  if 
the  record  contains  a  true  copy  of  the  instrument  to  be  record- 
ed. The  record  of  a  conveyance  is  not  defective,  because,  in- 
stead of  being  entirely  written,  a  portion  of  it  is  printed.  The 
statute  of  Wisconsin  requires  that  instruments  shall  be  re- 
corded "in  a  plain  and  distinct  handwriting."  '  A  book  in 
which  a  mortgage  was  recorded  was  composed  of  printed 
blanks  in  the  form  of  farm  mortgages.  When  a  mortgage  of 
this  kind  was  recorded,  the  blanks  were  filled  in,  and  this  was 
the  only  handwriting  shown  by  the  record.    It  was  declared  by 


794,  42  S.  E.  96;  McDonough  v. 
Jefferson  County,  79  Tex.  535,  15 
S.  W.  490;  Parker  v.  Newberry,  83 
Tex.  428,  18  S.  W.  815 ;  McConnel 
V.  Street,  17  III.  253;  Holloway  v. 
Clark,  27  111.  483;  Winslow  v. 
Cooper,  104  III.  235;  Safford  v. 
Stubbs,  117  111.  389,  7  N.  E.  653; 
Hall  V.  Waterman,  220  111.  569,  4 
L.R.A.(N.S.)  776,  11  N.  E.  142; 
Swift  V.  Mulkey,  14  Or.  59,  12  Pac. 
76;  Minot  v.  Brooks,  16  N.  H.  374. 


8  Busch  V.  Huston,  75  III.  343. 
See  McDonough  v.  Jefferson 
County,  79  Tex.  535,  15  S.  W.  490. 

9  Woods  V.  Banks,  14  N.  H.  101 ; 
Archer  v.  Beihl,  60  C.  C.  A.  101, 
136  Fed.  113. 

1  Knight  V.  Campbell,  76  Iowa, 
730,  39  N.  W.  829. 

2  Hall  V.  Waterman,  220  III.  569, 
4  L.R.A.(N.S.)   116,  77  N.  E.  14Z 

3  Rev.  Stats.  §  758,  subd.  2. 


CHAP.   XXII.]  REGISTRATION   OF  DEEDS.  1245 

statute  in  that  State  that  "the  words  'written'  and  'in  writing,' 
may  be  construed  to  indude  printing,  hthographing,  and  any 
other  mode  of  representing  words  and  letters,"  *  The  court 
held  that  the  objection  that  a  part  of  the  record  was  printed 
was  invalid.^  "There  is  no  claim  that  this  copy  of  the  record 
was  not  complete  and  perfect.  We  cannot  hold  that  this  rec- 
ord is  defective  because  a  portion  of  it  is  printed.  Certainly 
a  printed  record  is  as  effective  to  protect  bona  fide  purchasers 
as  one  wholly  in  writing.  It  is  also  just  as  beneficial  to  par- 
ties and  those  in  privity  with  them.  The  objects  of  the  re- 
cording acts  are  as  fully  complied  with  by  a  printed  as  by  a 
written  record.  There  is  no  question  but  that  the  book  in 
which  the  record  was  made  was  a  part  of  the  public  records 
in  the  register's  office  of  Ozankee  county."  ® 

§  678.  Interest  of  recording  officer. — The  registration 
of  a  deed  is  purely  a  ministerial  act.  The  record  is  not  vitiated 
by  the  fact  that  the  clerk  by  whom  it  is  recorded  is  a  party  to 
the  instrument.' 

§  679.     Time  at  which  deed  is  held  to  be  recorded. — 

The  statute  may  prescribe  that  the  depositing  of  a  deed  with- 
in a  specified  period  shall  have  a  retroactive  effect,  so  that  its 
registration  may,  when  it  is  filed  within  this  limited  time,  re- 
late back  to  the  time  of  its  execution.  In  many  States  it  is 
expressly  provided  that  a  deed  is  considered  as  recorded  at 
the  time  it  is  filed  for  record.  In  the  absence  of  legislation 
on  the  subject,  it  is  generally  conceded,  so  far  as  the  question 
of  priority  and  kindred  questions  are  concerned,  that  a  deed 
is  considered  in  law  to  be  recorded  at  the  time  at  which  it  is 
deposited  with  the  proper  ofticer  for  registration.'     "When  a 

*Rev.  Stats.  §  4971,  subd.   19.  '  Brockenborough    v.    Melton,    55 

6  Maxwell  v.  Hartmann,  SO  Wis.  Tex.  493;  Tessier  v.  Hall,  7  Mart. 

660.  (La.)   411. 

6  Mr.  Justice  Cassoday,  in   Max-  8  Cal.  Civil  Code,  §  1170;  Kesler 

well  V.  Hartmann,  svkpra,  v.  State,  24  Ind.  315;  Harrold  v. 


1246 


I  THE  LAW  OF  DEEDS. 


[chap.  XXII. 


deed,"  said  the  Supreme  Court  of  Rhode  Island,  "which  has 
never  been  recorded,  is  lodged  with  a  town  clerk,  the  act  of 
lodging  it,  unaccompanied  with  any  counter  declarations,  is 
itself  an  implied  direction  to  record,  and,  other  things  equal, 
the  title  is  complete  upon  its  being  lodged  with  such  implied 
directions;  for,  b}^  the  terms  of  our  statute,  the  lodging  of  a 
deed  to  be  recorded  is  equivalent  to  an  actual  entry  of  it  upon 
the  record,  so  far  forth  as  is  necessary  to  perfect  the  title. 
The  title  being  made  complete  by  such  lodgment,  the  subse- 
quent neglect  of  the  town  clerk  cannot  affect  the  grantee's 
rights  under  the  deed.  The  deed  remaining  on  file  in  the 
clerk's  office  and  open  to  inspection,  is  notice  to  all  the  world 


Simonds,  9  Mo.  326;  Mallory  v. 
Stodder,  6  Ala.  801;  Poplin  v. 
Mundell,  27  Kan.  138;  Dubose  v. 
Young,  10  Ala.  365;  Horsley  v. 
Garth,  2  Gratt.  471,  44  Am.  Dec. 
393;  Deming  v.  Miles,  35  Neb.  739, 
37  Am.  St.  Rep.  464;  Perkins  v. 
Strong,  22  Neb.  725;  Sinclair  v. 
Slawson,  44  Mich.  123,  38  Am.  Rep. 
235;  Leslie  v.  Hinson,  83  Ala.  266; 
Bloom  V.  Noggle,  4  Ohio  St.  45 ; 
Brown  v.  Kirkman,  1  Ohio  St.  116; 
Tousley  v.  Tousley,  5  Ohio  St.  78; 
Fosdick  V.  Barr,  3  Ohio  St.  471 ; 
Mayham  v.  Coombs,  14  Ohio,  428; 
Magee  v.  Beatty,  8  Ohio,  396;  Ber- 
caw  Y.  Cockerill,  20  Ohio  St.  163; 
Throckmorton  v.  Price,  28  Tex. 
605;  Belbaze  v.  Ratto,  69  Tex.  36; 
Harrison  v.  McMurray,  71  Tex. 
122;  Gladding  v.  Frick,'  88  Pa.  St. 
460;  Brooke's  Appeal,  64  Pa.  St. 
127;  Clader  v.  Thomas,  89  Pa.  St. 
343;  Watkins  v.  Wilhoit,  104  Gal. 
395;  Parker  v.  Scott,  64  N.  C.  118; 
Metts  V.  Bright,  4  Dev.  &  B.  173, 
32  Am.  Dec.  683;  Davis  v.  Whit- 
aker,  114  N.  C.  279,  41  Am.  St. 
Rep.  793;  Oaks  v.  Walls,  28  Ark, 


244;  Lee  v.  Bermingham,  30  Kan. 
312;  Kiser  v.  Heuston,  38  111.  252; 
Brown  v.  Banner  Coal  &  Oil  Co., 
97  111.  214,  27  Am.  Rep.  105;  Mer- 
rick V.  Wallace,  19  111.  486;  Nal- 
tinger  v.  Ware,  41  111.  245;  Ha- 
worth  V.  Taylor,  108  III.  275;  Bed- 
ford V.  Tupper,  30  Hun,  174;  Sim- 
onson  V.  Falihee,  25  Hun,  570;  Mu- 
tual Life  Ins.  Co.  v.  Dake,  87  N. 
Y.  257;  Lewis  v.  Hinman,  56  Conn. 
55 ;  Franklin  v.  Cannon,  1  Root, 
500;  Bishop  v.  Schneider,  46  Mo. 
472,  2  Am.  Dec.  533;  Heidson  v. 
Randolph,  66  Fed  Rep.  216,  13  C. 
C  A.  402;  MangoH  v.  Barrow,  61 
Miss.  593,  48  Am.  Rep.  84;  Jacobs 
V.  Denison,  141  Mass.  117;  Gillespie 
V.  Rogers,  146  Mass.  610;  Parrish 
V.  Mahany,  10  S.  D.  276,  66  Am. 
St.  Rep.  715.  When  a  deed  has 
been  deposited  with  the  proper  cus- 
todian, at  the  right  time  and  place, 
a  party's  duty  to  file  a  paper  has 
been  performed :  Hook  v.  Fender, 
18  Col.  283,  26  Am.  St.  Rep.  277; 
Beebe  v.  Morrell,  76  Mich.  114,  15 
Am.  St.  Rep.  288. 


CHAP.   XXII.] 


REGISTRATION  OF  DEEDS. 


1247 


of  a  conveyance  of  the  land,  either  absolute  or  conditional."  ' 
A  deed  that  has  been  so  filed  for  record,  is  sufficient  to  charge 
subsequent  purchasers  with  constructive  notice  from  that  time 
of  its  existence  and  execution,  and  is,  of  course,  entitled  to 
priority  over  any  other  deed  subsequently  filed  for  record.^ 


9  Nichols  V.  Reynolds,  1  R.  I.  30, 
35,  36  Am.  Dec.  238.  See,  also, 
Gide  V.  Fauntleroy,  8  Mon.  B.  177; 
Horsley  v.  Garth,  2  Gratt.  471,  44 
Am.  Dec.  393.  A  paper  is  filed 
when  delivered  to  the  proper  of- 
ficer for  that  purpose :  Edwards  v. 
Grand,  121  Cal.  254;  Tregambo  v. 
Comanche  Mill  Co.,  57  Cal.  501; 
Mann  v.  Carson,  120  I\Iich.  631,  79 
N.  W.  941;  Masterson  v.  Southern 
R.  Co.,  (Ind.)  82  N.  E.  1021; 
Franklin  County  Commissioners  v. 
State,  24  Fla.  55,  3  So.  471,  12  Am. 
St.  Rep.  183;  In  re  Conant,  43  Or. 
530,  yz  Pac.  1018;  Bade  v.  Hib- 
bcrd,  SO  Or.  501,  93  Pac.  364;  Bar- 
ber Asphalt  Paving  Co.  v.  O'Brien, 
128  Mo.  App.  267,  107  S.  W.  25. 
A  filing  of  a  document  for  record 
is  not  vitiated  on  account  of  the 
failure  of  the  officer  to  indorse  on 
it  a  statement  of  its  filing  and  the 
time.  McDonald  v.  Crusen,  2  Or. 
258;  Moore  v.  Williamette  Transp. 
Co.  7  Or.  359;  Hilts  v.  HiUs,  43 
Or.  162,  72  Pac.  697;  In  re  Conant, 
43  Or.  530,  11  Pac.  1018;  Bade  v. 
Hibberd,  50  Or.  501,  93  Pac.  364; 
Mann  v.  Carson,  120  Mich.  631,  79 
N.  W.  941 ;  Day  etc.  Lumber  Co.  v. 
Mack,  24  Ky.  L.  Rep.  640,  69  S. 
W  712;  Holman  v.  Chevaillier.  14 
Tex.  337.  It  is  presumed  to  be  re- 
corded when  filed  for  record.  Eu- 
faula  Nat.  Bank  v.  Prewett,  128 
Ala.  470.  30  So.  731;  Farabee  v. 
McKerrihan,    172    Pa.    St.    234,    33 


Atl.  583,  51  Am.  St.  Rep.  734;  She- 
bel  V.  Bryden,  114  Pa.  St.  147,  6 
Atl.  905. 

iBigelow  V.  Topliff,  25  Vt.  274, 
60  Am.  Dec.  264.  In  that  case, 
Isham,  J.,  in  delivering  the  opinion 
of  the  court,  said:  "What  will  be 
a  sufficient  record  for  that  pur- 
pose, depends  upon  the  object  and 
general  provisions  of  the  act.  In 
some  cases,  the  instrument  must  be 
recorded  at  length  upon  the  book 
of  records,  and  it  will  have  no  ef- 
fect until  it  is  so  recorded.  This 
is  true  in  all  cases  where  the  en- 
rollment is  necessary  to  the  invest- 
ing of  the  title.  In  such  case,  it  is 
made  a  condition  precedent,  and  no 
right  or  title  passes  until  the  stat- 
ute is  strictly  complied  with.  This 
rule  prevails  where  recording  is  re- 
quired of  the  proceedings  of  the 
collector  in  sales  of  land  for  taxes  ; 
Clark  V.  Tucker,  6  Vt.  181;  Gid- 
dings  V.  Smith,  15  Vt.  344.  So,  in 
the  levy  of  executions  upon  real 
estate,  the  record  of  the  execution 
and  levy  is  necessary  to  pass  the 
title:  Morton  v.  Edwin,  19  Vt.  81. 
In  these  cases,  the  object  of  the 
record  is  not  simply  notice,  but  it 
is  an  essential  link  in  the  chain  of 
evidence  in  the  proof  of  title  to  the 
estate.  Where  the  object  of  the 
record  is  notice,  merely  the  statute 
is  complied  with  when  the  party 
has  left  the  instrument  with  the 
recording  officer   for  that  purpose, 


1248 


THE  LAW  OF  DEEDS. 


[chap.  XXII, 


§  680.  Mistake  of  copying  deed  in  record — Conflict- 
ing views. — A  deed  may  be  executed  in  every  particular 
as  required  by  law,  may  be  properly  acknowledged,  deposited 
with  the  proper  officer  for  registration,  yet  may  not  -be  cor- 
rectly copied  by  the  recording  officer  into  the  record-books. 
In  such  a  case,  a  searcher  of  the  records  is  compelled  to  as- 


with  directions  for  its  immediate 
record.  This  construction  is  not  to 
be  considered  as  an  open  question, 
but  as  settled  by  the  decisions  of 
this  court,  as  well  as  by  that  prac- 
tical construction  which  it  has  re- 
ceived since  the  passage  of  the  act. 
This  principle  was  recognized  by 
this  court  in  the  case  of  Ferris  v. 
Smith,  24  Vt.  27.  In  that  case,  the 
act  required  'the  deputation  and 
certificate  of  the  oath  of  office  of  a 
deputy  sheriff  to  be  recorded  in  the 
county  clerk's  office,  and,  until  re- 
corded, the  official  acts  of  such  dep- 
uty were  not  valid.'  The  object 
of  the  act  was  notice,  and  lodging 
that  deputation  and  certificate  with 
the  county  clerk  for  record,  was 
held  a  sufficient  compliance  with 
the  act  to  invest  him  with  the  pre- 
rogatives of  the  office,  and  render 
valid  his  official  acts,  though  the 
deputation  and  certificate  had  not 
been  recorded  in  extenso  upon  the 
records.  In  Connecticut,  the  same 
rule  prevails,  and  leaving  the  deed 
for  record  with  the  certificate  of 
the  clerk  thereon,  that  it  was  so 
left  is  sufficient  to  protect  the  title 
as  against  the  grantor,  as  well  as 
subsequent  purchasers  and  credit- 
ors :  Hine  v.  Roberts,  8  Conn.  347. 
The  difference  in  phraseology  be- 
tween our  statute  and  theirs  is  not 
such  as  to  justify  a  different  con- 
struction,    particularly     where     the 


practical  construction  of  the  act  has 
been  uniformly  the  same."  Chan- 
cellor Kent,  in  a  note  to  his  Com- 
mentaries, says :  "The  statute  of 
New  York  gives  priority  to  the  con- 
veyance which  'shall  be  first  duly 
recorded';  but  it  adds  that  it  shall 
be  'considered  as  recorded  from 
the  time  of  the  delivery  to  the  clerk 
for  that  purpose.'  A  provision  to 
the  same  effect  is  in  the  Massa- 
chusetts Revised  Statutes  for  1836, 
though  no  doubt  the  previously  ex- 
isting rule  of  law  was  the  same. 
This  prevents  the  question  which 
Mr.  Bell  says  has  arisen  in  Scot- 
land, between  a  sasine  first  tran- 
scribed, though  last  presented,  and 
a  sasine,  which,  by  the  minute- 
book,  is  proved  to  have  been  first 
presented,  though  last  transcribed. 
He  admits,  however,  the  better  con- 
struction of  the  statute  to  be  that 
the  minute-book  of  the  time  of  the 
presentation  of  the  instrument  was 
intended  to  be  the  regulator  of  the 
order  of  preference  by  priority: 
1  Bell's  Com.  679";  4  Kent's  Com. 
(12th  ed.),  star  page  459.  In  Fer- 
ris v.  Smith,  24  Vt.  27,  32,  the 
court  said,  with  reference  to  con- 
veyances, where  the  title  is  passed 
or  the  right  acquired  by  act  of  the 
parties,  as  in  the  conveyance  of  real 
estate  by  deed,  that  "though  a  rec- 
ord is  necessary  in  order  to  give 
full    effect   to   the   transaction    for 


CHAP.   XXII.]  REGISTRATION  OF  DEEDS.  1249 

sume  that  the  information  they  contain  is  true.  He  rarely  has 
an  opportunity  to  inspect  the  original  deed,  and  even  if  he  has 
such  an  opportunity,  deems  an  inspection  of  the  original  un- 
necessary. At  the  same  time,  the  person  who  has  recorded 
his  conveyance  has  done  all  in  his  power  to  secure  a  proper 
registration.  If  a  mistake  is  made  in  the  copying  of  the  deeds, 
the  fault  is  not  his.  A  very  interesting  question  arises  when  a 
mistake  has  been  made  by  the  officer  in  spreading  the  deed  on 
the  record.  Shall  the  purchaser  who  acted  in  good  faith  and 
acquired  his  rights  in  the  honest  belief  that  the  records  correct- 
ly showed  the  various  claims  upon  the  property,  suffer  be- 
cause the  officer  failed  to  do  his  duty,  or  shall  the  person  who 
presented  his  conveyance  for  registration  bear  the  conse- 
quences of  the  officer's  negligence?  The  decisions  are  con- 
tradictory on  this  question.  On  one  side  it  is  asserted  that  the 
person  who  files  a  deed  for  record  is  not  responsible  for  the 
officer's  neglect,  and  on  the  other,  it  is  declared  with  equal 
confidence  that  the  records  do  not  give  notice  of  what  they 
do  not  contain. 

§  681.  View  that  the  grantee  is  not  affected  by  mis- 
take in  copying  the  deed. — On  one  hand,  on  the  ground 
that  a  deed  is  considered  as  recorded,  when  it  is  left  with  the 

collateral  purposes,  it  is  made  so  notice  to  third  persons.  In  other 
as  the  medium  of  general  notice.  words,  the  deed  or  instrument  thus 
And,  as  a  public  recording  office  is  deposited  and  received  is  deemed 
a  place  where  all  persons  have  the  to  be  of  record  or  recorded:  Mar- 
right  to  apply  for  information,  as  bury  v.  Madison,  1  U.  S.  Cond. 
well  in  regard  to  instruments  R.  273,  274.  This  is  on  condition, 
lodged  there  for  record  as  to  the  to  be  sure,  that  a  full  and  proper 
records  already  made,  the  act  of  record  be  ultimately  made,  and  that 
the  party  in  lodging  the  evidence  the  party  shall  in  no  way  interfere 
of  his  title  in  such  an  office,  for  to  prevent  or  delay  the  making  it ; 
the  bona  fide  purpose  of  having  it  Sawyer  v.  Rogers  v.  Adams,  8  Vt, 
recorded  without  delay,  and  the  re-  172,  30  Am.  Dec.  459."  See,  also, 
ception  of  it  by  the  recording  offi-  Davis  v.  Ownsby,  14  Mo.  170,  55 
ccr  for  the  same  purpose,  are  held  Am.  Dec.  105. 
to  operate  like  the  record  itself  as 
Deeds,  Vol.  II.— 79 


1250 


THE  LAW  OF  DEEDS. 


[chap.  XXII. 


officer  for  the  purpose  of  registration,  it  is  held  that  by  deposit- 
ing the  deed  with  the  proper  officer,  the  grantee  has  done  all 
that  is  required  of  him,  and  although  the  officer  records  only 
a  portion  of  the  instrument,  or  omits  to  record  it  at  all,  the 
rights  of  the  grantee  cannot  thereby  be  injuriously  affected.^ 


2  Riggs  V.  Boylan,  4  Biss.  445 ; 
Polk  V.  Cosgrove,  4  Biss.  437 ;  Mar- 
igold V.  Barlow,  61  Miss.  593,  48 
Ana.  Rep.  84;  Kiser  v.  Heuston, 
38  III.  252;  Bedford  v.  Tupper, 
30  Hun,  174;  Merrick  v.  Wallace, 
19  111.  486;  Wood's  Appeal,  82  Pa. 
St.  116;  s.  c.  13  Am.  Law  Reg. 
255;  Flowers  v.  Wilkes,  1  Swan, 
408;  Lee  v.  Bermingham,  30  Kan. 
312;  Bank  of  Kentucky  v.  Haggin, 
1  Marsh.  A.  K.  306;  Brooke's  Ap- 
peal, 64  Pa.  St.  127;  Nichols  v. 
Reynolds,  1  R.  I.  30,  36  Am.  Dec. 
238;  Musser  v.  Hyde,  2  Watts  & 
S.  314;  Oats  v.  Walls,  28  Ark.  244; 
Mims  V.  Mims,  35  Ala.  23 ;  Throck- 
morton V.  Price,  28  Tex.  605,  91 
Am.  Dec.  334;  Beverly  v.  Ellis, 
1  Rand.  202;  Board  of  Commrs. 
V.  Babcock,  5  Or.  472;  Case  v.  Har- 
gadine,  43  Ark.  144;  Nichols  v. 
Reynolds,  1  R.  I.  30,  36  Am.  Dec. 
238;  Marlet  v.  Hinman,  11  Wis. 
136,  20  Am.  St.  Rep.  102;  Gillespie 
V.  Rogers,  146  Mass.  610;  Farns- 
worth  V.  Jordain,  15  Gray,  517; 
Tracy  v.  Jenks,  15  Pick.  465;  Ames 
V.  Phelps,  18  Pick.  314;  Fuller  v. 
Cunningham,  105  Mass.  442;  Wood 
V.  Simons,  110  Mass.  116.  See, 
also.  Poplin  v.  Mundell,  27  Kan. 
138;  Glading  v.  Frick,  88  Pa.  St. 
460;  Lignoski  v.  Crooker,  86  Tex. 
324,  24  S.  W.  Rep.  278;  Freiberg 
V.  Magale,  70  Tex.  116,  7  S.  W. 
Rep.  684;  Woodson  v.  Allen,  54 
Tex.   551 ;   Converse  v.   Potter,  45 


N.  H.  385 ;  Tousley  v.  Tousley,  5 
Ohio  St.  78;  Brown  v,  Kirkman, 
1  Ohio  St.  116;  Green  v.  Carring- 
ton,  16  Ohio  St.  548,  91  Am.  Dec. 
103;  Lewis  v.  Hinman,  56  Conn. 
55,  13  Atl.  Rep.  143;  Hine  v.  Rob- 
bins,  8  Conn.  342;  Franklin  v.  Can- 
non, 1  Root,  500;  Watkins  v.  Wil- 
hoit,  104  Cal.  395 ;  Fouche  v,  Swain, 
80  Ala.  151 ;  Chatham  v.  Bradford, 
50  Ga.  327,  15  Am.  Rep.  692;  Hiatt 
v.  Calloway,  7  B.  Mon.  178;  Bank 
v.  Haggin,  1  Marsh.  A.  K.  306; 
Mutual  Insurance  Co.  v.  Dake,  87 
N.  Y.  257;  Taylor  v.  Hotchkiss,  2 
La.  Ann.  917;  Falconer's  Succes- 
sion, 4  Rob.  5;  Payne  v.  Pavey,  29 
La.  Ann.  116;  Swan  v.  Vogle,  31 
La.  Ann.  38;  Swepson  v.  Bank,  9 
Lea,  713;  Woodward  v.  Boro,  16 
Lea,  678;  Mangold  v.  Barlow,  61 
Miss.  593,  48  Am.  Rep.  84.  When 
a  deed  is  filed  for  record  it  oper- 
ates as  constructive  notice,  though 
the  officer  may  fail  to  observe  the 
requirements  of  the  statute  in  rela- 
tion to  its  recordation:  Deming  v. 
Miles,  35  Neb.  739,  37  Am.  St.  Rep. 
464.  See,  also,  Perkins  v.  Strong, 
22  Neb.  725.  See,  also,  Franklin 
V.  Cannon,  1  Root,  500;  Hartmyer 
v.  Gates,  1  Root,  61 ;  Judd  v. 
Woodruff,  2  Root,  298;  McDonald 
V.  Leach,  Kirby,  72;  McGregor  v. 
Hill,  3  Stewt.  &  P.  397.  And  see 
Clader  v.  Thomas,  89  Pa.  St,  343; 
Gaskill  v.  Badge,  3  Lea  (Tenn.), 
144.    Where  a  statute  provides  that 


CHAP.   XXU.]  REGISTRATION   OF  DEEDS.  1251 

A  statute  in  Illinois  provided  that  after  a  specified  date  "all 
deeds  and  other  title  papers  which  are  required  to  be  recorded 
shall  take  effect  and  be  in  force  from  and  after  the  time  of  fil- 
ing the  same  for  record,  and  not  before,  as  to  all  subsequent 
creditors  and  purchasers  without  notice,  and  all  such  deeds  and 
title  papers  shall  be  adjudged  void,  as  to  all  such  creditors  and 
subsequent  purchasers  without  notice,  until  the  same  shall  be 
filed  for  record  in  the  county  where  the  said  lands  may  lie." 
The  recorder  in  recording  a  deed  raisdescribed  the  premises  in 
his  record.  The  court  held  that  the  grantee  performed  his 
duty  by  leaving  his  deed  for  record  with  the  proper  officer; 
and  the  mistake  in  the  record  did  not  affect  the  question  of 
notice  given  by  filing  the  deed  for  record.^  Commenting  on 
the  statute  above  quoted,  Mr.  Justice  Breese  said :  "This  was 
the  law  in  force  at  the  time  of  the  execution  of  the  deed  to 
Hugunin,  and  under  it,  all  the  duty  he  had  to  perform  to  make 
it  available  against  the  world,  was  to  place  it  with  the  recorder 
to  be  filed  for  record.  Before  that  time  it  had  effect  only  as 
against  the  grantors — after  that  time,  it  took  effect  and  was  in 
force  against  all  persons.  It  is  only  by  virtue  of  this  law 
that  the  plaintiff  can  claim  to  postpone  defendant's  deed,  and 
destroy  its  eft'ect  as  against  his  purchase  at  the  sheriff's  sale. 
He  is,  in  effect,  claiming  to  enforce  a  statute  penalty  imposed 

an  instrument  shall  be  operative  as  deed"  is  not  affected  by  failure  of 

a  record  from  the  time  of  its  de-  the    clerk    to    record    it    or   by    his 

livery  to  the   proper  office  the   in-  recording  it  in  a  wrong  book:  Dur- 

strument  is  constructive  notice  even  rence    v.    Northern    etc.    Bank    of 

though  improperly  recorded  or  not  Philadelphia,  117  Ga.  385,  43  S.  E. 

record   at  all  by  the  recording  of-  726.    The  record  title  to  real  estate 

ficer:   Chapman  &  Co.  v.  Johnson,  may  be  relied  upon  by  one  dealing 

142  Ala.  633,  4  Am.  &  Eng.   Ann.  tlierewith  in  the  absence  of  actual 

Cas.    559;    Scaling   v.   Wichita    etc.  knowledge  of   the  title   in   fact   or 

Bank,    39   Tex.    Civ.    App.    154,    87  of  facts  sufficient  to  put  him  on  in- 

S.   W    715;   Roberson  v.   Downing  quiry:    Friend    v.    Yahr,    126    Wis, 

Co.,    120  Ga.   836,    1    Am.   &   Eng.  291,    1    L.R.A.(N.S.)    891,    109    N. 

Ann.   Cas.  757;   Hayden   v.   Pierce,  W.  997,    110  Am.   St.  Rep.  924. 

165   Mass.  359.     The  admission   of  3  Merrick  v.  Wallace,  19  IlL  486. 
a  deed  in  evidence  as  a  "registered 


1252  THE  LAW  OF  DEEDS.  [CHAP.  XXII. 

Upon  the  grantee  in  the  deed,  by  reason  of  his  having  omitted 
to  do  something  the  law  required  him  to  do  to  protect  him- 
self and  preserve  his  rights.  The  law  never  intended  a  gran- 
tee should  suffer  this  forfeiture,  if  he  has  conformed  to  its 
provisions.  The  plaintiff  claiming  the  benefit  of  this  statute, 
being,  as  it  is,  in  derogation  of  the  common  law,  and  con- 
ferring a  right  before  unknown,  he  must  find  in  the  provisions 
of  the  statute  itself,  the  letter  which  gives  him  that  right.  To 
the  statute  alone  must  we  look  for  a  purely  statutory  right. 
All  that  this  law  required  of  the  grantee  in  the  deed  was  that 
he  should  file  his  deed  for  record  in  the  recorder's  office,  in 
order  to  secure  his  rights  under  the  deed.  When  he  does  that, 
the  requirements  of  the  law  are  satisfied,  and  no  right  to  claim 
this  forfeiture  can  be  set  up  by  a  subsequent  purchaser.  The 
statute  does  not  give  to  the  subsequent  purchaser  the  right  to 
have  the  first  deed  postponed  to  his,  if  the  deed  is  not  actually 
recorded,  but  only  if  it  is  not  filed  for  record.  If  it  was  not 
properly  recorded  after  the  grantee  had  left  it  to  be  filed  for 
record,  and  by  reason  thereof  a  subsequent  purchaser  is  misled, 
he  surely  has  no  right  to  say  that  the  first  purchaser  shall  suf- 
fer by  this  omission  of  the  recorder  to  perform  his  duty,  rath- 
er than  himself.  The  statute  leaves  such  a  loss  to  fall  where 
the  common  law  left  it.  In  such  a  case  the  subsequent  pur- 
chaser cannot  call  in  aid  the  statute,  because  his  case  does  not 
come  within  its  provisions.  In  such  a  case  the  statute  is  silent, 
and  the  common  law  must  take  its  course.  He  must  seek  his 
remedy  against  the  recorder."  * 

§  682.  Reasonable  precaution. — Where,  under  the 
registration  laws,  the  filing  of  a  deed  is  equivalent  to  its  ac- 
tual registration,  the  fact  that  a  subsequent  bopia  Ude  pur- 
chaser for  value  and  without  notice  took  every  reasonable  pre- 
caution to  ascertain  the  condition  of  the  title,  and  bought  and 

*  Merrick  v.  Wallace,  19  III.  486,     497. 


CHAP.    XXII.] 


REGISTRATION   OF  DEEDS. 


1253 


paid  for  the  land  only  on  the  assurance  of  the  recording  offi- 
cer that  there  was  in  his  office  no  evidence  of  a  conflicting 
right  to  the  property,  cannot  give  his  deed  precedence  over 
such  prior  deed  filed  for  record,  but  not  actually  recorded.^    In 


5  Throckmorton  v.  Price,  28  Tex. 
606,  91  Am.  Dec  334.  Said  the 
court:  "In  whatever  manner  the 
question  presented  in  this  case  is 
decided,  it  must  operate  to  the  in- 
jury of  innocent  parties;  there  is, 
therefore,  no  equitable  considera- 
tion favoring  a  preference  of  the 
parties  on  one  side  over  those  on 
the  other.  The  point  in  issue  be- 
tween them  must  be  determined 
by  an  application  of  the  provisions 
of  the  registration  laws  to  the  facts 
of  the  case.  When  this  is  done, 
there  cannot  be  the  slightest  doubt 
as  to  a  correct  decision  of  the  ques- 
tion before  us,  and  that  the  instruc- 
tion given  to  the  jury  w^as  errone- 
ous. But  for  the  registration  law, 
the  older  title  would  obviously  con- 
vey the  better  right.  And  it  is  the 
uniform  provisions  of  these  laws 
that  such  instruments  as  must  be 
recorded  shall  be  valid  as  to  all 
subsequent  purchasers  for  a  valu- 
able consideration  without  notice, 
and  as  to  creditors  from  the  date 
when  such  instrument  shall  be 
properly  acknowledged,  proved,  or 
certified  and  delivered  to  the  clerk 
for  record,  and  from  that  time 
only.  (O.  &  W.,  arts.  1726,  1727, 
1730,  1731.)  And  lest  there  should 
be  any  doubt  in  the  matter,  it  is 
further  enacted  that  any  instru- 
ment required  to  be  recorded  shall 
be  considered  as  recorded  from  the 
time  it  was  deposited  for  record 
with  the  clerk.  (O.  &  W.,  art. 
1709.)     And  to  enable  all  persons 


who  may  wash  to  examine  the  of- 
fice to  ascertain  what  instruments 
have  been  deposited  for  record,  it 
is  also  made  the  duty  of  the  clerk 
(O.  &  W.,  art.  1707),  when  any 
instrument  has  been  deposited  for 
record  to  enter  in  alphabetical  or- 
der, in  a  book  to  be  provided  for 
that  purpose,  the  names  of  the  par- 
ties to  such  instrument,  the  date 
and  nature  thereof,  and  the  time 
of  its  delivery  for  record.  And 
as  a  further  facility  and  security 
for  persons  wishing  to  make  an  ex- 
amination in  the  office  of  the  re- 
corder for  instruments  required  by 
law  to  be  recorded,  the  clerk,  after 
recording  any  such  instrument,  is 
directed  to  enter  the  same  in  the 
index-books  which  he  is  required 
to  keep  of  recorded  instruments. 
(O.  &  W.,  arts.  1710,  1711,  1712.) 
If  the  clerk  has  neglected  to  com- 
ply with  these  plain  and  simple 
requirements  of  the  statute,  and 
appellees  have  been  thereby  misled 
to  their  injury,  they  cannot  claim 
redress  for  such  injury  from  ap- 
pellants, who  have  been  in  no  de- 
fault. The  law  did  not  impose  up- 
on them  the  responsibility  of  seeing 
that  the  duties  prescribed  by  the 
statute  for  the  protection  and  se- 
curity of  other  parties,  were,  in 
fact,  faithfully  discharged  by  the 
clerk.  Registration  laws  of  a  gen- 
eral similarity  to  ours  have  been 
enacted  in  most  of  the  other  States, 
yet  we  have  been  able  to  find  no 
case    in    which   the   first    deed   has 


1254 


THE  LAW  OF  DEEDS. 


[chap.  XXI.T. 


Virginia,  it  is  held  that  although  the  deed  may  be  lost  by  the 
negligence  of  the  recorder,  or  may  be  stolen  from  his  office, 
it  must  be  considered  as  recorded,  if  it  has  been  left  with  him 
for  record.^     Where  this  rule  prevails,  it  is  possible  that  a 


been  postponed  in  favor  of  the  sec- 
ond, from  the  faihire  of  the  clerk 
to  record  the  prior  deed  as  directed 
by  the  statute,  while  the  contrary 
has  been  frequently  decided."  And 
see  Woodson  v.  Allen,  54  Tex.  551. 
In  Oats  V.  Walls,  28  Ark.  244, 
247,  the  court  said :  "Our  own 
court,  through  Justice  Bennett,  in 
the  case  of  Harrison  &  Stewart  v. 
Lewis,  Commissioner,  26  Ark.  154, 
said :  'The  certificate  of  entry  now 
before  us  was  issued  in  strict  con- 
formity to  the  above  enactment, 
with  the  exception  of  making  a 
note  of  such  entry  on  his  town- 
ship maps,  and  in  his  books,  to  be 
kept  for  that  purpose.  It  is  a  well- 
established  principle  that  when  an 
individual,  in  the  prosecution  of  a 
right,  does  everything  which  the 
law  requires  him  to  do,  and  he  fails 
to  obtain  his  right  by  the  miscon- 
duct or  neglect  of  a  public  officer, 
the  law  will  protect  him' :  Lytle 
V.  The  State,  9  How.  333,  13  L. 
ed.  160.  In  the  United  States  v. 
Castillero,  2  Black,  97,  17  L.  ed. 
360,  the  Supreme  Court  of  the 
United  States  say:  'Besides,  it  is 
a  universal  rule  that  omissions  by 
a  public  officer,  in  the  mode  of 
complying  with  forms  prescribed 
to  him  as  his  duty,  are  not  permit- 
ted to  affect  the  party' :  Nichols  v. 
Reynolds,  1  R.  I.  36,  36  Am.  Dec. 
238.  In  5  Marsh.  J.  J.  558,  it  is 
said  the  mistake  of  the  officer  ought 
not  to  prejudice  the  rights  of  the 
parties.     To   the    same   effect,    see 


Merrick  v.  Wallace,  19  111.  486. 
3  Peters,  338,  7  L.  ed.  699.  That 
the  grantee  was  only  bound  to 
properly  file  his  deed  for  record, 
and  thereafter  it  was  the  duty  of 
the  clerk  (for  the  performance  of 
which  the  clerk  alone  is  responsi- 
ble) to  note  the  filing  and  enter  it 
upon  the  record,  is,  in  effect,  held 
by   the   above   and   other   cases." 

The  record  is  not  vitiated  by  the 
fact  that  it  contains  no  copy  of  the 
seal,  or  any  mark  to  indicate  a 
seal.  It  is  sufficient  if  the  deed 
which  is  recorded  purports  to  be 
under  seal :  Smith  v,  Dall,  13  Cal. 
510.  And  see  Jones  v.  Martin,  16 
Cal.  165. 

6  Beverly  v.  Ellis,  1  Rand.  102. 
The  court  said  that  the  construc- 
tion of  the  words  of  a  section 
which  gave  a  deed  priority  if  filed 
for  record,  "and  recorded  accord- 
ing to  the  directions  of  this  act," 
would  not  be  tolerated,  "which 
would  make  it  depend  on  the  acts 
or  omissions  of  the  clerk,  over 
whom  he  has  no  control,  and  with 
whom  the  law  compels  him  to  de- 
posit his  deed.  A  different  con- 
struction would  be  attended  with 
great  mischief.  The  act  having 
prescribed  no  time  to  the  clerk  to 
record  a  deed  by  spreading  it  on 
the  record,  its  validity  would  be 
fluctuating  and  uncertain,  and  the 
object  of  the  act  defeated.  If  there 
is  any  defect  in  the  notice  when 
searched  for,  the  subsequent  pur- 
chaser,   perhaps,    has    his    remedy 


CHAP.   XXII. i 


REGISTRATION   OF  DEEDS. 


1255 


party,  in  the  registration  of  whose  deed  a  mistake  was  made, 
might  be  estopped,  if,  after  knowledge  of  the  defect  in  the 
record,  he  is  guilty  of  laches  in  failing  to  give  notice  of  his 
title.'' 

§  683.  Contrary  view  that  purchaser  is  bound  by  only 
what  appears  upon  the  record,  and  grantee  must  suffer 
for  mistake  in  record. — On  the  other  hand,  the  doctrine 
announced  by  many  courts  is,  that  the  records  are  only  notice 
of  what  they  contain,  and  that  if  a  deed  has  been  filed  for  rec- 
ord, but  incorrectly  copied,  the  grantee  filing  the  deed  must 
suffer  for  any  error  contained  in  the  record,  rather  than  an  in- 
nocent purchaser  who  has  parted  with  value  in  the  belief  that 
the   records   truly  disclosed  all   the   rights  of   others.^     The 


against  the  clerk,  if  it  was  his  duty 
to  make   it  perfect." 

'  See  Lee  v.  Bermingham,  30 
Kan.  312. 

8  Potter  V.  Dooley,  55  Vt.  512; 
Jennings  v.  Wood,  20  Ohio,  261 ; 
State  V.  Davis,  96  Ind.  539;  Bar- 
nard V.  Campau,  29  Mich.  162; 
White  V.  McGarry,  2  FHpp.  C.  C. 
572;  Terrell  v.  Andrew  County,  44 
Mo.  309;  Brydon  v.  Campbell,  40 
Md.  331;  Payne  v.  Pavey,  29  La. 
Ann.  116;  Miller  v.  Bradford,  12 
Iowa,  14;  Sanger  v.  Craigue,  10 
Vt.  555;  New  York  Life  Ins.  Co. 
V.  White,  17  N.  Y.  469;  Heistner  v. 
Fortner,  2  Binn.  40,  4  Am.  Dec. 
417;  Gilchrist  v.  Gough,  63  Ind. 
576,  30  Am.  Rep.  250;  s.  c.  19  Alb. 
L.  J.  276;  Disque  v.  Wright,  49 
Iowa,  538;  s.  c.  13  West.  Jur.  34, 
158;  Taylor  v.  Hotchkiss,  2  La. 
Ann.  917.  See,  also,  Beekman  v. 
Frost,  18  Johns.  544,  9  Am.  Dec. 
246;  Frost  v.  Beekman,  1  Johns. 
Ch.  299;  Chamberlain  v.,  Bell,  7 
Cal.  292,  68  Am.  Dec.  260;  Taylor 


V.  Harrison,  47  Tex.  454,  26  Am. 
Rep.  304;  Sinclair  v.  Slawson,  44 
Mich.  123,  38  Am.  Rep.  235;  Don- 
ald V.  Beales,  57  Cal.  399;  Page  v. 
Rogers,  31  Cal.  293;  Smith  v.  Low- 
ry,  113  Ind.  Zl ,  15  N.  E.  Rep.  17 
McLarren  v.  Thompson,  40  Me 
284;  Hill  v.  McNichol,  76  Me.  314 
Stedman  v.  Perkins,  42  Me.  130 
Ritchie  v.  Griffiths,  1  Wash.  St.  429 
22  Am.  St.  Rep.  155,  25  Pac.  Rep 
341 ;  Cady  v.  Purser,  131  Cal.  552 
Quackenbush  v.  Reed,  102  Cal.  493 
Watkins  v.  Wilhoit,  104  Cal.  395. 
In  Cady  v.  Purser,  supra,  the  court 
says :  "The  principle  upon  which 
the  rule  rests  is,  that  as  under  the 
provisions  of  the  recording  act,  if 
the  grantee  of  an  interest  in  lands 
would  protect  himself  against  sub- 
sequent purchasers  or  encumbran- 
cers, he  must  give  notice  of  his  in- 
terest, and  as  the  statute  provides 
for  constructive  notice  in  the  place 
of  actual  notice,  it  is  incumbent 
upon  him  to  comply  with  all  the  re- 
quirements    prescribed     for     such 


1256  THE  LAW  OF  DEEDS.  [CHAP.  XXII. 

courts  that  declare  this  rule,  while  admitting  for  the  most  part 
that  the  record  of  a  deed  becomes  effective  from  the  time  that 
a  deed  is  filed  with  the  recording  officer  for  registration,  draw 
a  distinction  in  cases  where  after  filing  the  deed  its  content^ 
are  not  correctly  spread  upon  record.  They  hold  that  the  pur- 
chaser is  not  bound  to  enter  into  a  long  and  laborious  search 
into  the  original  papers  to  ascertain  whether  the  recorder  has 
faithfully  performed  his  duty  or  not.  They  consider  that  the 
obligation  of  giving  notice  is  placed  upon  the  person  who  holds 
the  title,  and  that  he,  and  not  an  innocent  purchaser,  must 
suffer  the  consequences  of  an  imperfect  performance  of  this 
duty.  The  risk  of  a  failure  properly  to  place  a  document  on 
record  must  be  borne  by  the  person  who  seeks  the  benefit  of  the 
registration  laws,  whether  the  failure  is  his  own  fault  or  the 
fault  of  the  officer.^  Under  this  view  it  is  considered  that  the 
recording  officer,  is,  for  the  purpose  of  correct  transcription 
of  an  instrument  into  the  proper  book  of  record,  the  agent  of 
the  party  recording  the  instrument,  and  that  in  the  eye  of  the 
law,  errors  and  omissions  in  the  record  are  his  errors  and 
omissions,^  so  that  where  there  is  a  conflict  between  the  actual 
record  as  shown  by  the  book  of  record,  and  the  constructive 
record  by  the  indorsement  made  upon  the  instrument  at  the 

constructive  notice,  one  of  which  similarity  between  them  as  they 
is  the  correct  transcription  of  the  are  recorded,  the  court  will  take 
instrument  into  the  appropriate  into  consideration  the  evidence  af- 
book:  Neslin  v.  Wells,  104  U.  S.  forded  by  the  records  themselves 
428,  26  L.  ed.  802;  Terrell  v.  An-  as  to  which  has  been  more  care- 
drew  County,  44  Mo.  309.  For  this  fully  registered,  the  situation  of 
purpose  the  recorder  is  the  agent  of  the  property  as  described  in  each, 
the  grantee  and  the  errors,  or  omis-  and  the  conduct  of  the  parties  as 
sions  of  the  recorder  in  making  it  relates  to  the  property  in  dispute: 
such  transcriptions  are  his  errors  Stinson  v.  Doolittle,  50  Fed.  Rep. 
or  omissions   in  the   same  manner  12. 

as   are   the   errors   of   a    sheriff   in  ^  People  v.  Burns,  161  Mich.  169, 

executing  a  writ,  or  of  a  clerk  in  125  N.  W.  740. 

recording  an  order  or  a  judgment."  *  Cady    v.    Purser,    131    Cal.    552, 

Where  a  deed  appears  to  have  been  63  Pac.  844,  82  Am.  St.  Rep.  391. 
recorded  twice,  and  there  is  a  dis- 


CHAP.    XXII.]  REGISTRATION   OF  DEEDS.  1257 

time  it  was  filed  for  record,  the  actual  record  as  shown  by  the 
book  must  prevail.^    Speaking  of  a  provision  of  the  code  that 
"an  instrument  is  deemed  to  be  recorded,  when  being  duly  ac- 
knowledged or  proved,  and  certified,  it  is  deposited  in  the  re- 
corder's office  with  the  proper  officer  for  record,"  the  court 
said  it  must  be  read  in  connection  with  the  section  that  "every 
conveyance  of  real  property  acknowledged  or  proved  and  cer- 
tified and  received  as  prescribed  by  law,  from  the  time  it  is 
filed  with  the  recorder  for  record,  is  constructive  notice  of 
the   contents    thereof    to    subsequent   purchasers    and    mort- 
gagees," and  that  each  provision  quoted  must  be  construed 
with   reference  to  the  purposes   for  which   it  was  enacted.^ 
"For  the  purpose  of  complying  with  a  statutory  requirement," 
says  the  court,  "as  in  the  case  of  official  bonds  or  certificates 
of  marriage,  where  the  evident  purpose  of  the  statute  is  to 
make  the  instrument  a  matter  of  public  record,  or  when  the 
recording  of  an  instrument  is  an  essential  step  in  perfecting 
some  right  or  completing  some  act  of  the  party,  as  in  the  case 
of  a  declaration  of  homestead,  or  an  assignment  for  the  bene- 
fit of  creditors,  the  depositing  of  the  instrument  in  the  record- 
er's office  is  sufficient;  but  when  merely  making  a  record  of 
the  instrument  is  not  the  ultimate  purpose  of  the  party,  but 
the  recording  of  the  instrument  is  the  means  by  which  his 
ultimate  purpose  is  to  be  carried  into  effect,  as  when  his  pur- 
pose is  to  give  notice  of  his  interest  in  real  estate,  section  1213 
requires  not  only  that  the  instrument  shall  be  filed  with  the 
recorder  for  record,  but  that  it  shall  also  be  'recorded  as  pre- 
scribed by  law.'  "  *    The  obligation  to  give  notice,  it  is  said, 
rests  on  the  person  who  holds  the  title,  and  he  will  be  the  suf- 
ferer if  this  duty  is  not  properly  performed.^ 

2  Donald  V.  Beals,  57  Cal.  399.  ^  Cady  v.  Purser,  131  Cal.  552, 
See,  also,  Watkins  v.  Wilhoit,  104  63  Pac.  844,  82  Am.  St.  Rep.  391. 
Cal  395 ;  Meherin  v.  Oaks,  67  Cal.  ^  Terrell  v.  Andrew  County,  44 
57.  I^Io.  309. 

3  Cady  V.  Purser,  131  Cal.  552,  63 
Pac  844,  82  Am.  St  Rep.  39;. 


1258  THE  LAW  OF  DEEDS.  [CHAP.  XXII, 

§  684.  Fuller  presentation  of  this  view. — For  a  fuller 
presentation  of  the  view  taken  by  the  courts  adopting  this 
rule,  we  may  refer  to  a  case  in  Missouri,  where  Mr.  Justice 
Wagner,  in  delivering  the  opinion  of  the  court,  said:  "It  is 
contended  here  on  behalf  of  the  county,  that  according  to  our 
statute,  when  a  person  files  with  the  recorder  an  instrument, 
it  imparts  notice  of  its  real  contents  to  all  subsequent  purchas- 
ers, regardless  of  any  mistakes  that  the  recorder  may  commit 
in  placing  it  on  record;  that  the  statute  provides  that  every 
instrument  in  writing  certified  and  recorded  in  the  manner  pre- 
scribed shall,  from  the  time  of  filing  the  same  with  the  re- 
corder for  record,  impart  notice  to  all  persons  of  the  contents 
thereof;  and  all  subsequent  purchasers  and  mortgagees  shall 
be  deemed,  in  law  and  equity,  to  purchase  with  notice.  Ac- 
cording to  the  literal  interpretation  of  the  section,  no  notice 
is  imparted  till  the  instrument  is  actually  placed  on  record, 
and  then  it  relates  back  to  the  time  of  filing.  It  was,  no  doubt, 
the  intention  of  the  legislature  to  give  a  person  filing  an  in- 
strument or  conveyance  all  the  benefit  of  his  diligence;  and 
when  he  deposits  the  same  with  the  recorder,  and  has  it  placed 
on  file,  he  has  done  all  that  he  can  do,  and  has  complied  with 
the  requirement  of  the  law.  From  that  time  it  will  give  full 
notice  to  all  subsequent  purchasers  and  encumbrancers.  A 
person  in  the  examination  of  titles,  first  searches  the  records; 
and  if  he  finds  nothing  there,  he  looks  to  see  if  any  instru- 
ments are  filed  and  not  recorded.  If  nothing  is  found  and  he 
has  no  actual  notice,  so  far  as  he  is  concerned,  the  land  is  un- 
encumbered. If  he  finds  a  conveyance  he  goes  no  further;  he 
never  institutes  an  inquiry  to  find  whether  the  deed  is  correct- 
ly recorded  or  the  contents  literally  transcribed.  Indeed,  to 
attempt  to  prosecute  such  a  search  would  be  idle  and  nugatory. 
Grantees  do  not  usually  leave  their  deeds  lying  in  the  re- 
corder's office  for  the  inspection  of  the  public.  After  they 
are  recorded,  they  take  them  out  and  keep  them  in  their  pos- 
session.    In  a  large  majority  of  cases,  it  would  not  only  en- 


CHAP.   XXII.]  REGISTRATION  OF  DEEDS. 


1259 


tail  expense  and  trouble,  but  it  would  be  useless  to  attempt 
to  get  access  to  the  original  papers.  Hard  and  uncertain  would 
be  the  fate  of  subsequent  purchasers  if  they  could  not  rely 
upon  the  records,  but  it  must  be  under  the  necessity,  before 
they  act,  of  tracing  up  the  original  deed  to  see  that  it  is  cor- 
rectly recorded.  The  statute  says  that  when  the  deed  is  cer- 
tified and  recorded  it  shall  impart  notice  of  the  contents  from 
the  time  of  filing.  Certainly;  but  this  is  to  be  understood  in 
the  sense  that  the  deed  is  rightly  recorded,  and  the  contents 
correctly  spread  upon  the  record.  It  never  was  intended  to 
impose  upon  the  purchaser  the  burden  of  entering  into  a  long 
and  laborious  search  to  find  out  whether  the  recorder  had 
faithfully  performed  his  duty.  The  obligation  of  giving  the 
notice  rests  on  the  party  holding  the  title.  If  he  fails  in  his 
duty,  he  must  suffer  the  consequences.  If  his  duty  is  but  im- 
perfectly performed,  he  cannot  claim  all  the  advantages  and 
lay  the   fault  at  the  door  of  an   innocent  purchaser."  ^     In 


•Terrell  v.  Andrew  County,  44 
Mo.  309,  311.  In  Sawyer  v.  Adams, 
8  Vt.  172,  176,  30  Am.  Dec.  459, 
the  court,  per  Williams,  C.  J.,  say : 
"In  such  cases,  the  purchaser  may 
be  wholly  free  from  fault  or  negli- 
gence. He  may  deliver  his  deed 
to  the  proper  officer,  and  it  may  be 
returned  to  him  as  recorded,  but 
through  accident  or  design  it  is  not 
truly  recorded.  Subsequent  pur- 
chasers or  creditors  having  no  oth- 
er means  of  knowledge  of  the  con- 
tents of  the  deed  than  by  resort- 
ing to  the  records,  cannot  be  con- 
sidered as  having  notice  of  any 
other  conveyance  than  such  as  ap- 
peared on  record.  The  object  of 
recording,  as  has  already  been  no- 
ticed, is  for  the  purpose  of  notice 
to  after-purchasers  and  creditors. 
In  considering  what  is  necessary  to 
complete   a  record,   it   will  not  an- 


swer to  say  that  the  record  may  be 
so  made  as  entirely  to  defeat  the 
object  for  which  it  was  designed. 
The  purchaser  may  fairly  deliver 
his  deed  to  the  town  clerk.  The 
clerk  may  return  it  to  him  with  a 
regular  certificate  that  it  has  been 
recorded;  and  if  he  does  nothing 
more,  if  he  does  not  record  it  in 
fact,  there  is  no  actual  or  construct- 
ive notice  to  purchasers  of  the  ex- 
istence of  such  deed.  The  clerk 
is  guilty  of  fraud,  and  the  person 
who  left  the  deed  for  record  is  de- 
ceived ;  still  his  deed  is  not  re- 
corded and  no  title  passes  thereby, 
except  as  against  the  grantor  and 
his  heirs.  In  such  a  case  there  can 
be  no  doubt  that  the  purchaser  will 
lose  his  title  through  the  fault  or 
fraud  of  the  town  clerk."  See,  also, 
Huntington  v.  Cobleigh,  5  Vt.  49; 
Skinner    v.    McDaniel,    5    Vt.    539. 


1260  THE  LAW  OF  DEEDS.  [CHAP.  XXH. 

Iowa,  the  language  of  the  statute  of  1839,  was  that  an  instru- 
ment in  writing,  properly  certified  and  acknowledged,  "shall 
from  the  time  of  filing  the  same  with  the  recorder  for  record, 
impart  notice  to  all  persons  of  the  contents  thereof,  and  all 
subsequent  purchasers  and  mortgagees  shall  be  deemed  in  law 
and  equity  to  purchase  with  notice."  '  The  supreme  court  of 
that  State  placed  an  entirely  different  construction  upon  this 
statute  from  that  given  in  Illinois  to  one  of  similar  import.' 
Wright,  J,,  delivered  the  opinion  of  the  court,  and,  referring  to 
this  statute,  said :  "This  statute  in  our  opinion  was  only  in- 
tended to  fix  the  time  from  which  notice  to  subsequent  pur- 
chasers was  to  commence,  and  not  to  make  such  filing  or  de- 
positing notice  of  the  contents  after  the  same  was  recorded. 
After  the  record  of  the  deed,  the  record  itself  is  the  construc- 
tive notice  of  its  contents,  and  it  never  was  the  intention  of  the 
legislature  to  hold  a  subsequent  purchaser,  buying  after  the 
recording,  bound  by  the  contents  of  a  deed,  ever  so  improperly 
and  incorrectly  recorded,  because  at  some  time  a  deed  correct 
in  the  description  of  the  property  was  filed  with  the  recorder."  ' 

In  Jenning's  Lessee  v.  Wood,  20  Iowa,  524;  Disque  v.  Wright,  49 
Ohio,  261,  266,  it  is  said  by  Cald-  Iowa,  538.  In  Frost  v.  Beekman, 
well,  J.,  delivering  the  opinion  of  1  Johns.  Ch.  288,  the  Chancellor 
the  court :  "The  obligation  rests  said :  "The  true  construction  of  the 
on  the  party  holding  the  title  to  act  appears  to  be  that  the  registry 
give  the  notice.  He  controls  the  is  notice  of  the  contents  of  it  and 
deed;  he  can  put  it  on  record  or  no  more,  and  that  the  purchaser 
not  at  his  pleasure.  If  from  any  is  not  to  be  charged  with  notice  of 
cause  he  falls  short  of  giving  the  the  contents  of  the  mortgage,  any 
legal  notice,  the  consequences  must  further  than  they  may  be  contained 
fall  on  himself.  It  is  his  own  busi-  in  the  registry.  The  purchaser  is 
ness,  and  he  must  suffer  the  con-  not  bound  to  attend  to  the  correct- 
sequences  of  its  being  imperfectly  ness  of  the  registry.  It  is  the  busi- 
performed."  See  Curtis  v.  Root,  ness  of  the  mortgagee,  and  if  a 
28  111.  367.  mistake  occurs  to  his  prejudice,  the 
''Miller  v.  Bradford,  12  Iowa,  14.  consequences  of  it  lie  between  him 

8  For  case  in  Illinois,  see  Merrick  and  the  clerk,  and  not  between  him 
v.  Wallace,   19  111.  486,  §  681.  and  the  bona  Me  purchaser.     The 

9  Miller    v.    Bradford,    12    Iowa,  act    in    providing    that    all    persons 
19.     See,  also,  Miller  v.   Ware,  31  might  have  recourse  to  the  registry, 


CHAP.   XXII.]  REGISTRATION   OF  DEEDS.  1261 

§  685.  Views  of  Mr.  Pomeroy. — Mr.  Pomeroy,  in  his 
treatise  on  Equity  Jurisprudence,  takes  the  view  that  a  record 
is  constructive  notice  only  to  the  extent  that  it  is  a  true  copy 
of  the  original  instrument,  and  that  a  subsequent  purchaser 
may  act  upon  the  information  disclosed  by  the  records,  ir- 
respective of  the  question  whether  they  set  out  the  original 
deed  correctly  or  not.  He  says:  "A  record  is  a  constructive 
notice,  only  when,  and  so  far  as,  it  is  a  true  copy,  substan- 
tially, even  if  not  absolutely,  correct,  of  the  instrument  which 
purports  to  be  registered,  and  of  all  its  provisions.  Any  ma- 
terial omission  or  alteration  will  certainly  prevent  the  record 
from  being  a  constructive  notice  of  the  original  instrument, 
although  it  may  appear  on  the  registry  books  to  be  an  instru- 
ment perfect  and  operative  in  all  its  parts.  The  test  is  a  plain 
and  simple  one.  It  is,  whether  the  record,  if  examined  and 
read  by  the  party  dealing  with  the  premises,  would  be  an  actual 
notice  to  him  of  the  original  instrument,  and  of  all  its  parts 
and  provisions.  By  the  policy  of  the  recording  acts  such  a 
party  is  called  upon  to  search  the  records,  and  he  has  a  right 
to  rely  upon  what  he  finds  there  entered  as  a  true  and  com- 
plete transcript  of  any  and  every  instrument  affecting  the  title 

intended  that  as  the  correct  and  nor  is  it  repugnant  to  the  doctrine 
sufficient  source  of  information;  contained  in  the  books,  that  notice 
and  it  would  be  a  doctrine  produc-  to  a  purchaser  of  the  existence  of 
tive  of  immense  mischief  to  obhge  a  lease  is  notice  of  its  contents." 
the  purchaser  to  look,  at  his  peril,  See,  also,  Peck  v.  Mallams,  10  N. 
to  the  contents  of  every  mortgage,  Y.  518;  Ford  v.  James,  4  Keyes, 
and  to  be  bound  by  them,  when  300.  But  it  was  held  in  Simon- 
different  from  the  contents  as  de-  son  v.  Falihee,  25  Hun,  570,  that 
clared  in  the  registry.  The  regis-  a  release  of  mortgaged  land  is 
try  might  prove  only  a  snare  to  the  complete  when  it  is  left  with  the 
purchaser,  and  no  person  could  be  clerk  for  record,  and  that  where 
safe  in  his  purchase  without  hunt-  there  is  no  fraud  or  collusion,  the 
ing  out  and  inspecting  the  original  party  is  not  responsible  for  an  er- 
mortgage,  a  task  of  great  toil  and  ror  of  the  clerk  in  recording  it, 
difficulty.  I  am  satisfied  that  was  and  the  erroneous  record  in  such 
not  the  intention,  as  it  certainly  is  a  case  does  not  bind  the  party  cx- 
not  the  sound  policy  of  the  statute;  ecuting  tlie  release. 


1262  THE  LAW  OF  DEEDS.  [CHAP.  XXIL 

to  the  lands  with  respect  to  which  he  is  deahng.  A  record  can 
only  be  a  constructive  notice,  at  most,  of  whatever  is  contained 
within  itself."  ^  And  again :  "Furthermore,  the  record  of 
an  instrument  which  is  itself  duly  executed  and  entitled  to  be 
registered,  does  not  operate  as  a  constructive  notice,  unless  it 
is  made  in  the  proper  form  and  manner,  in  the  proper  book, 
as  required  by  the  statute.  The  policy  of  the  recording  acts 
is  that  those  persons  who  are  affected  with  constructive  notice 
should  be  able  to  obtain  an  actual  notice  and  even  full  knowl- 
edge by  means  of  a  search.  A  search  could  not,  ordinarily,  be 
successful  and  lead  the  party  to  the  knowledge  which  he  seeks, 
if  the  instrument  were  recorded  in  a  wrong  book.  This  rule, 
therefore,  instead  of  being  arbitrary  and  technical,  is  abso- 
lutely essential  to  any  effective  working  of  the  statutory  sys- 
tem." « 

§  686.  Comments. — The  author  is  compelled  to  dis- 
sent from  the  views  expressed  by  Mr.  Pomeroy,  and  from  the 
doctrine  which  prevails  in  several  of  the  States,  that  a  grantee 
is  held  responsible  for  defects  in  the  record  not  caused  by  his 
act  or  through  his  procurance,  but  by  an  officer  over  whom  he 
can  exercise  no  control.  The  grantee,  by  depositing  his  deed 
with  the  recording  officer,  does  all  that  he  can  do.  He  com- 
plies with  every  requirement  of  the  statute.  It  is  universally 
conceded,  when  his  deed  is  correctly  copied  into  the  records, 
that  notice  is  given  from  at  least  the  time  the  conveyance  is 
deposited  with  the  proper  officer.  We  can  see  no  reason  for 
the  restriction  that  notice  shall  be  thus  given  only  on  condi- 
tion that  the  deed  is  subsequently  correctly  copied.  If  the 
grantee,  by  depositing  the  deed  with  the  recorder,  has  given 
the  notice  required  of  him  by  the  statute,  and  has,  by  this  step, 
obtained  all  the  priority  and  acquired  all  the  rights  of  a  pur- 
chaser whose  deed  is  first  recorded,  why  should  his  title  after- 
ward become,  by  the  carelessness,  or,  perhaps,  fraudulent  de- 

12  Pomeroy's  Eq.  Jur.,  §  654.  ^2  Pomeroy's  Eq.  Jur,,  §  653. 


CHAP.   XXII.]  REGISTRATION   OF    DEEDS.  1263 

sign  of  the  recording  officer,  subordinate  to  that  of  another, 
who,  on  equitable  grounds,  aside  from  the  arbitrary  provisions 
of  the  statute,  can  be  entitled  to  no  more  favorable  considera- 
tion than  he?     It  cannot  be  said  that  the  permanent  and  con- 
tinued  existence  of   the   record    is   essential   to  preserve   the 
priority  that  a  purchaser  obtains  by  the  due  record  of  his  in- 
strument.   For  as  we  point  out,  in  a  following  section,  the  sub- 
sequent destruction  of  the  book  in  which  the  deed  is  recorded, 
by  fire,  the  mad  caprice  of  a  mob,  the  mishaps  of  war,  or  the 
hand  of  some  person  who  desires  its  destruction  for  selfish  and 
fraudulent  purposes,  cannot  deprive  the  record  of  the  effect  of 
giving  constructive  notice,  acquired  by  the  original  registra- 
tion.    When  the  record  is  destroyed,  as  a  matter  of  fact,  it 
must  cease  to  give  notice.    Still  it  is  considered,  on  the  sound- 
est logic  and  reason,  that  when  a  person  has  filed  his  deed 
for  record,  he  has  complied  with  the  law,  and  cannot  be  af- 
fected by  the  destruction  afterward  of  the  record.    Why,  then, 
should  he  be  held  responsible  when  the  record  is  not  totally 
destroyed,  but  rendered  imperfect  by  the  act  of  a  public  officer, 
whose  acts  he  cannot  supervise  ?    Again,  the  recording  acts  are 
intended  for  the  benefit  of  subsequent  purchasers  and  encum- 
brancers.    The  first  grantee  requires  no  protection.     By  the 
principles  of  the  common  law,  in  the  absence  of  statutory  regu- 
lation, he  succeeds  by  his  deed  to  all  the  title  of  his  grantor, 
and  unless  the  law  places  upon  him  the  obligation  of  doing 
some  particular  act,  his  deed,  on  common-law  principles,  is 
good  against  everybody.    The  second  purchaser  can  succeed,  so 
far  as  the  question  of  title  alone  is  concerned,  only  to  the  in- 
terest of  his  grantor,  and  if  that  has  been  antecedently  con- 
veyed, he,  by  a  second  conveyance,  can  acquire  nothing.     But 
for  the  protection  of  the  subsequent  purchaser,  the  law  requires 
the  first  grantee  to  give  notice  of  his  deed  by  procuring  its 
registration,  or  to  suffer  the  consequences  of  its  postponement 
to  the  conveyance  of  another,  who  deals  with  the  same  grantor 
in  good  faith  and  without  notice  of  such  prior  deed.    Now,  it  is 


1264  THE  LAW  OF  DEEDS.  [CHAP.  XXII. 

obvious  that  the  registration  laws  are  intended  for  the  benefit 
of  the  subsequent  purchaser,  and  it  seems  to  us  a  reasonable 
rule,  that  if  the  first  grantee  does  all  that  he  has  the  power  to  do 
to  secure  to  subsequent  purchasers  the  benefit  of  this  notice  by 
the  record,  he  should  not  be  held  responsible  because  a  public 
officer  failed  to  do  his  duty.  It  is  true,  that  it  may  be  hard 
to  declare  that  a  purchaser  who  has  parted  with  his  money,  on 
the  assurance  given  by  the  records  that  the  grantor  possessed 
title,  acquires  nothing  because  the  records  are  incorrect,  and  do 
not  show  a  prior  conveyance.  It  may  indeed,  be  said  that 
to  declare  such  a  rule  will  cause  purchasers  to  lose  faith  in  the 
records,  and  will  retard  the  sale  of  property.  But  it  must  be 
remembered  that  it  is  equally  hard  to  say  that  the  first  pur- 
chaser must  lose  the  property  that  he  has  purchased  when  he 
has  complied  strictly  with  every  provision  of  the  statute,  and 
has  not  been  guilty  of  the  slightest  negligence.  One  of  two 
innocent  persons  must,  of  necessity,  be  damaged,  and,  in  our 
judgment,  the  loss  should  fall  upon  the  second  purchaser 
rather  than  upon  the  first.  And  this  loss  is  not  so  severe  as 
at  first  glance  it  may  seem.  He  can  recover  back  the  purchase 
money  for  a  failure  of  consideration,  and  he  has  his  remedy 
against  the  recording  officer  for  his  dereliction  of  duty,  and  in 
several  of  the  States  severe  penalties  are  prescribed  for  the 
execution  of  a  second  deed  of  the  same  property  by  the  same 
grantor  with  intent  to  defraud  a  prior  purchaser.  On  the 
whole,  while  on  this  question  the  authorities  are  divided,  and 
either  view  is  supported  by  a  number  of  well-considered  cases, 
yet  we  think  the  most  reasonable  rule  is  the  one  we  have  stat- 
ed. While  this  is  our  opinion,  still  it  must  be  confessed  that 
neither  view  can  be  said  to  be  supported  by  the  preponderance 
of  authority. 

§  687.  Effect  of  mistake  in  copying  deed  when  consid- 
ered recorded  as  soon  as  filed. — In  those  States  in  which 
the  rule  prevails  that  a  deed  is  considered  in  law  recorded  the 


CHAP.   XXII.]  REGISTRATION  OF  DEEDS.  1265 

moment  it  is  deposited  with  a  proper  officer  for  registration, 
it  follows,  as  a  natural  conclusion,  that  any  error  in  transcrib- 
ing the  deed  cannot  injure  the  grantee.  A  married  woman 
conveyed  land  by  deed,  and  the  deed  was  acknowledged  and 
recorded.  Twelve  years  after  it  was  recorded  it  was  supposed 
to  have  a  defective  acknowledgment,  and  a  copy  of  the  deed 
was  obtained  from  the  recorder's  office,  which  the  grantor 
acknowledged  to  be  her  act  and  deed  for  the  purposes  therein 
mentioned,  she  then  being  a  widow.  The  copy  of  the  deed 
was  returned  properly  acknowledged  and  given  to  the  recorder 
to  be  recorded.  The  recorder  did  not  transcribe  this  copy  and 
the  certificate  of  acknowledgment  in  their  entirety,  but,  acting 
under  the  impression  that  the  original  deed  was  already  re- 
corded, he  deemed  it  unnecessary  to  re-record  that,  but  simply 
added  upon  the  record  the  certificates  annexed  to  the  deed, 
with  a  reference  to  the  original  deed.  The  court  held  that 
if  a  widow  by  reacknowledging  a  void  deed  executed  by  her 
while  married  gives  it  validity,  that  it  is  sufficient  if  she  ac- 
knowledge it  to  be  her  deed,  without  re-signing  it;  and  when 
the  deed  is  left  for  record,  the  grantee's  rights  are  protected 
though  the  officer  records  only  a  portion  of  it.^  A  mistake 
in  transcribing  a  mortgage,  by  which  it  is  made  to  appear  as 
security  for  a  smaller  amount  than  that  named  in  it,  does  not, 
as  against  subsequent  purchasers  and  encumbrancers,  impair 
its  efficiency.*  A  mistake  in  recording  a  mortgage  will  not 
prejudice  the  rights  of  the  mortgagee  as  against  those  of  a  sub- 

•  Riggs   V.    Boylan,   4   Biss.   445.  chaser  must  be  considered  as  hav- 

Said  the  court:     "The  duty  of  the  ing  the  shield   of  the  law   thrown 

recorder  was  to  re-record  the  deed  upon  them,  and  the  deed  did  trans- 

that   was   handed   to  him   in   1839,  fer  the  title." 

with   the  added   certificates,  and   I  *  Mims  v.  Minis,  35  Ala.  23 ;  Du- 

think   that   the    deed    having   been  bose  v.   Young,   10  Ala.  365.     See 

given  to  him  to  be  recorded,  and  Musser  v.  Hyde,  2  Watts  &  S.  314; 

his  duty  being  to  record  it,  and  he  Wood's    Appeal,    82    Pa.    St.    116; 

having    recorded    nothing    but    the  s.     c.     16     Am.     Law     Reg.     255; 

certificates,  with  a  reference  to  the  Brooke's    Appeal,    64    Pa.    St.    127, 

original,  that  the  rights  of  the  pur-  and  cases  cited. 
Deeda,  VoL  H.— 80 


1266  THE  LAW  OF  DEEDS.  [CHAP.  XXIL 

sequent  purchaser.^  An  instrument,  under  this  view,  gives 
notice  of  its  contents  as  soon  as  it  is  filed  for  record,  al- 
though the  officer  may  have  failed  to  record  it,  or  may  have 
recorded  it  in  the  wrong  book.® 

§  688.     Effect  of  mistake  where  opposite  view  prevails. 

— Where  it  is  held  to  be  the  duty  of  a  grantee  to  see  that 
his  deed  is  properly  spread  upon  the  records,  subsequent  pur- 
chasers are  charged  with  such  notice  only  as  they  actually 
have  or  obtain  from  an  inspection  of  the  records.  If,  for  in- 
stance, the  recorder,  by  mistake,  writes  in  the  record  the  name 
of  another  person  as  the  grantor  in  the  deed  in  the  place  of  the 
true  grantor,  the  deed  in  Ohio  is  not  considered  duly  recorded, 
and  will  not  charge  a  subsequent  purchaser  with  notice.'  In 
the  case  cited,  the  recorder's  mistake  in  recording  the  deed  con- 
sisted in  recording  the  name  of  the  grantor  as  Samuel  Granger, 
when  the  name  in  the  deed,  and  the  true  name,  was  Lemuel 
Granger.'    Where  a  mortgage  is  given  as  security  for  the  pay- 

"  Chapman  &  Co.  v.  Johnson,  142  if,  commencing  at  the  source  of  ti- 

Ala.  633,  38  So.  797.  ties,   he  had   traced   it  down   from 

6  Durrence      v.      Northern      Nat.  grantee  to  grantee,  until  he  should 

Bank,    117  Ga.   385,   43   S.   E.   726.  have  found  that  the  title  had  passed 

But  if  instructions  are  given  not  to  to  Lemuel  Granger,  then  all  that  he 

record   the    deed,   the   filing   is   not  would     have    to    do     to    ascertain 

notice:   Turberville  v.   Fowler,   101  whether    the    record    showed    any 

Tenn.  88,  46  S.  W.  577.  conveyance  from  Lemuel  Granger, 

'Jennings  v.  Wood,  20  Ohio,  261.  would  be  to  examine  the  index  to 

•  Jennings  v.  Wood,  supra.  The  ascertain  whether  any  conveyance 
court  on  this  point  said:  "Did  had  been  made  by  Lemuel  Granger; 
Jennings  have  notice  of  his  title  if  none  such  appeared,  then  the  rec- 
placed  on  record?  He  did  not.  The  ord  would  give  notice  of  no  such 
deed  put  on  record  purported  to  conveyance.  It  would  give  him  no- 
be  a  deed  from  a  different  person.  tice,  however,  that  the  title  was  still 
It  is  only  by  the  names  of  the  par-  in  Lemuel  Granger.  The  reason 
ties  conveying  that  a  claim  of  title  that  a  party  is  chargeable  with  con- 
can  be  traced.  Take  the  title  in  structive  notice  is,  that  by  an  ex- 
controversy  as  an  illustration.  If  amination  of  the  record,  he  will 
a  person  had  gone  to  the  record  to  have  actual  notice.  The  deed  ac- 
ascertain  the  situation  of  this  title;  tually  shown  on   record   was  by  a 


CHAP.   XXII.]  REGISTRATION   OF   DEEDS.  1267 

ment  of  three  thousand  dollars,  but  upon  the  record  it  appears 
by  mistake  to  have  been  gi'\^n  for  three  hundred  dollars,  it  is 
notice  to  subsequent  purchasers  only  for  the  sum  expressed 
in  the  registry.^  Where  a  deed  was  executed  for  four-tenths 
of  an  interest  in  land,  but  by  mistake  in  the  registration  it  ap- 
peared on  the  records  to  be  for  a  fourteenth  interest  only, 
it  was  held  that  constructive  notice  was  given  of  the  convey- 
ance of  the  land  to  the  extent  of  one-fourteenth  part  only.* 
It  has  also  been  decided  that  if  a  town  clerk  copies  a  deed 
delivered  to  him  for  registration  in  a  book  in  which  no  deeds 
had  been  recorded  for  upward  of  twelve  years,  and  for  the 
purpose  of  concealment  and  fraud,  does  not  insert  the  names 
of  the  parties  to  the  deed  in  the  index,  such  a  deed  is  not  re- 
corded, and  it  is  held  that  no  notice  is  given  thereby  to  subse- 
quent purchasers  and  attaching  creditors.^ 

§  689.  Continued. — And  if  a  deed  for  the  east  half  of 
a  lot  is  recorded  as  a  deed  of  the  west  half,  a  subsequent  pur- 
chaser of  the  east  half,  who  has  no  notice  that  an  error  has 
been  committed  in  the  registration  of  the  deed,  will  under  this 
view  be  fully  protected.^  So  where  a  deed  conveys  one-half 
of  the  grantor's  individual  right,  title,  and  interest,  into  and 
to  a  certain  piece  of  land,  but,  by  mistake  of  the  recorder,  it 
is  registered  as  a  conveyance  of  one-half  of  the  grantor's  un- 
person who  had  nothing  to  do  with  persons  must  suflfer;  and  whenever 
the  title,  and  was,  to  all  intents  and  this  is  the  case,  the  rule  is,  that  the 
purposes,  a  different  conveyance  misfortune  must  lie  where  it  has 
from  the  one  by  which  Jennings  fallen,  it  must  rest  on  the  person  in 
claims.  But  it  is  said  that  Jen-  whose  business  and  under  whose 
nings  had  a  good  deed,  and  that  control  it  happened." 
he  had  done  all  that  it  was  neces-  ^  Frost  v.  Beekman,  1  Johns.  Ch. 

sary   for  him  to  do;  that  the  mis-      288. 

take  was  that  of  the  recorder,  and  *  Brydon    v.    Campbell,    40    Md. 

that  he   should   not   suffer    for  the      331. 

default  of  the  officer.    It  may  be  a  ^  Sawyer   v.    Adams,   8   Vt,    172, 

hardship  on  Jennings,  it  no  doubt      30  Am.  Dec.  459. 


u; 


but  here  one  of  two   innocent         *  Sanger  v.  Craigue,  10  Vt.  555. 


1268  THE  LAW  OF  DEEDS.         [CHAP.  XXII., 

divided  right,  subsequent  bona  Me  purchasers  are  charged 
with  notice  of  the  conveyance  of  only  the  estate  shown  by 
the  records.*  Under  the  Wisconsin  statute,  a  deed  must  be 
attested  by  two  witnesses  to  entitle  it  to  be  recorded.  It  is 
held  in  that  State  that  if  an  error  is  made  in  recording  a  con- 
veyance at  length,  by  omitting  to  copy  the  attestation,  subse- 
quent purchasers  and  mortgagees  are  not  charged  with  con- 
structive notice.^  Under  this  view,  where  a  mortgage  cover- 
ing the  northwest  quarter  of  a  tract  of  land  was  made  to  ap- 
pear in  the  record  as  a  mortgage  of  the  northeast  quarter,  it 
was  held  that  a  grantee  in  a  subsequent  deed  of  the  northwest 
quarter  was  not  affected  by  the  mortgage.^  No  one  is  obliged 
to  take  notice  of  an  instrument  improperly  recorded.'  But 
if  a  deed  has  been  properly  attested  by  a  witness  and  a  notary 
public,  the  fact  that  it  appears  of  record  as  having  been  exe- 
cuted in  the  presence  of  such  witness  and  of  a  notary  public 
having  other  initials  to  his  name  does  not  cause  the  record  of 
the  deed  to  lose  its  character  as  constructive  notite.'  Where 
the  pledgee  of  an  assignment  of  a  mortgage,  taken  as  col- 
lateral security,  intending  to  discharge  the  assignment  only, 
wrote  opposite  the  mortgage  records,  the  words :  "In  consid- 
eration of  the  full  payment  of  all  moneys  secured  to  be  paid, 
I  hereby  discharge  the  same  of  record,"  a  subsequent  pur- 
chaser relying  upon  an  abstract  showing  a  discharge  of  the 

*  Miller  v.  Bradford,  12  Iowa,  14.  cause  his  abstract  did  not  show  it." 

5  Pringle  v.   Dunn,   37   Wis.   449,  The  court  held  that  under  such  cir- 

19  Am.  Rep.  772.     It  appeared   in  cumstances,  he  must  be  deemed  to 

this  case,  however,  in  a  suit  upon  have  had  actual  notice  of  the  mort- 

a  mortgage  defectively  recorded  in  gage. 

this    respect,    that    one    of   the    de-  ^  White  v.  McGarry,  2  Flipp.   C. 

fendants  at  the  time  he  purchased  C.  572. 

a   part  of   the  morgtaged  premises  '  Etzler  v.  Evans,  61   Ind.  56. 

"had    heard    that   there   was   a    de-  ^  Roberson   v.   Downing  Co.,   120 

fective     railroad     mortgage     upon  Ga.  833,  48  S.  E.  829,  102  Am.  St. 

them,  but  did  not  look  for  it,  be-  Rep.   128. 


CHAP.   XXII.]  REGISTRATION  OF  DEEDS. 


1269 


mortgage  is  entitled  to  protection  against  a  foreclosure  of  the 
mortgage.' 

§  690.  Destruction  of  record. — After  a  deed  has  been 
once  properly  recorded,  the  destruction  of  the  book  in  which 
it  is  recorded  does  not  affect  the  constructive  notice  afforded 
by  the  original  record.^     When  a  party  has  placed  his  deed 


9  Lowry  v.  Bennett,  119  Mich. 
301,  n  N.  W.  935.  See,  also,  Day 
V.  Brenton,  102  Iowa,  482,  71  N.  W. 
538,  63  Am.  St.  Rep.  460;  Florence 
V.  Morien,  98  Va.  26,  34  S.  E.  890 ; 
Wilkins  v.  McCorkle,  112  Tenn. 
688,  80  S.  W.  834;  Dean  v.  Gib- 
son, 34  Tex.  Civ.  App.  508,  79  S. 
W.  363 ;  Terrell  v.  Andrew  Co.,  44 
Mo.  309;  Nystrom  v.  Quinby,  68 
Minn.  4,  70,  N.  W.  111. 

1  Steele  v.  Boone,  75  111.  457; 
Armentrout  v.  Gibbons,  30  Gratt. 
632;  Gammon  v.  Hodges,  73  111. 
140;  Heaton  v.  Pratlier,  84  111.  330; 
Curyea  v.  Berry,  84  111.  600;  Myers 
V.  Buchanan,  46  Miss.  397.  And 
see  Deming  v.  Miles,  35  Neb.  739, 
37  Am.  St.  Rep.  464;  Alvis  v.  Mor- 
rison, 63  111.  181,  14  Am.  Rep.  117; 
Shannon  v.  Hall,  72  III.  354,  22  Am. 
Rep.  146;  Taylor  v.  Franklin  Sav. 
Bank,  50  Fed.  Rep.  289;  Paxson  v. 
Brown,  61  Fed.  Rep.  874;  Hyatt  v. 
Cochran,  69  Ind.  436;  Addis  v.  Gra- 
ham, 88  Mo.  197;  Franklin  Sav. 
Bank  v.  Taylor,  131  111.  376 ;  Thom- 
as V.  Hanson,  59  Minn.  274,  61  N. 
W.  Rep.  135.  The  fact  that  the 
deed  has  been  recorded  may  be 
shown  by  the  certificate  of  the  re- 
corder, or  by  the  index-book  or 
other  secondary  evidence :  Smith  v. 
Lindsay,  89  Mo.  76,  1  S.  W.  Rep. 
88;  Alvis  v.  Morrison,  63  111.  181, 
14  Am.  Rep.  117;  Cowles  v.  Har- 


din, 91  N.  C.  231;  Paxson  v. 
Brown,  61  Fed.  Rep.  874;  Steb- 
bins  V.  Duncan,  108  U.  S.  32.  But 
see  Weber  v.  Moss,  3  Tex.  Civ. 
App.  13,  21  S.  W.  Rep.  609,  where 
it  is  held  that  if  the  record  of  a 
deed  is  partially  destroyed  so  as 
not  to  show  that  the  deed  was 
properly  acknowledged  for  regis- 
tration, such  record  does  not  charge 
subsequent  purchasers  with  con- 
structive notice  of  the  deed.  In 
Myers  v.  Buchanan,  46  Miss.  397, 
the  court  said :  "We  have,  how- 
ever, no  hesitation  in  affirming  the 
general  proposition  propounded  by 
the  complainant,  and  hold  the  deed 
of  trust  in  favor  of  Myers,  in  1861, 
constructive  notice  to  all  the  world, 
notwithstanding  the  disordered 
condition  of  the  records  in  1865. 
It  would  be  monstrous  to  declare 
a  lien,  acquired  by  a  duly  recorded 
mortgage  lost  by  subsequent  par- 
tial or  total  destruction  of  the  rec- 
ords. Such  a  rule  would  subject 
every  lien  in  the  State  to  the  ha- 
zards of  accidental  fire  the  caprice 
of  incendiaries  and  the  casualties 
of  war."  To  the  same  effect  see 
Ashburn  v.  Spivey,  112  Ga.  474,  Zl 
S.  E.  703;  Tucker  v.  Shaw,  158 
111.  326,  41  N.  E.  914;  Thomas  v. 
Hanson,  59  Minn.  274,  61  N.  W. 
135;  Weir  v.  Cordz-Fisher  Lumber 
Co.,   186   Mo.  388,  85   S.   W.  341; 


1270  THE  LAW  OF  DEEDS.  [CHAP.  XXIT. 

Upon  record,  he  has  comphed  with  all  the  requirements  of  the 
law.  After  the  record  has  been  destroyed  by  fire,  he  is  not 
compelled  to  record  his  deed  a  second  time,  or  to  do  any  other 
act  to  notify  subsequent  purchasers,  in  order  to  be  protected 
in  his  rights  under  his  deed.^  "It  is  true,"  said  Mr.  Justice 
Craig,  "a  party  who  owns  real  estate  in  Cook  county  may,  if 
he  thinks  proper,  in  case  the  record  of  his  title  has  been  de- 
stroyed, again  record  his  title  papers ;  yet  he  is  under  no  legal 
obligation  to  incur  that  expense.  It  is  no  doubt  true  that  a 
large  number  of  deeds  and  other  instruments  of  writing,  re- 
lating to  land  in  Cook  county,  which  were  recorded  previous 
to  the  fire,  have  been  lost  or  destroyed,  and  could  not  be  pro- 
duced. To  hold,  therefore,  that  the  owner  of  property  was 
required  to  again  record  the  title  papers,  or  be  liable  at  any 
moment  to  lose  the  title,  would  be  establishing  a  precedent  of 
the  most  dangerous  character.  The  result  of  the  doctrine  con- 
tended for  by  appellant  would  compel,  in  numerous  instances, 
parties  who  owned  real  estate  in  Cook  county  to  take  immedi- 
ate possession,  or  otherwise  their  titles  would  be  at  the  mercy 
of    subsequent    purchasers." '     Furthermore,    the    weight    of 

Manwaring    &    Mo.    etc.,    Co.,    200  Bringham,  84  Tex.   538,    19   S.  W. 

Mo.   718,  98   S.   W.  762;  Williams  Rep.  703;  Salmon  v.  Huff,  80  Tex. 

V.  Butterfield.  214  Mo.  412,   114  S.  133,   15   S.  W.  Rep.  257;   Greer  v. 

W.   13;   Cooper  v.  Flesner,   (Okl.)  Willis,  (Tex.)  81  S.  W.  1185.    But 

23    L.R.A.(N.S.)     1180,     103    Pac.  see    in   this    connection:    Curry    v. 

1016.  Lehman,    55    Fla.    847,   47    So.    18. 

2  Gammon  v.  Hodges,  12)  III.  140.  ^  See  Gammon  v.  Hodges,  supra. 

See  Hyatt  v.  Cochran,  69  Ind.  436.  See,  also,  Shannon  v.  Hall,  72  111. 

Under  the  statute  of  Texas,  where  354,    22    Am.    Rep.    146;    Alvis    v. 

county  records  are  destroyed,  deeds  Morrison,  63  111.  181,  14  Am.  Rep. 

which    are   preserved    must   be    re-  117.      In    Texas    it    was    held    that 

corded  within  four  years,  and  un-  where   one  had   recorded  his  deed, 

less  so  re-recorded,  the  first  record  and  the  records  were  destroyed,  his 

does  not  constitute  notice  as  against  failure   to    take    steps    to    have    his 

a    bona    fide   purchaser:    Magee    v.  conveyance   again    recorded,   is    not 

Merriman,  85   Tex.    105,    19   S.  W.  negligence,  as  against  a  subsequent 

1002;    O'Neal    v.    Pettus,    79    Tex.  purchaser  from  the  original  vendor, 

255 ;  Weber  v.   Mass,  3  Tex.   App.  who,  not  having  paid  the  price  in 

13,  21   S.  W.   Rep.  609;   Barcus  v.  full,  could  not  claim  the  equity  of 


CHAP.   XXII.]  REGISTRATION   OF  DEEDS.  1271 

authority  holds  that  the  mere  failure  of  a  person  to  avail  him- 
self of  statutory  provisions  for  the  restoration  of  records,  does 
not,  in  the  absence  of  statutory  provisions,  prevent  him  from 
relying  on  the  original  record.*  Its  character  as  a  record  is 
not  taken  away  although  it  is  not  re-recorded  in  compliance 
with  the  terms  of  a  permissive  enabling  act.^  When  once  re- 
corded, constructive  notice  is  given,  although  the  record  may 
fail  to  give  the  information  desired.* 

§  691.  Proof  of  deed  where  record  destroyed. — Where 
the  record  has  been  destroyed,  and  it  becomes  material  to 
prove  the  execution  of  the  deed,  it  may  be  proved  in  most  in- 
stances, by  the  production  of  the  deed  itself,  and  hence  little 
difficulty  will  generally  be  experienced.  But  when  the  record 
has  been  destroyed  and  the  deed  lost,  its  execution  must  be 
proven  like  that  of  any  other  lost  paper,  by  secondary  evidence. 
What  evidence  will  suffice  to  prove  this  fact  is  a  matter  to  be 
determined  by  the  court  or  jury,  and  of  course  it  is  impossible 
to  lay  down  a  universal  rule  as  to  the  amount  of  evidence 
that  will  be  required  to  establish  this  fact.  It  has  been  de- 
cided, however,  where  a  deed  and  its  record  had  both  been 
destroyed  by  fire,  that  its  execution  is  sufficiently  proven  by 
the  testimony  of  a  clerk  of  an  abstract  firm,  that  the  deed  had 
been  filed  for  record,  and  that  the  day  after  its  execution  he 
had  made  a  minute  of  it,  which  he  produced,  and  the  testimony 
of  a  partner  of  the  person  claiming  to  be  grantee  that  the  deed 
was,  in  his  opinion,  executed  in  his  office  and  was  taken  away 
for  the  purpose  of  acknowledgment.    Such  testimony  will  pre- 

a    bona   Me   purchaser :    Evans    v.  Holton   v.   Alley,    15   Ky.   L.   Rep. 

Templeton,  69  Tex.  375,  5  Am.  St.  529,  24  S.   W.   113. 

Rep.  71.  5  Hyatt  v.  Cochran,  69  Ind.  436. 

^Ashburn  v.  Spivey,  112  Ga.  474,  6  Heim  v.  Ellis,  49  Mich.  241,  13 

37  S.  E.  703;  Shannon  v.  Hall,  72  N.  W.  582.     See,  also,  Mattfield  v. 

III.    354,   22    Am.    Rep.    146;    Gam-  Huntington,  17  Tex.  Civ.  App.  716, 

mon  V.  Hodges,  73  111.   140,  Hyatt  43   S.  W.   53;   Greer  v.  Willis,  81 

V.  Cochran,  69  Ind.  436;  Myers  v.  S.  W.  1185. 
Buchanan,  46   Miss.  397.     But  see 


1272  THE  LAW  OF  DEEDS.  [CHAP.  XXIL 

vail  against  the  positive  denials  of  the  grantors  that  they  at 
any  time  had  executed  such  a  deedJ 

§  692.  Index  as  part  of  the  record — Comments. — The 
index  is  a  very  important  aid  to  searchers  in  enabling  them 
to  ascertain  whether  a  particular  individual  has  conveyed  his 
title.  Without  the  assistance  furnished  by  the  index,  it  would 
be  practically  impossible  for  an  ordinary  person,  with  no  pecu- 
liar means  of  information,  to  learn  from  the  inspection  of  the 
records  the  condition  of  a  title.  The  index  is  generally  re- 
quired by  the  registry  laws  to  be  kept  as  one  of  the  official 
records.  In  connection  with  the  question  we  have  just  dis- 
cussed, the  inquiry  arises,  is  an  index  placed  on  the  same  foot- 
ing as  the  record-book  itself,  and  what  consequence,  if  any, 
results  from  a  mistake  in  the  index  by  which  an  innocent  pur- 
chaser may  be  misled?  On  this  question,  we  shall  encounter, 
to  some  extent,  the  same  conflict  in  the  decisions,  that  we 
found  existed  on  the  question  as  to  the  person  who  should 
suffer  for  an  error  in  the  transcription  of  the  original  deed 
into  the  records. 

§  693.  Viev^  that  deed  improperly  indexed  does  not 
give  constructive  notice. — In  Pennsylvania,  in  one  case, 
the  court  held  that  a  conveyance  not  correctly  indexed  was 
not  constructive  notice.*  But  as  the  case  was  decided  on  the 
ground  that  the  subsequent  purchaser  had  actual  notice  of  the 
prior  conveyance,  it  was  unnecessary  to  pass  upon  this  ques- 
tion. Mr.  Chief  Justice  Woodward,  however,  remarked: 
"But  it  was  not  duly  indexed,  and  not  therefore,  constructive 
notice  to  third  parties.  As  a  guide  to  inquirers,  the  index  is 
an  indispensable  part  of  the  recording,  and  without  it,  the 
record  affects  no  party  with  notice."  *  In  a  later  case  in  the 
same  State  this  question  incidentally  arose,  but  the  court  did 

■^  Heacock  v.  Lubuke,  107  111.  396.         »  Speer  v.  Evans,  47  Pa.  St.  141. 
*  Speer  v.  Evans,  47  Pa.  St  141, 


CHAP.   XXII.] 


REGISTRATION  OF  DEEDS. 


1273 


not  decide  it.  The  deed  had  been  properly  indexed  in  the 
separate  index,  but  not  in  a  general  index  which  the  officer 
kept  for  convenience  of  searchers.  The  law  did  not  require 
the  recorder  to  keep  a  general  index.  The  court  held  that  as 
the  deed  was  indexed  in  the  particular  index  required  by  law 
to  be  kept,  it  was  sufficient  to  give  notice  but  observed : 
"Whether  his  title  can  be  taken  from  him  by  the  omission  to 
enter  his  recorded  and  certified  deed  in  the  particular  index, 
may  admit  of  question,  but  we  give  no  opinion  on  this  point."  ^ 


iSchell  V.  Stein,  76  Pa.  St.  398, 
18  Am.  Rep.  416.  Mr.  Chief  Justice 
Agnew  delivered  the  opinion  of  the 
court,  and  said :  "The  question 
presented  by  the  record  in  this  case 
is,  whether  a  deed  regularly  ac- 
knowledged or  proved,  and  record- 
ed in  the  proper  book,  and  indexed 
in  the  separate  index  appropriated 
to  the  book,  but  not  in  the  general 
index  of  all  the  deed-books,  is  not 
defectively  recorded.  If  it  be,  the 
conceded  principle  is  that  a  deed 
defectively  registered  is  a  nullity 
as  to  subsequent  purchasers  or 
mortgagees.  There  is  no  law  which 
requires  the  recorder  to  keep  a  gen- 
eral index  to  all  the  deed  or  mort- 
gage-book in  his  office.  That  it  is 
a  great  convenience,  and,  in  the 
populous  counties  of  the  State,  has 
become  a  necessity,  is  evident,  but 
it  is  the  province  of  the  legislature, 
and  not  of  this  court,  to  make  this 
convenience  or  the  necessity  the 
subject  of  law.  The  registration 
of  deeds  is  purely  a  system  of  legal 
institution,  and  not  of  common 
right  or  abstract  Justice.  At  com- 
mon law,  in  England,  there  was  no 
system  of  registration,  and  the  rule 
between  claimants  of  the  same  title 
was  found  in  the  maxim,  prior  in 


tempore  potior  est  in  jure.  In  this 
State  the  system  has  been  one  of 
growth.  The  original  act  of  1715 
did  not  even  require  the  record  to 
be  a  book.  The  recorder  was  to 
provide  parchment  or  good  large 
books,  and  his  certificate  was  to 
give  the  number  of  the  book  or 
roll.  No  provision  was  made  for 
indexing  until  the  act  of  1827, 
which  was  applicable  to  other  of- 
fices as  well  as  that  of  the  recorder. 
But  so  early  as  1775  the  law  re- 
quired a  bond  of  the  recorder  with 
sufficient  sureties,  which  was  to  be 
held  for  the  use  of  'parties  that 
shall  be  indemnified  or  aggrieved' 
in  the  same  manner  as  sheriff's 
bonds.  The  duty  of  searches  is 
that  of  the  officer,  not  of  parties, 
and  he  must  see  to  it  that  no  mis- 
takes are  made  in  searching.  The 
act  of  1827  imposed  no  duty  as  to 
indexes,  except  to  have  one  for 
each  and  every  book.  If  greater 
convenience  induces  the  recorder  to 
keep  a  general  index,  to  save  the 
handling  of  different  books,  and  he 
omits  to  index  a  deed  in  it,  and 
thereby  overlooks  a  deed  regularly 
recorded  and  duly  indexed  in  the 
proper  book,  his  certificate  makes 
him     liable     to     the     party     who 


1274 


THE  LAW  OF  DEEDS. 


[chap.  XXII. 


In  later  cases  arising  in  Pennsylvania,  however,  the  doctrine 
has  been  unequivocably  announced  that  the  index  is  not  es- 
sential to  the  registration  of  a  deed  and  the  earlier  cases  so 
far  as  they  state  a  different  rule,  are  overruled.^  The  view 
that  a  deed  incorrectly  indexed  does  not  give  notice  is  to  some 
extent  sanctioned  in  some  other  States.' 

§  694.     Decisions  in  Iowa  on  this  question. — In  Iowa 
several  decisions  have  been  rendered  on  this  question,  based 


is  injured  by  it.  But  surely  the 
one  who  has  had  his  deed  duly  ac- 
knowledged or  proved,  recorded  in 
the  proper  book,  and  certified  un- 
der the  hand  and  seal  of  the  office 
of  the  recorder  in  due  form,  has 
done  all  the  law  requires  of  him. 
On  what  principle  of  law  or  sound 
reason  shall  he  be  required  to  su- 
pervise the  officer's  gratuitous  in- 
dexing of  deeds  in  an  index  not 
required  by  law?  He  is  not  to  be 
presumed  to  be  familiar,  and,  as  a 
fact,  nine  out  of  ten  persons  are 
not  familiar,  with  the  system  of 
the  office.  All  the  citizens  can  be 
bound  to  know  is  the  law,  and  he 
is  warned  by  no  law  that  there  must 
be  kept  a  general  index." 

2  Stockwell  V.  McFIenry,  107  Pa. 
St.  237,  52  Am.  Rep.  475;  Pyles  v. 
Brown,  189  Pa.  St.  164,  42  Atl. 
11,  69  Am.  St.  Rep.  794;  Wood's 
Appeal,  82  Pa.  St.  116.  The  re- 
quirement of  a  statute  as  to  the 
manner  in  which  indexes  shall  be 
made  must  be  observed :  Smith  v. 
Lamping,  27  Wash.  624,  68  Pac. 
195;  Dirks  v.  Collins,  37  Wash. 
620,  79  Pac.  1112.  But  indexing 
is  not  essential  unless  the  statute 
makes  it  so:  Maxwell  v.  Stuart, 
99  Tenn.  409,  42  S.  W.  34;  Chat- 


ham V.  Bradford,  50  Ga.  327,  15 
Am.  Rep.  692;  Armstrong  v.  Aus- 
tin, 45  S.  C.  69,  29  L.R.A.  112,  22 
S.  E.  763;  Bishop  v.  Schneider, 
46   Mo.   472,   2  Am.   Rep.   532. 

3  See  Barney  v.  McCarty,  15 
Iowa,  510,  83  Am.  Dec.  427;  Whal- 
ley  v.  Small,  25  Iowa,  188.  See,  also, 
Handley  v.  Howe,  22  Me.  560 ;  Mc- 
Laren v.  Thompson,  40  Me.  284. 
Where  the  statute  requires  the  re- 
cording officer  to  keep  indexes  in 
which  the  names  of  grantors  must 
be  placed  alphabetically,  a  tax  deed, 
until  it  is  indexed,  is  held  not  to  be 
recorded  nor  admissible  in  evi- 
dence: Hilcs  V.  Atlee,  80  Wis.  219, 
27  Am.  St.  Rep.  32;  Howe  v.  Thay- 
er, 49  Iowa,  154.  In  Wisconsin, 
the  omission  to  enter  a  description 
of  the  land  under  the  appropriate 
head  in  the  general  index  is  cured 
by  transcribing  at  length  the  deed 
containing  such  description  in  the 
proper  record:  St.  Croix  etc.  Co.. v. 
Ritchie,  IZ  Wis.  409.  See,  also, 
Oconto  Co.  V.  Gerrard,  46  Wis.  317. 
A  purchaser  is  not  bound  to  look 
beyond  the  proper  index  for  in- 
formation as  to  conveyances :  Koch 
V.  West,  118  la.  46S,  92  N.  W.  663, 
96  Am.    St.    Rtp.   394. 


CHAP.   XXII.]  REGISTRATION   OF  DEEDS.  1275 

upon  the  statutes  In  force  in  that  State.  In  one  case  *  the 
court  said  that  an  analysis  of  the  statute  showed  that  the  re- 
corder was  required  to  perform  the  following  acts  with  re- 
spect to  all  instruments  required  to  be  recorded:  "1.  File  all 
deeds,  etc.,  presented  to  him  for  record,  and  note  on  the  back 
of  the  same  the  hour  and  day  they  were  presented  for  record." 
"2.  Keep  a  fair  book  on  which  he  shall  immediately  make  an 
entry  of  every  deed,  giving  date,  parties,  description  of  land, 
dating  it  on  the  day  when  it  was  filed  in  his  office."  "3. 
Record  all  instruments  in  regular  succession."  "4.  Make  and 
keep  a  complete  alphabetical  index  to  each  record-book,  show- 
ing page  on  which  each  instrument  is  recorded,  with  the  names 
of  the  parties  thereto."  The  opinion  of  the  court  was  de- 
livered by  Mr.  Justice  Dillon,  who  said  that  reading  this  stat- 
ute with  the  others  on  the  same  subject,  the  court  was  of  the 
opinion  that  in  order  to  constitue  a  compliance  with  their  re- 
quirements, it  was  necessary  that  each  of  the  following  steps 
should  be  substantially  observed:  "1.  The  instrument  must 
be  deposited  or  filed  with  the  recorder  for  record.  He  there- 
upon notes  the  fact,  and  'the  hour  and  day,'  on  the  back  there- 
of, and  the  day  on  'the  fair-book,'  as  it  is  styled,  and  retains 
the  instrument  in  his  ofifice.  The  instrument  itself  thus  re- 
maining on  file  in  his  office  with  the  indorsement  upon  it,  arid 
the  entries  in  the  'fair-book,'  which  are  required  to  be  imme- 
diately made,  constitute  the  notice  until  the  instrument  is 
actually  extended  upon  the  records.  2.  The  next  step  in  the 
process  is  the  recording,  that  is,  the  copying  of  the  instru- 
ment at  large  into  the  'record-book,'  and  noting  in  it  the  pre- 
cise time  when  it  was  filed  for  record.  The  object  of  this  not- 
ing is  that  the  record  may  show  on  its  face  when  the  notice 
commences.  3.  The  third  and  final  step  is  the  indexing  of 
the  instrument  so  recorded.  The  statute  prescribes  the  re- 
quisites of  the  index.  It  shall  be  a  complete  alphabetical  index 
to  each  record-book,  and  shall  give  the  names  of  the  parties,. 

*  Barney    v.    McCarty,    IS    Iowa,      510,  83  Am.  Dec.  427. 


1276  THE  LAW  OF  DEEDS.  [CHAP.  XXII. 

and  show  the  page  where  each  instrument  is  recorded.  The 
paging  cannot,  of  course,  be  given  until  the  deed  is  actually 
transcribed  into  the  record-book,  and  up  to  this  time  it  re- 
mains on  file.  When  recorded  and  indexed  the  deed  may  be 
withdrawn,  and  the  record  takes  its  place,  and  constructively 
imparts  notice  to  the  world  of  its  existence  and  contents." 
The  justice  then  remarked :  "Keeping  in  view  alike  the  well- 
known  objects  and  the  enlightened  policy  on  which  the  regis- 
try acts  are  based,  as  well  as  the  language  and  requirements 
of  the  several  statutes  above  cited,  the  court  are  of  the  opinion 
that  all  three  of  these  steps  are  essential,  integral  parts  of  a 
complete,  valid  registration."  He  then  examined  several  cases 
cited  by  the  counsel  for  the  respective  parties,  and  concluded 
the  opinion  by  observing :  "To  hold  that  an  index  is  not  es- 
sentially part  of  a  valid  and  complete  registration  in  this  State, 
would  overlook  the  uniform  practice  of  relying  wholly  upon 
it  to  find  the  names  of  the  various  owners  in  tracing  titles, 
and  would  also  ignore  the  fundamental  design  of  the  record- 
ing acts,  which  is  to  give  certainty  and  security  to  titles,  by 
requiring  all  deeds  and  liens  to  be  made  matters  of  public 
record,  and  thus  discoverable  by  all  persons  who  are  interested 
in  ascertaining  their  existence,  and  who  will  examine  the 
records  in  the  mode  which  the  law  has  pointed  out."  It  was 
accordingly  held  that  the  omission  to  index  a  conveyance  de- 
prived the  record  of  imparting  constructive  notice  of  its  con- 
tents.^ But  where  a  conveyance  was  filed  in  the  proper  office, 
and  entered  of  record  on  page  "546"  of  the  proper  book, 
but  the  index  entry,  while  showing  the  names  of  the  grantor 
and  grantee,  and  substantially  the  "nature  of  the  instrument," 
and  the  book  in  which  the  record  was  made,  stated  the  page 
of  the  record  as  "596,"  it  was  held  that  the  index  was  opera- 
tive as  constructive  notice  of  the  acts  which  would  be  disclosed 
by  an  examination  of  the  record.^     In  another  case  a  deed  had 

6  Barney    v.    McCarty,    15    Iowa,  ^  Barney  v.  Little,   15  Iowa,  527. 

510,  83  Am.   Dec.  427.  The  court  cited  with  approval  the 


CHAP.   XXII.]  REGISTRATION   OF  DEEDS.  1277 

been  filed  for  record,  and  had  remained  in  the  recorder's  of- 
fice from  the  time  it  was  filed,  but  it  had  never  been  actually 
recorded  or  indexed.  The  court  held  that  the  mere  filing  was 
not  sufficient  to  impart  constructive  notice.'  The  court  de- 
cided this  case  on  the  authority  of  Barney  v.  McCarthy  and 
said :  "The  only  point  of  difference  between  the  facts  in  that 
case  and  the  one  at  bar  is,  that  while  the  instrument  there  was 
copied  upon  the  record,  and  taken  from  the  recorder's  ofifice, 
here  it  was  not  copied,  and  remained  in  the  office.  The  doc- 
trine of  that  case  is  clearly  applicable  to  this.  If  the  record- 
ing of  an  instrument  duly  filed  is  insufficient  without  an  in- 
dex thereof,  certainly  filing  without  either  the  index  or  the 
recording  would,  under  that  decision,  fail  to  impart  notice."  * 
A  purchaser  of  a  piece  of  land  executed  a  mortgage  back  as 
security  for  the  payment  of  the  purchase  money.  But  by  mis- 
take the  land  that  was  described  was  an  entirely  different  tract. 
It  was  held  that  a  subsequent  purchaser  was  not  charged  with 
constructive  notice  of  the  recitals  in  the  deed,  which  might  be 
sufficient  to  place  him  upon  inquiry,  when  the  index  required 
by  law  to  be  kept  did  not  contain  such  recitals.'  But  a  de- 
scription in  the  proper  column  in  the  index  as  "certain  lots  of 
land,"  the  record  being  complete  in  other  respects,  was  held 

former  case  of  Barney  v.  McCarty,  have  made  him  cognizant  of.    Hav- 

15  Iowa,  510,  83  Am.  Dec.  427,  and  ing  thus  settled  the  rule  which  is 

said:     "It  is  a  purchaser's  duty  to  to    be    applied,    the    court    cannot 

examine    the    records.      The    law  avoid  the  conclusion  that  if  the  ap- 

places   this  means   at   his   disposal.  pellants,  in  the  case  under  consid- 

It  requires  all  matters  affecting  ti-  eration,  had  made  an  ordinary,  dil- 

tles   to   appear   of    record.      If   he  igent,   skillful,   and  careful   exami- 

omits  to  examine,  he  is  to  impute  nation    of    the    records,   the    mort- 

the  loss,  if  any,  to  his  own  indo-  gage  in  question  would  have  been 

'  lence  or   folly:    Astor  v.   Wells,   4  discovered  to  them." 

Wheat.  466.     Assuming  the  instru-  "^  Whalley  v.  Small,  25  Iowa,  184. 

ment  to  be  one  which  may  proper-  See,   also,   Oconto   Co.   v.   Jerrard, 

ly  be   registered,   the   law  charges  46  Wis.  317. 

him  with  a  knowledge  of  all  facts  8  whalley  v.  Small,  25  Iowa,  184. 

which    an    ordinarily    careful    ex-  •  Scoles  v.  Wilsey,  11  Iowa,  261. 
amination    of    the    records    would 


1278  THE  LAW  OF  DEEDS.       '  [CHAP.  XXH. 

sufficient  to  convey  constructive  notice  to  subsequent  pur- 
chasers.^ And  it  was  also  held  that  where  the  words  "see 
record"  were  written  in  the  column  in  which  the  description 
of  the  lands  should  have  been  placed,  a  subsequent  purchaser 
was  charged  with  notice.^ 

§  695.  View  that  mistake  in  index  has  no  effect  upon 
record. — In  Missouri,  although  the  rule  prevails  that  a 
deed  does  not  impart  constructive  notice  if  a  mistake  has  been 
made  in  the  record,'  yet  it  is  established  that  this  result  does 
not  follow  from  a  mistake  or  omission  in  the  index.*  Wag- 
ner, J.,  referring  to  the  registry  act  of  that  State,  said:  "The 
general  nature,  object,  and  scope  of  the  whole  act,  taken  to- 
gether, is  to  point  out  the  duty  of  the  clerk,  not  only  in  the 
making  of  a  proper  record  of  conveyances,  but  also  in  fur- 
nishing facilities  for  their  discovery,  examination,  and  use, 
by  all  persons  interested  in  them;  and  to  secure  the  due  per- 
formance of  these  duties  the  clerk  is  made  liable  to  the  party 
injured  for  the  neglect  of  them.  The  index,  which  it  is  the 
duty  of  the  clerk  to  make  out  and  preserve  in  a  book  for  that 
purpose,  seems  to  be  one  of  the  facilities  to  be  used  in  making 
search  for  the  record,  but  not  a  part  of  the  record  itself.     It 

1  Bostwick  V.  Powers,  12  Iowa,  2  Am.  Rep.  533 ;  Land  &  River 
456.  Imp.   Co.  V.  Bardou,  45  Fed.  Rep. 

2  White  V.  Hampton,  13  Iowa,  706.  Filing  a  deed,  it  is  held  in 
259.  For  other  cases  in  Iowa  upon  North  Carolina,  constitutes  con- 
this  question,  see  Calvin  v.  Bow-  structive  notice,  and  the  failure  of 
man,  10  Iowa,  529;  Noyes  v.  Horr,  the  officer  to  index  the  deed  as  rc- 
13  Iowa,  570;  Barney  v.  Little,  15  quired  by  statute  does  not  impair 
Iowa,  527;  Gwynn  v.  Turner,  18  its  efficacy:  Davis  v.  Whitaker,  114 
Iowa,  1 ;  Howe  v.  Thayer,  49  Iowa,  N.  C.  279.  41  Am.  St.  Rep.  793. 
154;  Hiles  v.  Atlee,  80  Wis.  219,  Where  a  deed  is  properly  filed  for 
27  Am.  St.  Rep.  82,  49  N.  W.  Rep.  record,  the  failure  to  record  it 
816.  does  not  affect  the  person's   rights 

3  Terrell  v.  Andrew  County,  44  if  the  deed  was  properly  indexed : 
Mo.  309.  Sawyer  v.   Vt.   etc.   Co.,  41   Wask 

4  Bishop  V.  Schneider,  46  Mo.  472,  524,  84  Pac.  8. 


CHAP.   XXII.]  REGISTRATION  OF  DEEDS.  1279 

is  his  duty  to  have  an  index,  and  to  enter  upon  it  a  proper 
reference  to  every  record  of  a  conveyance,  and  for  any  neglect 
to  do  so,  he  is  liable  to  the  party  aggrieved  for  double  the 
amount  of  damages  sustained.     But  it  is  not  certain  that  any 
one  will  be  injured  by  the  neglect,  and  therefore  the  record 
itself  should  not  be  held  void.     The  purchaser  may  take  his 
deed,  relying  solely  upon  the  representations  or  covenants  of 
his  grantor,  without  desiring  to  examine  the  records.     An  in- 
dex or  the  want  of  it  will  obviously  be  of  no  importance  to 
him.     So,  if  without  making  any  search,  or  causing  any  to  be 
made,  a  person  should. rely  alone  upon  the  representations  of 
the  clerk,  that  the  title  was  clear,  and  these  representations 
should  be  knowingly  false,  could  it  with  reasonable  propriety 
and  fairness  be  said  that  he  was  injured  by  want  of  an  index  ? 
Yet  in  these  cases,  if  the  argument  advanced  be  correct,  though 
no  one  is  injured  by  the  failure  of  the  clerk  to  perform  his 
duty  as  to  indexing,  and  though  the  purchaser  has  had  his 
deed  correctly  transcribed  and  spread  upon  the  record,  still 
the  recording  should  be  held  void.     In  my  opinion,  the  proper 
office    of    the    index    is    what    its    name    imports — to    point 
to  the   record — but   that   it   forms   and   constitutes   no   part 
of    the    record.      The    statute    states,    without    reserve    or 
qualification,    that    when    an    instrument    is    filed    with    the 
recorder     and     transcribed     on     the     record,     it     shall     be 
considered  as  recorded  from  the  time  it  was  delivered.     From 
that  time  forth  it  is  constructive  notice  of  what  was  actually 
copied.     A  subsequent  section  for  the  purpose  of  facilitating 
research,  besides  recording,  devolves  a  separate,  distinct,  and 
independent  duty  upon  the  recorder,  and  in  the  event  of  a  non- 
compliance with  that  duty,  the  party  injured  has  his  redress. 
The  purchaser  or  grantee,  when  he  has  delivered  his  deed 
and  seen  that  it  was  correctly  copied,  has  done  all  the  law 
requires  of  him  for  his  protection;  and  if  any  other  person 
is  injured  by  the   fault  of  the  recorder  in  not  making  the 
proper  index,  he  must  pursue  his  remedy  against  that  ofifi- 


1280 


THE  LAW  OF  DEEDS. 


[chap.  XXII. 


cer  for  his  injury."  ®  In  Georgia,  the  court  considered  that 
the  index  was  intended  for  the  convenience  of  the  searcher. 
"If  the  clerk  fails  to  do  his  duty,  he  injures  those  who  desire 
to  search.  The  duty  is,  therefore,  to  the  searcher  and  to  the 
public,  and  not  to  the  holder  of  the  deed.  And  this  has,  as  we 
think,  always  been  the  understanding  of  the  law  in  this 
State."  ^  The  rule  that  generally  prevails  is,  that  the  index 
is  not  a  part  of  the  record,  and  that  a  grantee  cannot  suffer 
for  any  mistake  in  it.' 


6  In  Bishop  v.  Schneider,  46  Mo. 
472,  2  Am.  Rep.  533.  Under  the 
Kentucky  statute  the  record  of  the 
deed  is  notice,  even  if  the  officer 
fails  to  index  it,  and  the  deed  is 
withdrawn  by  the  grantee  without 
seeing  that  it  has  been  properly 
indexed:  Herndon  v.  Ogg,  119  Ky. 
814,  84  S.  W.  754. 

6  Chatham  v.  Bradford,  SO  Ga. 
327,  15  Am.  Rep.  692. 

7  Gilchrist  v.  Gough,  63  Ind.  576, 
30  Am.  Rep.  250;  Musgrove  v.  Bon- 
ser,  5  Or.  313,  20  Am.  Rep.  Ill; 
Board  of  Commrs.  v.  Babcock,  5 
Or.  472;  Green  v.  Carrington,  16 
Ohio  St.  548,  91  Am.  Dec.  103; 
Lincoln  Building  &  Sav.  Assn.  v. 
Hass,  10  Neb.  581;  Curtis  v.  Ly- 
man, 24  Vt.  338,  58  Am.  Dec.  174 ; ' 
Chatham  v.  Bradford,  50  Ga.  327, 
15  Am.  Rep.  692;  Nichol  v.  Hen- 
ry, 89  Ind.  54;  Barrett  v.  Pren- 
tiss, 57  Vt.  297;  Bedford  v.  Tup- 
per,  30  Hun,  174;  Stockwell  v.  Mc- 
Henry,  107  Pa.  St.  237,  52  Am.  Rep. 
475;  Swan  v.  Vogel,  31  La.  Ann. 
38;  Semon  v.  Terhune,  40  N.  J. 
Eq.  364;  Oconto  Co.  v.  Jerrard,  46 
Wis.  317;  Ely  v.  Wilcox,  20  Wis. 
523,  91  Am.  Dec.  436;  Fallas  v. 
Pierce,  30  Wis.  443;  Mutual  Life 
Ins.  Ca  V.  Dake,  1  Abb.  N.  C.  381. 


In  Mutual  Life  Ins.  Co.  v.  Dake, 
1  Abb.  N.  C.  881,  Mr.  Justice 
Smith,  after  stating  this  rule,  said: 
"In  reaching  this  conclusion,  I  have 
not  overlooked  the  practical  incon- 
veniences that  may  result  from  it 
in  searching  records.  But  the  duty 
of  the  court  is  only  to  declare  the 
law  as  the  legislature  has  laid  it 
down  Arguments  ab  inconvenien- 
ti  may  sometimes  throw  light  upon 
the  construction  of  ambiguous  or 
doubtful  words ;  but  where,  as  here, 
the  language  of  the  law  makes  it 
plain,  they  are  out  of  place.  In- 
conveniences in  practice  will  result, 
whichever  way  the  question  shall 
be  decided.  The  power  to  remedy 
them  is  in  the  legislature,  and  not 
in  the  courts.  Even  as  the  law  now 
stands,  the  party  injured  by  the 
omission  of  the  clerk  is  not  without 
remedy,  for  he  has  his  action 
against  the  clerk."  As  to  what  an 
index  of  records  should  contain, 
see  Smith  v.  Royalton,  53  Vt.  604, 
See,  also,  supporting  text,  Stock- 
well  v.  McHenry,  107  Pa.  St.  237, 
52  Am.  Rep.  475;  Barrett  v.  Pren- 
tiss, 57  Vt.  297;  Swan  v.  Vogel,  31 
La.  Ann.  38.  The  validity  of  a 
deed  as  notice  to  subsequent  pur- 
chasers is   not   affected   by   failure 


CHAP.    XXII.]  REGISTRATION    OF   DEEDS. 


1281 


§  696.  Comments. — In  those  States  where  a  mistake 
in  the  record  does  not  affect  its  power  of  imparting  construc- 
tive notice,  a  mistake  in  the  index  cannot  injure  the  grantee. 
In  Iowa,  the  decisions  are  founded  upon  the  express  language 
©f  the  statutes  of  that  State.  We  think  that  whether  the 
law  requires  an  index  to  be  kept  or  not,  a  grantee  who  has 
deposited  his  deed  for  record  should  not  suffer  for  a  mistake 
of  the  officer.  As  we  have  already  said,  we  consider  the 
true  principle  to  be,  unless  the  language  of  the  statute  neces- 
sarily leads  to  a  different  conclusion,  that  the  obligation  of 
the  grantee  as  to  giving  notice  ceases  when  he  has  filed  his  deed 
for  record.  For  any  mistake  made  in  the  index  or  record 
by  the  officer,  the  grantee  should  not  be  held  responsible,  but 
the  loss  should  fall  upon  the  subsequent  purchaser,  who  may 
have  his  remedy  against  the  recording  officer  for  the  negli- 
gent performance  of  an  official  duty.' 


of  the  clerk  to  index  it  properly  if 
it  had  been  delivered  to  the  clerk 
and  duly  admitted  to  record;  Va. 
etc.  Assn.  v.  Glenn,  99  Va.  460, 
39  S.  E.  136. 

8  In  Ritchie  v.  Griffiths,  1  Wash. 
429,  12  L.R.A.  384,  22  Am.  St.  Rep. 
155,  the  court  holds  that  under  the 
statute  of  that  State  the  index  is 
an  essential  part  of  the  record,  and 
says:  "While  it  is  true  that  Devlin 
in  his  work  on  Deeds,  section  696, 
seems  to  imply  that  an  index  is  not 
necessary  to  give  constructive  no- 
tice, yet  he  evidently  bases  the  idea, 
not  so  much  on  the  theory  that  the 
Index  is  not  a  part  of  the  record, 
as  from  his  general  conclusion  that 
the  obligation  of  the  grantee  as  to 
notice  ceases  when  he  has  filed  his 
deed  for  record.  And  he  qualifies 
this  general  statement  by  saying: 
"Unless  the  language  of  the  statute 
necessarily  leads  to  a  different  con- 
Deeds,  Vol.  n.— 81 


elusion' — a  qualification,  it  seems 
to  us  which  renders  meaningless 
the  genera?  statement;  for  as  con- 
structive notice  is  purely  statutory, 
it  must  necessarily  follow  that  it  is 
'the  language  of  the  statute'  that 
leads  to  one  or  the  other  of  the 
conclusions.  He  cites  Barney  v. 
Little,  15  Iowa,  527,  but  says  that 
'the  decision  in  that  case  was 
founded  upon  the  express  language 
of  the  statute  of  that  State,'  inti- 
mating that  in  consideration  of  the 
statute  the  conclusion  of  the  court 
was  correct;  and  in  as  much  as 
our  statutes  make  the  index  a  more 
important  factor  in  the  system  of 
registration  than  does  the  Iowa 
statute,  we  may  fairly  conclude 
that  under  a  statute  like  ours  the 
learned  author  would  consider  the 
index  an  essential  part  of  the  rec- 
ord." It  is  impossible  to  lay  down 
any  general  rule,  as  each  State  pro- 


1282  THE    LAW    OF    DEEDS.  [CHAP.    XXIL 

§  697.  Liability  of  recording  officer  for  error. — As  it 
is  the  duty  of  the  recording  officer  to  duly  index  and  record 
the  deed,  he  is  Hable  in  damages  to  the  party  injured 
for  a  breach  of  this  duty.  The  only  question  that  can  arise 
is,  who  is  the  party  aggrieved?  It  would  probably  be  held 
in  those  States  where  it  is  considered  that  a  deed  is  not 
duly  recorded  unless  properly  copied  upon  the  record-book, 
that  it  would  be  the  grantee,  who,  by  this  view,  is  the  one 
sustaining  the  injury.^  But  generally  the  claim  to  damages 
would  accrue  to  the  party  who  purchased  upon  the  assurance 
that  the  records  were  correct.^  The  statute  of  Missouri  re- 
quires the  recorder  to  keep  an  index,  and  declares  that  if 
he  fails  or  refuses  to  provide  and  keep  in  his  office  an  index 
of  the  character  required,  he  shall  pay  to  the  aggrieved  party 
double  the  damages  caused  thereby.  But  the  court  intimated 
that  if  a  purchaser  takes  his  deed,  without  attempting  to 
examine  the  records,  relying  exclusively  upon  the  represen- 
tations or  covenants  of  his  grantor,  or  should  rely  solely  upon 
the  representations  of  the  officer  that  the  title  was  perfect 
and  free  from  encumbrances,  it  could  not  with  reasonable 
propriety  and  fairness  be  said  that  such  purchaser  was  in- 
jured by  the  want  of  an  index.^   -In  Indiana,  where  the  view 

vides   its   own  methods    for   regis-  ^  Bishop  v.  Schneider,  46  Mo.  472, 

tering  instruments  affecting  title  to  479,  2  Am.  Rep.  533.     See  further 

land,  and  the  courts  of  each  State  as  to  the  liability  of  the  recording 

construe  their  own  statutes.  officer   for    damages    for   mistakes : 

3  See  Terrell  v.  Andrew  County,  Gilchrist -v.  Gough,  63  Ind.  576,  30 

44  Mo.  309.     The  clerk's  failure  to  Am.  Rep.  250;  Hunter  v.  Windsor, 

copy   the  description  correctly  will  24   Vt.    327;    Crews   v.    Taylor,    56 

not    prejudice   the    grantee,    as    the  Tex.  461;   Lee  v.   Bermingham,  30 

deed  is  constructive  notice  from  the  Kan.   312;    Mangold  v.   Barlow,  61 

time  it  is   filed  for  record :   Lewis  Miss.   593,  48  Am.   Rep.   84 ;    State 

V.  Hinman,  .56  Conn.  55.  v.    Davis,    96    Ind.    539;    Board    of 

1  Board     of     Commissioners      v.  Commissioners    v.    Babcock,    5    Or. 

Babcock,    5   Or.   472;    Mutual    Life  472;    Poplin    v.    Mundell,    27    Kan. 

Ins.  Co.  V.  Dake,  1  Abb.  N.  C.  381;  138;  Fox  v.  Thibault,  33  La.  Ann. 

Bishop  V.  Schneider,  46  Mo.  472,  2  32;   Walkins   v.   Wilhoit,    104    Cal. 

Am.  Rep.  533.  395. 


CHAP.    XXII.]  REGISTRATION    OF    DEEDS.  1283 

obtains  that  the  record  of  a  deed  is  notice  of  the  existence 
and  record  of  the  deed,  and  not  of  the  original  instrument,  a 
deed  containing  an  agreement  on  the  part  of  the  grantee  to 
assume  and  pay  the  sum  of  five  hundred  dollars  as  a  part  of  the 
mortgage  debt  on  the  land  conveyed,  was,  by  the  recorder's 
mistake,  recorded  in  such  a  manner  as  to  show  the  assump- 
tion on  the  part  of  the  grantee  of  only  two  hundred  dollars 
of  such  mortgage  debt.  The  recorder  and  his  sureties  were 
held  to  be  liable  upon  the  officer's  official  bond  for  the  dam- 
ages which  the  grantor  sustained  by  such  mistake.'  But  where 
the  deed  is  forged,  unless  the  recording  officer  was  aware  of 
the  forgery  he  is  not  liable  for  recording  it.* 

§  697a.  Duty  of  recording  officer. — The  duties  of  a  reg- 
ister of  deeds  are  generally  specifically  prescribed  by  the  stat- 
ute creating  or  regulating  the  office.  If  a  statute  makes  it  the 
duty  of  an  officer  to  provide  an  alphabetical  index  and  to 
keep  the  same  for  inspection,  it  is  his  duty  to  keep  such  in- 
dex with  the  same  care  that  he  is  required  to  use  in  keeping 
his  books  of  record.  If  any  one  is  injured  by  his  neglect  he 
is  liable,  or,  if  the  statute  provides  that  a  town  shall  be  liable, 
the  latter  may  be  held  responsible,  but  before  a  cause  of  ac- 
tion can  be  sustained  it  must  appear  that  the  damages  claimed 
were  caused  by  the  neglect.^  Where  the  statute  requires  an 
officer  to  keep  a  general  index  of  the  record  of  conveyances, 
a  failure  to  do  so  will  give  a  cause  of  action  to  a  party  injured. 
If  a  purchaser  searching  the  index,  fails  to  learn  of  the  exist- 
ence of  a  mortgage  because  it  was  not  indexed  and  buys  the 
property  believing  it  to  be  unencumbered  and  is  dispossessed  by 
foreclosure,  he  is  entitled,  in  an  action  on  the  official  bond  of 
the  officer,  to  recover  nominal  damages,  and  such  actual  dam- 
ages  as   were   proximately   caused   by  the   officer's   neglect.^ 

3  State  V.  Davis,  96  Ind.  539.  «  Norton  v.  Kumpe,  121  Ala.  446, 

*  Ramsey  v.  Riley,   13  Ohio,   157.       25    So.    841.      Mr.    Justice    Sharpe 

*  Hunter  v.  Windsor,  24  Vt.  327.      delivering  the  opinion  of  the  court 


1284  THE   LAW    OF   DEEDS.  [CHAP.    XXU. 

But  if  the  intention  of  the  statute  is  that  the  index  shall  serve 
merely  as  a  guide  to  the  record,  and  it  is  not  a  part  of  the 
record  itself,  then  a  failure  to  index  a  conveyance 
does  not  make  the  record  defective  in  any  essential 
respect  so  as  to  deprive  the  conveyance  first  record- 
ed of  its  priority.'  Where  the  statute  declares  that  the 
conveyance  shall  be  considered  as  recorded  from  the  time  of 
its  delivery  to  the  recording  officer,  nothing  more  is  required 
to  be  done  to  render  the  record  complete.  But  notwithstand- 
ing that  priority  may  not  be  affected,  the  officer  may  be  liable 
in  a  civil  action  to  the  party  injured  by  his  omission  or  neg- 
lect.' Although  an  index  may  not  be  necessary  to  render  the 
record  effective  as  constructive  notice  to  a  subsequent  pur- 
chaser, still  for  misfeasance,  or  non-feasance,  the  recording 
officer  is  liable  to  the  injured  party,  and  where  his  official 
delinquency  consists  of  his  failure  to  index  the  record  of  an 
instrument  the  injured  party  is  the  party  misled  by  the  want 
of  the  index,  and  not  the  person  whose  deed  has,  in  other  re- 
spects, been  duly  recorded.® 

said :  "The  direction  to  prepare  ing  to  point  to  all  incumbrances, 
and  keep  a  general,  direct,  and  re-  it  was  silent  as  to  some.  The  mere 
versed  index  of  prior  as  well  as  constructive  notice  which  the  regis- 
subsequently  recorded  conveyances  tration  statutes  impute  from  the 
was  as  imperative  and  demanded  filing  of  a  conveyance  for  record 
the  same  measure  of  care  and  ac-  is  for  the  protection  of  those  claim- 
curacy  in  its  execution,  as  did  the  ing  under  the  conveyance,  and  does 
statutory  direction  to  record  and  not  exist  for  the  protection  of  the 
index  in  the  first  instance.  The  recording  offices  from  liability  for 
purpose  of  the  enactment  was  to  nonperformance  of  official  duty." 
afford  faculties  for  a  search  of  the  '  Mutual  Life  Ins.  Co.  of  New 
record,  and  such  purpose  would  York  v.  Dake,  87  N.  Y.  257. 
fail  if  no  reliance  could  be  had  ^  Mutual  Life  Ins.  Co.  of  New 
upon  the  general  index.  If  it  car-  York  v.  Dake,  87  N.  Y.  257. 
ried  no  presumption  of  verity,  the  ^  Green  v.  Carrington,  16  Ohio 
searcher  must  resort  to  the  records,  St.  548,  551,  91  Am.  Dec.  103.  See, 
as  if  there  was  no  general  index.  also,  Jennings  Lessee  v.  Wood,  20 
The  general  index,  if  consulted  Ohio,  261 ;  Matter  of  Holliday,  13 
at  all,  would  become  a  snare,  rath-  Ohio  Cir.  Ct.  672,  6  Ohio  Civ.  Dec. 
er  than  a  guide,  if,  when  purport-  751;  People  v.  Nash,  62  N.  Y.  484; 


CHAP,    XXII.]  REGISTRATION    OF    DEEDS.  1285 

§  697b.  Required  to  perform  statutory  duty  only. — In- 
asmuch as  the  duty  of  the  recorder  is  fixed  by  statute  he  is 
not  required,  in  the  absence  of  a  statutory  provision,  to  search 
the  records  for  the  purpose  of  ascertaining  whether  persons 
whose  names  are  attached  to  a  petition  for  a  Hquor  Hcense,  are 
freeholders  or  not.-'  If,  however,  pursuant  to  statute,  he  un- 
dertakes to  give  a  certificate  of  all  the  instruments  recorded 
in  his  office,  he  must  mention  all,  and  cannot  decide  as  to 
their  validity.^  But  he  is  not  required  to  certify  that  a  de- 
scription covers  part  of  a  larger  tract.  The  person  who  de- 
sires a  search  cannot  carve  out  a  description  of  land  at  his  vo- 
lition, and  require  the  services  of  the  officer  to  ascertain  the 
condition  of  the  title,  nor  is  he  required  "upon  a  call  for  a 
search  by  such  a  description,  to  certify  that  he  can  find  no 
deeds  on  record  conveying  the  premises  described,  for  the 
premises  described  may  be  embraced  in  the  general  description 
in  some  deed  on  record,  and  he  is  under  no  obligation  to  em- 
ploy a  surveyor,  or  to  make  inquiries  or  examinations  outside 
of  his  office  to  ascertain  facts  which  do  not  appear  distinctly 
by  his  records.  He  may  decline  to  make  such  a  search  until 
he  is  furnished  with  the  information  that  will  enable  him  to 
find  and  identify  the  premises  by  his  records."  ^  A  recording 
officer  may  be  prevented  by  statute  from  practicing  law. 
Such  a  statute  is  not  unconstitutional  because  a  person  who 
takes  the  benefit  of  an  office  also  assumes  its  burdens.*  It 
is  not  his  province  to  decide  upon  the  validity  of  conveyances 
offered  to  him  for  registration,  but  his  duty  is  to  receive,  file 
and  record  such  conveyances,  as  the  statute  permits  to  be  re- 
ceived, filed  and  recorded.^  Where  the  office  is  created  by  the 
legislature,  that  body,  in  the  absence  of  a  constitutional  inhi- 

Morton  v.  Smith,  (Tex.  Civ.  App.)  ^  Ballinger  v   Deacon,  44  N.  J.  L. 

44  S.  W.  683.  559,  563. 

1  State  V.  Holm,  70  Neb.  606,  64  *  McCracken  v.  State,  27  Ind.  491. 
L.R.A.  131,  97  N.  W.  821.  ^  People    v.    Fromme,    35    N.    Y, 

2  SacerdoUe  v.  Duralde,  1  La.  App.  Div.  459,  54  N.  Y.  Supp.  833. 
482.  But  it  is  said  that  he  is  not  abso- 


1286 


THE    LAW    OF    DEEDS. 


[CIIAP.    XXII. 


bition,  can  abolish  it.^  As  a  conveyance  is  deemed  to  be  re- 
corded when  filed,  no  injury  can  be  caused  to  any  one  by 
the  failure  of  the  officer  actually  to  record  it.'  The  recorder 
must  record  conveyance  in  the  order  in  which  they  are  pre- 
sented to  him,'  Where  a  statute  prescribes  the  method  of  in- 
dexing deeds  and  mortgages,  a  board  of  supervisors  of  a  coun- 
ty has  no  power  to  alter  it  or  to  interfere  with  the  custody  of 
the  records  or  to  transfer  the  duty  or  power  of  making  in- 
dexes to  another  person.^  The  failure  of  a  recorder  to  keep 
his  office  at  the  county  seat  does  not  invalidate  the  records 
in  his  office.^  Where  the  statute  requires  the  recorder  to  keep 
indexes  of  the  records,  it  will  be  presumed  that  he  has  com- 
plied with  the  statute,  on  the  ground  that  all  public  officers 
are  presumed  to  have  performed  their  duty.^  While  a  record- 
ing officer  is  a  ministerial  officer  he  is  not  entirely  without 
discretion,  although  he  cannot  exercise  a  judicial  discretion.^ 
He  is  liable  on  his  bond  for  his  failure  to  register  a  deed  cor- 
rectly, notwithstanding  his  negligence  is  not  willful,  nor  of 
such  a  gross  character  as  to  imply  willfulness.*  A  county  of- 
ficer is  liable  on  his  bond  for  errors  or  omissions  in  searches 
of  title  where  the  statute  makes  it  his  duty  to  supply  searches.^ 
But  if  there  is  no  statutory  obligation  he  is  not  liable  in  his 
official  capacity  for  lack  of  skill  or  care,  but  in  such  an  event 
he  is  liable  individually,  as  if  he  were  engaged  in  the  private 
business  of  searching  records.^ 


lutely  without  discretion  in  decid- 
ing whether  an  instrument  offered 
to  him,  is  entitled  to  registration : 
Dancy  v.  Clark,  24  App.  Cas.  D. 
C.  487. 

estate  v.  McDaniel,  19  S.  C.  114. 

■'Kessler  v.  State,  24  Ind.  313. 

8  Florence  v.  Mercier,  2  La.  487. 

9  People  V.   Nash.  62  N.   Y.  484, 
affirming  3  Hun,  535. 

1  Thonic^s    V.    Hanson,    59    ]\Iinn. 
274,  61  N.  W.  135. 


2  Fullerton  Lumber  Co.  v.  Tink- 
er, 22  S.  D.  427,  118  N.  W.  700. 

3  Dancy  v.  Clarke,  24  App.  D.  C. 
487. 

*  State  V.  McCIellan,  113  Tenn. 
616,  85   S.   W.  267. 

5  Ziegeler  v.  Commonwealth,  12 
Pa.  St.  227;  Philadelphia  v.  Ander- 
son, 142  Pa.  St.  357,  12  L.R.A.  751; 
Lusk  V.  Carlin,  5  111.  395. 

e  Mai  lory  v.  Ferguson,  50  Kan. 
685,    22    L.R.A.    99,    32    Pac.    410; 


CHAP.    XXII.]  REGISTRATION    OF    DEEDS.  1287 

§  697c.  Liability  of  officer  for  negligence. — An  action 
for  damages  may  be  maintained  by  the  party  aggrieved  against 
a  register  of  deeds  for  injury  caused  by  the  faikire  to  per- 
form a  duty  placed  on  him  by  law  or  by  the  negligent  per- 
formance of  such  duty.'  The  parties  to  the  conveyance  are 
the  "parties  aggrieved"  within  the  meaning  of  a  statute  mak- 
ing the  recorder  liable  for  damages  caused  by  his  negligence.® 
A  recording  officer  who  receives  a  conveyance  for  record  is 
liable  if  he  returns  it  or  delivers  it,  before  it  is  recorded.' 
If  the  officer  does  not  examine  the  record  itself,  but  relies 
solely  on  a  marginal  entry,  he  is  negligent.-^  But  if  a  party 
does  not  examine  the  records,  he  cannot  be  said  to  be  misled 
by  the  omission  of  an  officer  to  index  a  mortgage.*  If  the 
statute  does  not  obligate  a  recorder  to  certify  abstracts  of 
title  his  liability,  in  case  of  a  false  certificate  is  merely  for  a 
breach  of  his  contract  obligation.  He  is  not,  under  these  cir- 
cumstances liable  in  his  official  capacity.' 

Smith  V.  Holmes,  54  Mich.  104,  19  182,  32  South.  531;  Schell  v.  Stein, 

N.    W.    767;    Mechanics'    Building  76  Pa.   St.  398,   18  Am.  Rep.  416; 

Assn.  V.  Whitacre,  92  Ind.  547.  Houseman  v.  Girard  Mut.  Building 

7  Hartwell  V.  Riley,  47  N.  Y.  App.  Assn.,    81    Pa.    St.    256;    Peabody 

Div.  154,  62  N.  Y.  Supp.  317;  Van  Building    Assn.    v.    Houseman,    89 

Schaick  v.  Sigel,  58  How.  Pr.  211,  Pa.  St.  261,  23  Am.  Rep.  757. 

affirmed  9  Daly,  383,  60  How.   Pr.  8  Watkins   v.   Wilhoit,    (Cal.)    35 

122,    11    N.    Y.    Wkly.    Dig.    1177;  Pac.  646;  Dufify  v.  Wilhoit,   (Cal.) 

Mechanics'  Building  Assn.  v.  Whit-  35    Pac.    651. 

acre  92  Ind.  547 ;  Reeder  v.   State,  ^  Welles   v.   Hutchinson,  2  Root, 

98   Ind.    114;    State   v.    Davis,    117  85. 

Ind.    307,   20   N.    E'.    159;    State    v.  l  Wacek  v.  Frink,  51   Minn.  282, 

Green,  124  ^lo.  App.  80,  100  S.  W.  53  N.  W.  633,  38  Am.  St.  Rep.  502. 

1115;  Welles  v.  Hutchinson,  2  Root  2  Lyman  v.   Edgerton,  29  Vt.    (3 

(Conn.),  85;  Sutherland  First  Nat.  WiUiams),  305,  70  Am.  Dec.  415. 

Cank  V.  Clements,  87  Iowa,  542,  54  ^  Mechanics'     Building    Assn.    v. 

N.   W.   197;   Luther  v.   Banks,    111  Whitacre,  92  Ind.  547.     In  this  case 

Ga.  374,  36   S.    E.  826;    Falconer's  the    recorder    was    held    liable    for 

Succession,  4  Rob.    (La.)    5;    Sau-  the  damages  caused,  where  he  en- 

vinet  V.  Landreaux,  1  La.  Ann.  219;  tered  the  record  of  payment  on  the 

Chige    V.    Landreaux,    2    La.    Ann.  margin  of  the  wrong  mortgage  and 

606;    Gordon    v.    Stanley,    108    La.  as    a    consequence    a    party    loaned 


1288  THE    LAW    OF    DEEDS.  [CHAP.    XXII. 

§  697d.  Damages. — Unless  an  actual  loss  is  sustained, 
the  recorder  is  liable  only  for  nominal  damage  for  a  mis- 
take.* A  recorder  is  liable  for  the  mistake  of  his  deputy.^ 
If  the  statute  requires  the  recorder  to  index  immediately  an  in- 
strument filed  with  him  for  record,  a  delay  in  indexing  is  pre- 
sumptive evidence  of  negligence.^  The  failure  of  a  register 
of  deeds  to  index  a  mortgage  as  required  by  statute,  renders 
him  liable  in  damages,  under  a  statute  declaring  that  public 
officers  shall  be  liable  for  all  acts  "done"  by  virtue  of  their 
office.'  The  implication  that  each  grantee  holds  an  undivided 
moiety  of  the  land  does  not  arise  from  a  certificate  of  the 
recorder  that  the  title  to  the  land  is  in  the  two  grantees.®  The 
question  whether  in  a  particular  case  an  officer  has  been  negli- 
gent so  as  to  subject  him  to  damages,  may  be  a  question  for 
the  jury.®  If  a  register  of  deeds  fails  to  notice  a  mortgage 
on  the  tract  index  when  he  is  required  to  do  so  by  statute,  he 
is  liable  on  his  bond,  to  a  purchaser,  for  such  damages  as  have 
been  caused  by  his  neglect,  where  the  purchaser,  relying  on 
the  index  had  bought  up  the  mortgage,  and  had  enforced  it 
to  the  extent  that  it  embraced  other  property,  and  had  ex- 
hausted his  remedies  against  the  vendor  and  the  party  exe- 
cuting the  note  secured  by  the  mortgage.®*  Where,  under  the 
statute  of  a  state,  a  recorder  is  prohibited  from  entering  satis- 
faction of  record  of  a  mortgage  without  the  production  of 
the  note  secured  or  of  an  affidavit  of  payment,  the  fact  that 
it  is  presumed  that  an  intending  purchaser  of  land  knows  the 

money  and  took  as  security  a  mort-  105,  23   S.   E.  93.     A   recorder  of 

gage   on   the   land    which   appeared  deeds   is  liable   for  a   false  certifi- 

to  be  free  from  the  incumbrance.  cate:    Schell   v.   Stein,   76   Pa.    (26 

4  State  V.  Davis,  117  Ind.  307,  20  P.    F.    Smith),   398,    18   Am.    Rep. 

N.    E.    159;    Kimball   v.    Connolly,  416. 

2  Abb.  Dec.  504,  33  How.  Pr.  247.  8  Tripp  v.  Hopkins,   13  R.  I.  99. 

BVan  Schaick  v.  Sigel,  58  How.  9  Morton    v.    Smith,    (Tex.    Civ. 

Pr.  211.  App.)  44  S.  W.  683. 

6  First    Nat.    Bank    v.    Clements,  ^a  Johnson  v.  Brice,  102  Wis.  575, 

87  Iowa,  542,  54  N.  W.  197.  78  N.  W.  1086. 

■^  State    V.    Grizzard,    117    N.    C 


CHAP.    XXII.]  REGISTRATION    OF    DEEDS.  1289 

law,  will  not  relieve  the  officer  from  liability  for  the  injury 
resulting  to  the  purchaser,  if  the  former  enters  the  sati.sf action 
without  the  production  of  the  evidence  required  by  the  stat- 
ute.* If  a  loss  is  sustained  by  a  mortgagee,  caused  by  the 
failure  of  a  deputy  county  clerk,  properly  to  index  a  lis  pend- 
ens, the  principal  is  liable,  although  the  act  is  a  purely  minis- 
terial one,  occurring  in  the  ordinary  course  of  business  of  the 
office.''  But  although  injury  may  result,  the  officer  may  not  be 
guilty  of  negligence.  Thus,  a  mortgagor  presented  to  the  offi- 
cer, the  original  of  a  mortgage  duly  recorded,  together  with 
an  order  directed  to  the  officer,  purporting  to  bear  the  signa- 
ture of  the  mortgagee,  to  cancel  the  mortgage  on  the  record. 
This  order  was  forged,  but  the  officer  had  no  knowledge  of 
its  invalidity  nor  had  he  any  reason  for  suspicion.  On  the 
question  of  his  responsibility  in  damages,  the  court  considered 
that  his  act  in  recording  the  forged  order  did  not  make  him 
liable  to  a  person  injured  by  this  act,  for  the  reason  that  the 
possession  of  the  original  mortgage  by  the  mortgagor  relieved 
the  officer  from  all  imputation  of  neglect,  in  the  absence  of 
any  other  fact  placing  upon  the  officer  the  duty  of  prosecuting 
an  inquiry  into  the  genuineness  of  the  order.^ 

§  69  7e.     Damages  must  be  caused  by  official  default. — 

A  register  of  deeds  in  furnishing  a  certificate  of  title,  does 
not  become  a  guarantor  of  title,  but  he  is  liable  for  any  dam- 
ages that  result  from  his  failure  to  exercise  proper  care  or 
skill  in  the  preparation  of  the  abstract.*  Generally  speaking, 
no  one  has  a  cause  of  action  against  another  unless  there  has 
been  some  contractual  relation  between  them  or  he  has  been 
damaged  by  fraud,  collusion  or  falsehood.  An  attorney  who 
examines  an  abstract  is  liable  only  to  the  person  employing 

1  State  ex  rel.  Phillips  v.  Green,  3  Luther  v.    Banks,    111    Ga.    374, 

124  Mo.  App.  80,  100  S.  W.  1115.  36  S.  E.  826. 

2Hart\vell  v.  Riley,  47  App.  Div.  *  Wacek  v.  Frank,  51  Minn.  282, 

N.  Y.  154,  62  N.  Y.  Supp.  317.  53  N.  W.  633,  38  Am.  St.  Rep.  502. 


1290  The  law  of  deeds.  [chap.  xxii. 

him  and  not  to  a  stranger  who  may  have  action  upon  his 
opinion.^  But  it  was  held  in  one  case  that  a  person  who  makes 
an  abstract  of  title  guaranteeing  it  to  be  correct  must  re- 
spond in  damages  to  a  purchaser  who  placed  reliance  upon 
the  abstract  and  declined  to  purchase  the  land  without  it,  if  it 
omits  to  mention  conveyances  which  are  recorded,  not- 
withstanding the  fact  that  the  owner  of  the  property  caused 
the  abstract  to  be  made  at  his  own  expense,  received  it 
from  the  maker,  and  delivered  it  for  examination  to  the  per- 
son intending  to  purchase.®  This  decision  is  based  upon  the 
ground  that  the  acceptance  or  refusal  of  the  other  to  sell  made 
a  privity  of  contract  between  the  purchaser  and  the  maker 
of  the  abstract.  But,  generally,  an  officer  is  liable  in  dam- 
ages for  negligence  on  making  a  search  to  the  one  only  for 
whom  it  is  prepared.'  The  damage  sustained  must  be  the 
direct  effect  of  the  mistake  of  the  officer  ''^  and  not  the  result  of 
the  fault  or  laches  of  the  party  injured.*  A  subsequent  pur- 
chaser of  the  party  who  ordered  the  search  has  no  cause  of 
action  against  a  recorder  for  a  false  certificate  of  title.'  If, 
through  inexcusable  neglect,  a  recorder  fails  to  index  a  trust 
deed  properly,  it  will  be  presumed  that  he  acted  wilfully,  al- 
though it  may  be  impossible  to  show  a  wilful  purpose  to  in- 
jure.^ 

§  69 7f.     When  statute  of  limitations  begins  to  run. — 

The  cause  of  action  for  damages  for  a  false  certificate  of 
search  where  this  is  authorized  by  statute  accrues  at  time 

5  National      Savings      Bank      v.  '  Bishop    v.    Schneider,    46    Mo. 
Ward,  100  U.  S.  195,  25  L.  ed.  621 ;      472,  2  Am.  Rep.  533. 

Fish  V.  Kelly,  17  G.  B.,  N.  S.  194;  9  Houseman      v.      Girard      Mut. 

Wharton    on    NegHgence,    §§    339-  Building    &    Loan    Assn.,    *81    Pa. 

341.  (32  P.  F.  Smith),  256. 

6  Dickie  V.  Abstract  Go.,  89  Tenn.  i  Maxwell    v.    Stuart,    99    Tena 
431,  24  Am.  St.  Rep.  616.  402,   42    S.    W,   34. 

7  Day  V.   Reynolds,  23  Hun,  131. 
"^^  Kimball  v.  Gonnolly,  33  How. 

Pr.  247. 


CHAP.    XXII.]  REGISTRATION    OF    DEEDS.  1291 

that  the  claimant  parted  with  his  money  on  the  faith  of  the 
certificate,  ahhough  at  that  time  there  may  have  been  no 
special  damages  and  the  claimant,  would  at  the  time  of  the 
breach  of  duty  be  entitled  to  at  least  nominal  damages.^  Nor 
can  a  distinction  as  to  the  time  when  the  cause  of  action  ac- 
crues, be  drawn  between  torts  arising  from  contracts  and 
those  which  arise  from  official  misfeasance.  "Such  a  dis- 
tinction," said  the  court,  "is  not  found  in  the  statute,  and  it 
is  clearly  opposed  to  reason,  for  why  should  a  duty  imposed 
by  the  legislature  be  obligatory  rather  than  one  which  is  vol- 
untarily assumed  ?  Nay,  a  man  might  rather  be  excused  from 
the  performance  of  all  obligation  forced  upon  him,  than  from 
one  which  of  his  own  will  he  took  upon  himself.  Indeed,  the 
two  become  equal  and  all  distinction  appears,  only  when  we 
consider  that  the  statutory  duty  is  assumed  as  part  of  the  office 
which  the  incumbent  undertakes  to  fill.  Moreover,  the  officer 
having  thus  assumed  the  duty  and  being  paid  therefor  by 
the  party  who  requires  its  performance,  the  transaction  to  all 
intents  and  purposes  becomes  a  personal  contract,  as  much  so 
as  though  it  were  wholly  voluntary  and  not  statutory."  '  If 
the  recorder  negligently  fails  to  copy  correctly  the  description 
of  the  land  contained  in  a  mortgage,  a  cause  of  action  arises 
against  him,  it  is  held  in  Indiana,  from  the  time  of  the  wrong 
registration.*  The  running  of  the  statute  of  limitations,  it  is 
likewise  held,  is  not  prevented  by  the  ignorance  of  the  one 
entitled  to  bring  an  action  nor  the  silence  of  the  person  liable.^ 

2  Owen  V.  Western  Savings  Black,  P.  J.,  said:  "The  controll- 
Bank,  97  Pa.  St.  47,  39  Am.  Rep.  ing  question  is  whether  or  not  the 
794.  action  was  barred  by  the  statute  of 

3  Owen  V.  Western  Savings  Bank,  limitations,  and  the  determination 
97  Pa.  St.  47,  39  Am.  Rep.   794.  of  this  matter  depends  upon  the  so- 

*  State  V.  Walters,  31  Ind.   App.  lution  of  the  question  as  to  when 

11,  66  N.  E.   182,  99  Am.   St.  Rep.  the  cause  of  action  accrued  on  tlie 

244.  recorder's     official     bond     for     the 

5  State  V.  Walters,  31   Ind.   App.  breach  alleged;  that  is.  When  could 

77,  66  N.  E.   182,  99  Am.  St.  Rep.  the   recorder   first   have  been   sued 

244.     On  this  point,  the  court,  per  for  the  official  error  charged?    Our 


1292 


THE    LAW    OF    DEEDS. 


[chap.    XXII. 


A  person  holding  himself  out  as  an  examiner  of  titles  is  re- 
quired to  exercise  skill  and  care  in  his  examination,  and  if 


statute  (Burns  Rev.  Stats.  1901,  § 
294)  provides :  'All  actions  against 
a  sheriff,  or  other  public  officer,  or 
against  such  officer  and  his  sureties 
on  a  public  bond,  growing  out  of 
a  liability  incurred  by  doing  an  act 
in  an  official  capacity,  or  by  the 
omission  of  an  official  duty,'  shall 
be  commenced  within  five  years 
after  the  cause  of  action  has  ac- 
crued, and  not  afterward.  It  was 
the  statutory  duty  of  the  county 
recorder  to  record  the  mortgage 
for  the  relatrix  in  its  order;  and  if 
not  recorded  in  forty-five  days 
from  the  execution  thereof,  the 
mortgage  was  liable  to  be  defeat- 
ed in  favor  of  any  subsequent  pur- 
chaser, lessee,  or  mortgagee  in 
good  faith  and  for  a  valuable  con- 
sideration :  Burns'  Rev.  Stats.  1901, 
§§  3350,  8007;  United  States  Sav. 
etc.  Co.  V.  Harris,  142  Ind.  226,  237, 
40  N.  E.   1072,  41   N.  E.  451. 

"The  misdescription  of  the  land 
in  the  record  of  the  mortgage  ren- 
dered the  recording  worthless  from 
the  first.  The  debtor  continued 
personally  liable,  and  this  liability 
became  of  no  avail  to  the  relatrix 
— not  through  the  error  of  the  re- 
corder, but  by  reason  of  the  debt- 
or's insolvency.  The  security  of 
the  land  continued  available,  not- 
withstanding the  fault  in  the  re- 
cording, until  the  execution  of  the 
second  mortgage  which,  because  of 
the  recorder's  mistake,  was  a  su- 
perior lien,  and  finally  exhausted 
the  security.  The  damage  consist- 
ing of  the  loss  of  the  security  was 
a    direct    result    of    the    incorrect 


copying  of  the  description  of  the 
mortgaged  land  in  recording  the 
mortgage.  If  that  damage  had  ac- 
crued and  action  therefor  had  been 
commenced  within  the  period  of 
the  statute  after  the  recording  of 
the  mortgage,  there  can  be  no  doubt 
that  damages  for  the  loss  thereby 
sustained  might  have  been  recov- 
ered. 

"The  right  of  the  relatrix  to  have 
the  recording  of  her  mortgage  done 
correctly,  so  that  the  record  would 
constitute  constructive  notice  of  all 
her  rights  as  mortgagee,  was  as  ab- 
solute as  the  right  to  have  the 
mortgage  recorded.  As  between 
her  and  the  recorder,  she  was  un- 
der no  obligation  to  inspect  the 
record  of  her  mortgage  to  see  that 
it  was  safely  correct.  By  present- 
ing a  mortgage  in  due  form,  prop- 
er for  recording,  and  paying  the 
recorder's  fee,  she  did  all  that  was 
incumbent  upon  her  to  impose  the 
duty  upon  the  recorder.  When  the 
mortgage  was  recorded  so  incor- 
rectly that  the  record  was  worth- 
less as  notice,  there  was  at  once 
a  violation  of  official  duty  on  the 
part  of  the  recorder,  and  the  re- 
latrix was  at  once  thereby  deprived 
of  a  material  and  valuable  right. 
She  then  had  a  cause  of  action 
against  the  recorder.  If  she  had 
discovered  the  error  before  any  sub- 
sequent conveyance  or  encumbrance, 
and  the  original  mortgage  was  then 
still  in  existence  and  in  her  posses- 
sion, she  might  have  had  it  recorded 
again,  at  the  expense  of  the  fee 
therefor,  or,  if  in  such  case  the  or- 


CHAP.    XXII.]  REGISTRATION    OF    DEEDS. 


1293 


he  fails  to  exercise  such  skill  and  care,  he  is  liable  in  damages, 
for  any  loss  that  he  may  cause.     The  statute  of  limitations 


iginal  mortgage  was  lost,  she  per- 
haps might  have  procured  a  correc- 
tion of  the  record ;  but  in  the  mean- 
time (at  least,  after  the  expiration 
of  forty-five  days  from  the  execution 
of  her  mortgage)  she  would  have 
been  in  the  condition  of  a  mort- 
gagee whose  mortgage,  not  being 
recorded,  is  liable  to  be  cut  off  by 
intervening  circumstances  beyond 
her  control.  It  might  be  difficult, 
in  an  action  against  the  recorder, 
brought  before  the  accruing  of  any 
rights  of  others  in  the  land,  to 
say  what  considerations,  other  than 
th«  loss  of  the  fee  for  recording, 
should  enter  into  the  assessment  of 
the  amount  of  the  damages ;  but 
it  must,  we  think,  be  said  that  a 
right  having  been  violated  and  she 
having  suffered  an  individual 
wrong,  some  damage  must  be  pre- 
sumed, whether  susceptible  of  proof 
or  not:  See  Cooley  on  Torts,  2d 
ed.,  383. 

"It  cannot  be  doubted,  it  would 
seem,  that  a  cause  of  action  involv- 
ing the  essential  elements  of  an  ac- 
tionable tort  arose  in  favor  of  the 
relatrix  against  the  recorder  im- 
mediately upon  the  commission  of 
the  wrong  of  recording  her  mort- 
gage incorrectly,  the  amount  of  the 
damage  being  determinable  by  a 
jury,  under  instructions.  Such  an 
action  would  not  be  like  an  action 
for  a  continuing  nuisance,  for 
which  damages  may  be  recovered 
from  time  to  time  as  they  have  ac- 
crued ;  but  it  would  be  one  in  which 
all  damages,  past  and  future,  so  far 


as  ascertainable  would  be  recover- 
able. 

"The  case  before  us  is  not  gov- 
erned by  the  principles  of  those 
wherein  some  act  has  been  done, 
which,  not  being  wrongful  at  the 
time,  or  not  being  wrongful  then 
as  to  the  plaintiff,  furnishes  an  el- 
ement of  an  action  only  after  spe- 
cific damage  has  resulted  there- 
from, and  the  right  of  action  does 
not  accrue  until  the  special  dam- 
age complained  of  has  accrued. 
There,  the  damage  being  the  gist 
of  the  action,  the  time  runs  only 
from  the  actual  happening  of  the 
damage.  Here,  however,  there 
was  both  wrong  and  injury  as  soon 
as  the  error  had  been  committed. 
The  mistake  in  the  recording  was 
not,  as  to  the  mortgagee,  some- 
thing which  might  rightfully  be 
done,  and  which  could  not  be  re- 
garded as  a  thing  amiss  until  some 
damage  should  actually  accrue 
therefrom;  but  it  was  in  itself  a 
thing  amiss.  Where  damage  has 
so  accrued,  further  consequential 
damage  will  not  give  rise  to  a 
fresh  cause  of  action.  We  are  con- 
strained to  hold  with  the  court  be- 
low that  the  statute  of  limitations 
barred  the  action. 

"There  has  been  some  discus- 
sion by  counsel  of  the  law  relat- 
ing to  the  concealment  of  the  fact 
of  liability  to  an  action  by  one 
party,  and  the  discovery  of  the 
cause  of  action  by  the  other 
(Burns'  Rev.  Stats.  1901,  §  301); 
but  the  case  at  bar  affords  no  oc- 
casion   for    the    postponement    of 


1294 


THE    LAW    OF    DEEDS. 


[chap,    XXII. 


begins  to  run  from  the  time  at  which  he  makes  his  report.* 
Under  the  Kansas  statute,  an  action  for  damages  caused  by 
the  negligence  of  a  register  of  deeds  in  recording  an  instru- 
ment comes  under  the  class  enumerated  in  the  statute  as  "an 
action  for  injury  to  the  rights  of  another,  not  arising  on  con- 
tract," and  it  should  be  brought  within  the  time  limited  by  the 
statute  for  the  commencement  of  that  class  of  actions.''^  The 
cause  of  action  in  some  states  is  considered  as  arising  not 
when  the  mistake  is  made,  but  when  the  vendee  is  deprived  of 
his  property.* 

§  698.  Correction  of  mistake  in  record. — The  officer 
who  has  recorded  the  deed  has  the  power  to  correct  any  mis- 
take made  in  copying  the  deed  into  the  record-book.^  But 
where  the  view  prevails  that  subsequent  purchasers  are  charged 
with  notice  of  such  facts  only  as  the  records  disclose,  *the 
corrections  cannot  affect  the  rights  of  a  purchaser  without  no- 


the  running  of  the  statute  of  lim- 
itations on  the  ground  of  conceal- 
ment. The  fact  that  a  person  en- 
titled to  an  action  has  no  knowl- 
edge of  his  right  to  sue,  or  of  the 
facts  out  of  which  his  right  arises, 
does  not  prevent  the  running  of 
the  statute,  or  postpone  the  com- 
mencement of  the  period  of  limi- 
tation, until  he  discovers  the  facts 
or  learns  of  his  rights  thereunder. 
Nor  does  the  mere  silence  of  the 
person  liable  to  the  action  prevent 
the  running  of  the  statute.  To 
have  such  effect,  there  must  be 
something  done  to  prevent  discov- 
ery— something  which  can  be  said 
to  amount  to  concealment :  Ware 
v.  State,  74  Ind.  181;  Schultz  v. 
Board  etc.,  95  Ind.  323;  Pence  v. 
Young,  22  Ind.  App.  427,  S3  N.  E. 
1060;  Bower  v.  Thomas,  22  Ind. 
App.  505,  54  N.  E.  142. 


"To  constitute  the  concealment 
which  will  postpone  the  operation 
of  the  statute  of  limitations,  there 
must  be  more  than  mere  silence  or 
general  declarations ;  there  must  be 
fraud  in  act  or  statement,  intend- 
ed to  prevent  knowledge  of  the  ex- 
istence of  the  cause  of  action,  and 
operating  to  prevent  discovery: 
Jackson  v.  Jackson,  149  Ind.  238, 
47  N.  E.  963." 

6Lattin  v.  Gillette,  95  Cal.  317, 
29  Am.  St.  Rep.  115. 

"i"  Hatfield  v.  Malin,  6  Kan.  App. 
355,  50  Pac.  108. 

8  State  V.  McClelian,  113  Tenn. 
616,   85   S.   W.  267. 

9  Chamberlain  v.  Bell,  7  Cal.  292, 
68  Am.  Dec.  260;  Baldwin  v.  Mar- 
shall, 2  Humph.  116;  Sellers  v. 
Sellers,  98  N.  C.  13,  3  S,  E.  Rep. 
917. 


CHAP.    XXII.]  REGISTRATION    OF    DEEDS.  1295 

tice  of  the  mistake,  who  became  such  before  the  correction 
was  made.  Thus,  where  a  grantee  had  his  deed  recorded,  but 
by  mistake  the  number  and  description  of  the  lots  conveyed 
were  omitted  in  the  record,  and  another  person  afterward 
bought  the  same  lots  of  the  same  grantor,  and  subsequently 
the  record  of  the  first  grantee's  deed  was  amended  by  in- 
terlineation of  the  description,  it  was  held  that  the  interline- 
ation could  impart  notice  only  from  the  time  it  was  made,  and 
hence  that  the  second  grantee  had  no  notice  of  the  previous 
conveyance  of  the  property.^  But  under  the  statute  in  Cali- 
fornia, providing  for  the  filing  in  the  office  of  the  recorder  a 
duplicate  of  a  sheriff's  certificate  of  sale,  it  was  held  where 
such  duplicate  was  deposited  by  the  sheriff  with  the  recorder, 
and  marked  as  filed  by  the  latter,  but  was  recorded  in  a  book  of 
deeds  as  a  deed,  and  regularly  indexed  as  such,  and  afterward 
placed  in  a  file  of  recorded  deeds,  where  it  remained  for  a 
number  of  years,  that  it  imparted  notice  to  subsequent  pur- 
chasers.^ 

§  699.     Reformation   of   deed — Correcting   record. — A 

court  has  not  power  to  order  the  erasure  of  words  from  a  deed, 
or  to  order  the  recorder  to  alter  his  record  when  he  has  cor- 
rectly copied  the  deed.  This  is  not  the  proper  mode  of  reform- 
ing a  deed.  If  words  are  inserted  in  a  deed  which  the  par- 
ties did  not  intend  to  insert,  or  if  words  are  omitted  which 
the  parties  intended  to  insert,  the  court  should  find  that  there 
was  a  mistake,  and  in  what  it  consisted.^  The  usual  and 
most  appropriate  method  of  correcting  a  deed,  is  for  the  court 

1  Chamberlain  v.  Bell,  7  Cal.  292,  Dugan,   8   Ohio,   87,   31    Am.   Dec. 

68  Am.  Dec.  260.     See  Barnard  v.  432;   Farmer's  &   Mechanic's   Bank 

Campau,  29  Mich.  162;  Harrison  v.  v.   Bronson,   14   Mich.  361;   Burton 

Wade,    3    Cold.    505.      It    has   been  v.  Martz,  38  Mich.  761. 
held,    however,   that    the   recording  2  Page    v.    Rogers,    31    Cal.    293. 

officer    cannot    correct    the    record.  Mr.  Justice   Shafter,  however,  dis- 

See  Jennings  v.  Dockham,  99  Mich.  sented. 
253,  58  N.  W.  Rep.  66;   Foster  v.  »Toops  v.  Snyder,  47  Ind.  91. 


1296  THE   LAW    OF   DEEDS.  [CHAP.    XXII. 

in  its  decree  of  reformation  to  require  the  grantor  to  make 
a  new  deed  in  accordance  with  the  decree.  If,  however,  this 
course  is  inconvenient,  a  commissioner  should  be  appointed  to 
carry  out  the  decree.  When  the  new  deed  is  recorded,  a 
note  should  be  made  on  the  margin  of  the  record  of  the  first 
deed,  stating  the  reformation  and  showing  in  what  place  upon 
the  record  the  new  deed  can  be  found.* 

§  700.  Copy  of  seal. — A  record  is  not  vitiated  by  the 
omission  to  record  the  seal  or  to  indicate  in  some  manner  that 
a  seal  was  attached  to  the  instrument.*  "The  object  of  regis- 
tration of  a  deed  is  to  give  notice  to  the  public  of  the  fact 
that  the  title  to  the  property  has  passed  from  the  vendor, 
and  thereby  prevent  others  from  dealing  with  him  as  the 
owner.  The  conveyance  itself  is  required  to  be  copied  into 
the  record,  in  order  that  parties  may  determine  its  suffi- 
ciency and  the  character  of  the  estate  conveyed.  To  accom- 
plish this  end  it  is  not  necessary  that  the  seal  should  be  copied 
upon  the  book;  it  is  enough  if  it  appear  from  the  record 
that  the  instrument  copied  is  under  seal."  ^  A  certified  copy 
of  a  deed  from  the  recorder's  office  contained  in  the  margin 
of  the  certificate  of  acknowledgment  taken  before  a  notary,  and 

4  King  V,  Bales,  44  Ind.  219.  tion   clause;    Macey   v.    Stark,    116 

6  Geary    v.    City    of    Kansas,    61  Mo.  481,  21  S.  W.  Rep.  1088;  Reus- 

Mo.    378;    Hadden    v.    Larned,    87  sens   v.    Staples,   52   Fed.    Rep.   91 

Ga.   634;   Thorn  v.    Mayer,   33    N.  McCoy  v.  Cassidy,  96  Mo.  429 ;  Car- 

Y.  Supp.  664.    This  section  is  cited  rington  v.  Potter,  27  Fed.  Rep.  767 

as    authority    in    Summer    v.    Mit-  Todd    v.    Union    Dime    Sav.    Inst, 

chell,  29  Fla.  179,  14  L.R.A.  815,  118  N.  Y.  337.  See  §  247,  ante. 
30   Am.    St.    Rep.    106.     See,    also,  6  Smith  v.  Dall,  13  Cal.  510,  per 

Griffin  v.  Sheffield,  38  Miss.  359,  77  Terry,   C.   J.     See,  also,   Crowning 

Am.    Dec.    646;    Gale    v.    Shillock,  v.   Behn,    10  B.   Mon.  383;  Beards- 

4  Dak.    182;   29   N.   W.   Rep.   666;  ley  v.  Day,  52  Minn.  451,  55  N.  W. 

Hammond  v.  Gordon,  93  Mo.  223;  Rep  46;  Heath  v.  Big  Falls  Cotton 

Ballard  v.  Perry,  28  Tex.  347;  Wilt  Mills,  115  N.  C.  202,  20  S.  E.  Rep. 

V.  Harlan,  66  Tex.  660;   Coffee  v.  369;  Aycock  v.  Raleigh  etc  R.  R. 

Hendricks,    66    Tex.    676.      A    seal  Co.,  89  N.  C.  321. 
may  be  presumed  from  the  attesta- 


CHAP,    XXII.]  REGISTRATION    OF   DEEDS.  1297 

in  the  place  where  a  seal  is  usually  affixed,  the  words  "no 
seal,"  written  in  brackets  in  this  manner:  [No  seal.]  The 
concluding  clause  of  the  certificate  was  in  the  usual  form: 
"In  witness  whereof  I  have  hereunto  set  my  hand  and  affixed 
my  official  seal,  the  day  and  year  first  above  written."  The 
lower  court  refused  to  receive  the  copy  of  the  deed  in  evidence, 
on  the  ground  that  the  certificate  did  not  contain  the  seal 
of  the  notary.  But  on  appeal  the  supreme  court  held  that 
this  ruling  was  error,  and  that  the  words  "no  seal"  did  not 
imply  that  no  seal  was  affixed,  but  were  a  mere  note  by  the 
recorder  of  the  place  of  the  notary's  seal,  which  he  was  un- 
able to  copy.'  Under  the  statute  in  Missouri,  the  registration 
of  a  mortgage,  although  no  seal  or  scrawl  is  attached,  never- 
theless imparts  notice.  The  registration  law  in  that  State  is 
considered  as  intending  to  embrace,  not  only  legal  convey- 
ances, but  also  every  instrument  in  writing  affecting  the  legal 
or  equitable  title  to  land.' 

§  701.     Filing  deed  with  person  in  charge  of  office. — A 

person  who  causes  his  deed  to  be  placed  on  file  for  record 
in  the  office  provided  for  the  registration  of  deeds,  by  de- 
positing it  with  the  person  in  charge  of  the  office,  and  paying 
the  legal  fee,  does  all  that  the  law  requires.  It  is  not  neces- 
sary that  the  deed  should  be  delivered  to  the  recorder  or  a 
regular  deputy.     It  is  sufficient  that  the  deed  was  deposited 

■^^  Jones   V.    Martin,    16   Cal.    166.  "where  the  record  of  a  deed  does 

This  case  is  cited  in  Geary  v.  City  not  show  a  copy  of  the  seal,  as  such 

of    Kansas,   61    Mo.    378,    and    the  copies  are  usually  made  in  records, 

court  say  of  it:     "We  think  there  the  presumption  is  that  there  was 

was  no  error  in  this  ruling."     See,  no  seal  in  the  original."     And  see, 

also,   Hedden   v.    Overton,  4   Bibb.  also,  holding  substantially  the  same, 

406;    Griffin   v.    Sheffield,   38    Miss.  Todd  v.  Union  Dime   Savings   In- 

359,    n    Am.    Dec.    646;    Sneed    v.  stitution,  118  N.   Y.  337;   Floyd  v. 

Ward,   5   Dana,    187;    Ingoldsby  v.  Ricks,    14   Ark.   286,   58   Am.    Dec. 

Juan,   12  CaL  564.     But  see   Swit-  374. 

zer  v.  Knapps,  10  Iowa,  72,  74  Am.  »  McClurg  v.  Phillips,  57  Mo.  214. 
Dec.    375,    where    it    is    held    that 
Deed3,  Vol.  II.— 82 


1298  THE    LAW    OF    DEEDS.  [CHAP.    XXn. 

with  the  person  who  has  the  actual  control  of  the  office,  as  the 
recording  officer  is  responsible  for  the  acts  of  one  thus  per- 
mitted to  assume  possession  of  the  keys  and  papers  of  his  of- 
fice.^ The  agent  of  a  grantee  was  directed  to  take  the  deed 
to  the  recorder's  office  for  record.  This  was  done,  and  the 
deed  was  delivered  to  a  person  who  was  acting  as  recorder. 
The  latter  made  the  proper  indorsements  upon  the  deed,  three 
days  before  the  entry  of  judgment  against  the  grantor  in 
the  deed.  It  was  held  that  the  delivery  to  the  person  in 
charge  of  the  office  was  sufficient,  and  the  deed  was  entitled 
to  precedence  over  the  judgment.^  Mr.  Justice  Treat  said 
of  this  delivery  that  "this  was  all  a  prudent  man  would  deem 
necessary  or  advisable.  No  laches  can  be  imputed  to  the  gran- 
tees. They  were  not  required  to  ascertain  who  was  the  record- 
er de  jure.  It  was  sufficient  to  ascertain  who  was  in  posses- 
sion of  the  records  and  discharging  the  duties  of  the  office."  ' 

§  702.  Comments. — The  reason  for  this  rule  is  mani- 
fest. A  person  is  not  compelled  to  enter  into  an  examina- 
tion of  the  appointment  of  one  acting  as  a  deputy.  He  is 
not  required  to  ascertain  whether  such  person  has  taken  the 
oath  of  office,  filed  a  bond,  if  necessary,  or  complied  with 
other  provisions  of  the  statute.  The  officer  by  placing  him 
in  charge,  becomes  accountable  for  his  acts.     Even  if  the  offi- 

3  Dodge  V.  Protter,  18  Barb.  193,  unless  it  or  a  true  copy  of  it 
202;  Cook  v.  Hall,  1  Gilm.  (6  111.)  should  be  filed  in  the  office  of  the 
575;  Oats  v.  Walls,  28  Ark.  244;  town  clerk,  said:  "The  filing  con- 
Bishop  V.  Cook,  13  Barb.  326.  See  sisted  in  presenting  the  mortgage 
Bosley  v.  Forquar,  2  Blackf.  61,  63 ;  at  the  office  and  leaving  it  there, 
Deming  v.  Miles,  35  Neb.  739,  37  and  depositing  it  in  the  proper  place 
Am.    St.    Rep.    464.  with  the  papers  in  the  office.     This 

1  Cook  V.  Hall,  1  Gilm.  (6.  111.)  was  done  in  the  proper  case,  and 
575.  was  all  the  appellant  under  the  cir- 

2  Cook  V.  Hall,  supra.  In  Bishop  cumstances  could  do,  and  all  the 
V.  Cook,  13  Barb.  328,  Welles,  J.,  law  required  of  him.  Although 
with  reference  to  a  chattel  mort-  there  was  no  town  clerk  de  jure, 
gage  which  the  statute  declared  there  was  a  town  clerk's  office  and 
should  be  void  as  against  creditors,  a  town  clerk  de  facto." 


CHAP.    XXII.]  REGISTRATION    OF    DEEDS.  1299 

cer  is  not  allowed  by  law  to  appoint  a  deputy,  the  punishment 
for  a  neglect  to  attend  personally  to  the  duties  of  his  posi- 
tion should  be  against  him,  and  should  not  be  placed  upon  a 
person  doing  business  with  the  office.  Practically,  if  the 
person  in  charge  actually  files  the  instrument,  and  it  is  sub- 
sequently correctly  copied  into  the  record,  no  inconvenience 
can  arise,  or  damage  be  done.  But  a  case  may  be  imagined, 
though  it  does  not  seem  to  have  arisen,  or  at  least  has  not 
come  within  our  observation,  where  the  person  in  charge 
failed  to  record  the  instrument  at  all,  and  subsequent  pur- 
chasers are  thus  misled.  It  would  probably  be  held  that  in 
such  an  event  the  same  rule  should  apply  as  would  were  such 
person  the  officer  himself. 

§  703.     Registration  of  deeds  when  State  is  in  rebellion. 

— Where  a  person  is  acting  under  a  de  facto  government, 
if  it  is  of  paramount  force  in  the  county  within  which  he 
performs  the  duties  of  his  office,  his  official  acts,  notwith- 
standing that  such  government  is  unlawful  and  revolutionary, 
are  valid  and  binding,  if  not  done  for  the  purpose  of  assist- 
ing the  war  power  of  the  unlawful  government.  Hence,  the 
registration  of  a  deed  by  an  officer  who  continued  to  act  as 
such  after  the  State  had  passed  an  ordinance  of  secession, 
and  while  the  county  in  which"  he  exercised  his  functions  was 
under  the  military  power  of  the  confederate  government,  is 
a  valid  recordation.^  Chief  Justice  Waite,  without  attempt- 
ing to  give  any  exact  definitions  within  which  the  acts  of  the 
g-overnment  of  a  State  in  rebellion  should  be  treated  as  valid 
or  invalid,  observed,  upon  the  general  subject:  "It  may  be 
said,  perhaps,  with  sufficient  accuracy,  that  acts  necessary  to 
peace  and  good  order  among  citizens,  such,  for  example,  as 
acts  sanctioning  and  protecting  marriage  and   the   domestic 

3  Henning   v.    Fisher,   6   W.   Va.      W.  Va.  502,  98  Am.  Dec.  781 ;  Cal- 
238.     But   see  the   earlier   cases   in       fee  v.  Burgess,  3  W.  Va.  274. 
that   State   of   Brown   v.   Wylie,   2 


1300  THE    LAW    OF    DEEDS.  [CllAP.    XXII. 

relations  governing  the  course  of  descents,  regulating  the  con- 
veyance and  transfer  of  property,  real  and  personal,  and  pro- 
viding remedies  for  injuries  to  person  and  estate,  and  other 
similar  acts,  which  would  be  valid,  if  emanating  from  a  law- 
ful government,  must  be  regarded  in  general  as  valid  when 
proceeding  from  an  actual,  though  unlawful  government;  and 
that  acts  in  furtherance  or  support  of  rebellion  against  the 
United  States,  or  intended  to  defeat  the  just  rights  of  citi- 
zens, and  other  acts  of  like  nature,  must,  in  general,  be  re- 
garded as  invalid  and  void."  * 

§  704.  Payment  of  fees. — An  officer  is  not  required  to 
receive  a  deed,  or  to  permit  it  to  be  filed  in  his  office  for  reg- 
istration, until  all  fees  he  is  authorized  to  collect  have  been 
paid.  But  if  he  sees  proper  to  permit  a  deed  to  be  deposited 
with  him  without  the  payment  of  the  tax  upon  it,  he  must 
record  it,  and  must  look  for  the  payment  of  the  tax  to  the 
person  for  whom  he  records  the  deed.  By  receiving  the  deed 
for  record  without  objection,  it  is  presumed  that  he  dispenses 
with  the  previous  payment  of  the  tax,  and  the  person  deposit- 
ing the  instrument  has  a  right  to  assume  that  it  will  be  duly 
recorded.*  A  provision  in  a  statute  that  "no  deed  shall  be  ad- 
mitted to  record  until  the  tax  is  paid  thereon,"  is  merely  direc- 
tory. If  the  officer  records  the  deed  without  the  payment  of 
the  tax,  the  record  is  not  invalidated,  but  he  assumes  the  tax.® 

4  In  Texas  v.  White,  7  Wall.  700,  « Lucas  v.  Clafflin,  16  Vt.  269. 
IZZ,  19  L.  ed.  227,  240.  See,  also.  See,  also,  Hoffman  v.  Mackall,  5 
Harrisons  v.  Farmers'  Bank  of  Vir-  Ohio  St.  124,  64  Am.  Dec.  637. 
ginia,  6  W.  Va.  1 ;  Griffin  v.  Cun-  Where  the  register  refuses  to  rec- 
ningham,  20  Gratt.  31 ;  Sherfy  v.  ord  the  deed  until  his  fees  are  paid, 
Argenbright,  1  Heisk.  128,  2  Am.  the  leaving  of  the  deed  with  him 
Rep.  690;  Thorington  v.  Smith,  8  is  held  not  to  be  constructive  no- 
Wall.  1,  19  L.  od.  361.  tice:  Cunningham  v.  Peterson,  109 

5  Bussing  V.   Grain,  8  Mon.   593;  N.  C.  33, 
Ridley    v.    McGehoe,    2    Dev.    40; 

People  V.  Bristol,  35  Mich.  2a 


CHAP.    XXII.]  REGISTRATION    OF    DEEDS.  1301 

§  705.     Proof  of  time  at  which  deed  is  recorded. — The 

certificate  of  the  recorder  is  generally  regarded  as  conclusive 
proof  of  the  time  at  which  a  deed  is  deposited  for  record.  "It 
is  the  date  of  the  reception  and  record,  and  not  the  order 
in  which  the  entry  is  made,  that  is  to  be  relied  upon  as  giv- 
ing notice  of  priority.  The  record  is  the  instrument  of  no- 
tice to  subsequent  purchasers  of  the  state  of  the  title;  and  to 
permit  it  in  any  manner  to  be  affected  by  parol  or  extraneous 
evidence  would  not  only  destroy  its  value  for  that  purpose,  but 
would  convert  it  into  an  instrument  for  deception.  It  would 
be  dangerous  to  the  rights  of  all  subsequent  purchasers,  and 
contrary  to  the  established  rules  of  evidence,  to  admit  any 
of  the  testimony  offered  to  explain  or  vary  the  record."  ' 
But  the  certificate  is  not  conclusive  of  the  fact  that  the  in- 
strument has  been  properly  recorded,  but  only  of  the  time 
of  its  receipt  by  the  recording  officer.*  But  when  the  register 
has  failed  to  note  the  time  at  which  it  was  received  for  rec- 
ord, such  time  may  be  proved  by  parol  evidence.^ 

§  706.  Withdrawing  deed  filed  for  record. — If  a  deed 
is  withdrawn  from  the  office  of  the  recorder  before  it  is  actu- 

■?  Hatch  V.  Haskins,   17  Me.  391,  17  N.  Y.  469;  Dubose  v.  Young,  10 

395,  per  Shepley,  J.     See,  also,  Ful-  Ala.  365;   Worcester  Nat.  Bank  v. 

ler  V.  Cunningham,  105  Mass.  442 ;  Cheeney,  87  111.  602.    And  see  Jack- 

Bubose    V.    Young,    10    Ala.    365;  son  v.  Phillips,  9  Cow.  94.     Where 

Tracy  v.  Jenks,  15  Pick.  465 ;  Ames  the  entry  in  the  index-book  in  the 

V.    Phelps,    18   Pick.  314;   Wing   v.  recorder's  office  shows  upon  its  face 

Hall,  47  Vt.  182;  Bullock  v.  Wall-  that   it  was   not  made  at  the  time 

ingford,  55  N.  H.  619;  Edwards  v.  at  which  it  was   received,  the  pre- 

Barwise,  69  Tex.  84;  6  S.  W.  Rep.  sumption   as   to  the  correctness   of 

677.     But  see  Horsely  v.   Garth,  2  the  certificate  is  destroyed:  Hay  v. 

Gratt.  471,  44  Am.  Dec.  393,  where  Hill,  24  Wis.  235. 

it  was  held  that  parol  evidence  is  ^  Metts   v.   Bright,   4   Dev.   &   B. 

admissible    to    show    when    a    deed  173,  32  Am.  Dec.  683;  Cunningham 

was  recorded.  v.  Peterson,  109  N.  C.  33,  13  S.  E. 

8  Thorp  V.  Merrill,  21  Minn.  336;  714;  Boyce  v.  Stanton,  15  Lea,  346. 
New  York  Life  Ins.  Co.  v.  White, 


1302 


THE    LAW    OF    DEEDS. 


[cirAr.  xxn. 


ally  recorded,  its  priority  is  lost.*  A  person  executed  a  mort- 
gage and  filed  it  for  record  the  same  day.  He  afterward  ob- 
tained possession  of  it  before  it  was  actually  spread  upon 
the  records,  and,  while  it  was  out  of  the  recorder's  posses- 
sion, he  sold  the  premises  described  in  the  mortgage.  The 
purchaser  had  his  de^d  recorded,  and,  subsequently,  the  mort- 
gage was  returned  to  the  recorder's  office.  The  court  held 
that  the  deed  was  entitled  to  priority  if  the  purchaser  had 
paid  a  valuable  consideration.* 

§  707.  Constructive  notice. — But  the  purchaser  may 
have  sufficient  information  to  put  him  upon  inquiry,  and 
charge  him  with  constructive  notice.  Thus,  if  a  person,  when 
about  to  purchase  a  piece  of  property,  is  informed  by  the 
recorder  that  the  vendor  has  already  executed  a  deed  of  the 
same  property  to  another  person,  which  was  filed  for  record, 
but  was  withdrawn  before  being  recorded,  this  information  is 
sufficient  to  put  such  intending  purchaser  upon  inquiry.^  To 
constitute  notice  of  an  adverse  title  to  the  property,  it  is  not 


1  Hickman  v.  Perrin,  6  Cold.  135 ; 
Turman  v.  Bell,  54  Ark.  273,  26 
Am.  St.  Rep.  35;  Johnson  v.  Bor- 
den, 40  Vt.  567,  94  Am.  Dec.  436; 
Worcester  Nat.  Bank  v.  Cheeney, 
87  111.  602;  Glamorgan  v.  Lane,  9 
Mo.  446.  See,  where  liens  of  mort- 
gage have  not  been  lost,  though  in- 
struments withdrawn,  Swift  v. 
Hall,  23  Wis.  532;  Wilson  v.  Les- 
lie, 20  Ohio,  161 ;  Woodruff  v.  Phil- 
lips, 10  Mich.  500. 

2  Riser  v.  Heuston,  38  111.  252. 
Where  a  deed  of  trust  is  presented 
to  the  recorder,  and  is  indorsed, 
"filed  for  record,"  and  immediately 
afterward,  and  before  any  entry 
concerning  it  is  made,  is  withdrawn 
for  the  purpose  of  having  a  gov- 


ernment stamp  placed  upon  it,  and 
is  not  returned  for  a  month  or 
more  afterward,  the  first  filing  is 
not  sufficient  to  give  constructive 
notice  of  the  existence  of  the  deed: 
Worcester  Nat.  Bank  v.  Cheeney, 
87  111.  602.  See,  also,  Glamorgan 
v.  Lane,  9  Mo.  446.  While  a  mort- 
gage may  be  properly  filed  for  rec- 
ord, still  if  it  is  withdrawn  by  the 
grantee  or  his  agent,  and  while 
it  is  out  of  the  officer's  possession, 
the  property  is  purchased  by  an- 
other, who  has  no  notice  of  the 
mortgage  it  will  not  be  enforced 
against  the  innocent  purchaser: 
Webb  V.  Austin,  22  Ky.  L.  Rep. 
764,  58  S.  W.  808. 
3  Lawton  v.  Gordon,  37  Gal.  202. 


CHAP.    XXII.]  REGISTRATION    OF    DEEDS. 


1303 


essential  that  such  information  should  be  given  by  a  person 
interested  in  the  property.* 

§  708.     Deposit  subject  to  further  order. — If  a  convey- 
ance is  left  with  the  recording  officer  with  instructions  not 


*  Lawton   v.    Gordon,   supra.     In 
that  case   Mr.  Justice   Rhodes,  de- 
livering the   opinion   of   the   court, 
said:       "The     purchaser     received 
definite  and  certain  information  of 
the  existence  of   Reed's  deed,  and 
this    information    was    worthy    of 
credit,   for  it  came   from  one  who 
had  seen  the  deed  and  filed  it  for 
record.       Would     any     reasonable 
man,    who    was    contemplating    the 
purchase    of    property,    after    hav- 
ing     received      that      information, 
doubt  as  to  his  duty  to  pursue  the 
inquiry,    in   order   to    ascertain   the 
true  condition  of  the  title?  He  cer- 
tainly would  not  hesitate  unless  he 
was  laboring  under  the  mistake  of 
law,  that   a   recorded   deed   always 
took  precedence   of   an   unrecorded 
deed.     The   information    itself   be- 
ing sufficient  in  all  respects  to  put 
the  purchaser  upon  his  inquiry,  the 
only  remaining  question  is,  whether 
the  information  must  come  from  a 
person  interested   in  the   property? 
Upon    this    question    the    plaintiff 
cites  Leading  Cases  in  Equity,  notes 
to  Le  Neve  v.  Le  Neve,  in  which 
the    writer    says:      'And    this    rule 
has  been  stated   so   positively,   and 
in    such    unqualified    terms,    under 
the  sanction  of  names  of  great  au- 
thority, as  to  lead  to  the  inference 
that  notice  cannot  be  binding  unless 
it  proceed  from  a  person  interested 
in  the  property  and  in  the  course 
of  the  treaty  for  its  purchase.'   The 


rule   alluded  to   was,  that  the   no- 
tice must  be  certain;  and  the  rule, 
it  was  said,  applied  emphatically  to 
all  statements  which  do  not  proceed 
directly  from  parties  in  interest  or 
their    agents.      'But    this    doctrine,' 
he  continues,   'must  be   understood 
as  applying  to  notice  in  its  limited 
sense,  as  distinguished  from  knowl- 
edge or  such  information  as  is  sub- 
stantially equivalent  to  knowledge. 
It   is   evident  that,  if   it  be  shown 
that  the  purchaser  knew  of  the  ex- 
istence of  an  adverse  claim  or  title, 
it  cannot  be  necessary  to  prove  no- 
tice, and  that  it  must  be  immaterial 
whether    his    knowledge    was    ob- 
tained   from   the   parties   interested 
or   from  third  persons.     The  true 
rule,  therefore,  with  regard  to  the 
statements  of  strangers  and  of  par- 
ties  in  interest,  would  seem  to  be 
that   the   general   statement   of   the 
existence    of    an    adverse    title,    to 
which    no    weight    would    be    due 
when  proceeding   from  a  stranger, 
will   be  notice   when   coming   from 
the  party  interested;  and  not  that 
distinct    and    positive    information 
can  be  disregarded  because  the  per- 
son   who   gives   it   has   no    interest 
in  the  property  to  which  it  relates. 
A    purchaser    cannot    go    on    with 
safety  to  complete  a  purchase  after 
learning    the    existence    of    a   prior 
conveyance  of  the  property  by  the 
vendor,   from   a  person  present   as 
a  witness,  or  even  as  a  bystander, 


1304  THE   LAW    OF   DEEDS.  [CHAP.    XXTL 

to  record  it  until  he  is  so  directed,  it  should  not  be  recorded 
until  such  directions  are  given.  This  may  be  illustrated  by 
a  case  where  a  mortgage  was  given  to  the  recorder  with  di- 
rections not  to  place  it  on  record  until  he  received  further 
directions,  and  the  recorder's  clerk  recorded  it  without  such 
directions  having  been  received.  It  was  held  that  under  these 
circumstances  the  placing  of  the  mortgage  upon  the  record- 
book  was  not  a  registration  which  entitled  it  to  priority  over 
conveyances  and  encumbrances  subsequently  filed  for  record. 
If  such  directions  were  received,  the  instrument  should  be  re- 
corded as  of  that  time,  and  not  as  of  the  time  when  it  was 
left  with  the  recorder."  And  still  more  clear  is  the  proposi- 
tion that  a  deed  left  with  the  recorder  with  such  instructions 
does  not,  before  registration,  afford  constructive  notice  of  its 
contents  as  though  recorded.^ 

§  709.  Priority  between  deeds  recorded  on  the  same 
day. — Generally,  of  two  deeds,  the  one  first  filed  for  rec- 
ord is  given  the  preference.  Two  deeds  of  trust  embracing 
the  same  property  were  delivered  to  the  recorder  on  the  same 
day  by  the  same  person,  one  after  the  other,  and  they  were  re- 
corded in  the  order  in  which  they  were  delivered.  It  was 
held  that  where  nothing  appeared  that  one  of  the  trusts 
deeds  was  entitled  to  priority  over  the  other  as  to  the 
time    for   filing,   the   deed   first    recorded   took   precedence.'^ 

at   the    execution    of    the    deed   by  ^  Haworth  v.  Taylor,  108  111.  275 ; 

which  it  was  conveyed.    And  it  can  Davis  v.  Whitaker,   114  N.  C.  279, 

hardly  be  doubted  that  the  same  re-  41  Am.  St.  Rep.  793 ;  19  S.  E.  Rep. 

suit    will    follow    from    the    state-  699;   Moore  v.   Ragland,  74  N.   C. 

ment  of  any  fact  within  the  knowl-  343.     If  instructions  are  given  not 

edge   of   the   party  who   stated   it,  to    record    the    deed    until    further 

which    shows    that    the    title    pur-  notice,    the    rule    that    it    shall    be 

chased   is   subject   to   the   legal    or  considered   as   recorded   when   filed 

equitable  claims  of  other  persons.' "  does  not  apply :  Turberville  v.  Fow- 

SBrigham    v.    Brown,    44    Mich.  ler,  101  Tenn.  88,  46  S.  W.  577. 

59.      See,    also,    Horsley    v.    Garth,  '  Brookfield   v.    Goodrich,   32    III. 

2  GratL  471,  44  Am.  Dec.  393.  363.     Said   Mr.   Chief   Justice   Ca- 


CHAP.    XXII.]  REGISTRATION    OF   DEEDS. 


1305 


But  where  two  deeds  were  so  defectively  acknowledged  that 
neither  was  entitled  to  registration,  it  was  held  that  the  effect 
of  a  curative  act  passed  subsequently  was  to  record  both  deeds 
at  the  same  instant  of  time,  and  hence  left  them  to  operate  as 
at  common  law,  by  which  the  deed  first  executed  would  pass 
the  title  to  the  lahd  described  in  it.'  It  may  be  shown  by  parol 
evidence  which  of  two  mortgages,  signed,  acknowledged,  and 
deposited  for  record  on  the  same  day,  was  first  filed  for  rec- 
ord.' 

§  710.  Facts  of  which  the  record  gives  notice. — When 
a  conveyance  has  been  properly  recorded,  the  record  is  con- 
structive notice  of  its  contents,  and  of  all  interests,  legal  and 
equitable,  created  by  its  terms.^     A  sold  land  to  B,  and  exe- 


ton:  "In  the  absence  of  proof  to 
the  contrary,  the  presumption  is 
that  the  deeds  were  filed  for  record 
in  the  order  in  which  they  were 
handed  to  the  recorder  as  the  law 
made  it  his  duty  to  do,  and  upon 
this  presumption  the  purchasers  of 
the  several  classes  of  bonds  secured 
by  these  deeds  had  a  right  to  act. 
The  trustee  in  these  cases  is  not 
the  true  purchaser,  and  to  be  pro- 
tected by  the  recording  laws,  but 
the  purchasers  of  the  bonds  are 
the  true  purchasers.  It  was  their 
right  and  their  duty  to  examine  the 
record  of  these  deeds,  and  there 
they  found  that  the  deed  securing 
the  one  thousand  dollar  bonds  was 
first  recorded,  and  by  our  record- 
ing laws  was  entitled  to  a  prefer- 
ence, and  upon  this  law  they  could 
securely  repose  in  purchasing  this 
class  of  bonds,  knowing  that  the 
law  gave  them  a  preference;  and 
so,  too,  the  purchasers  of  the  other 
bonds  were  in  duty  bound  to  ex- 
amine  the   same   record   by   which 


they  were  told  that  these  bon3s 
were  secured  by  a  second  lien  upon 
the  premises,  and  that  they  must  be 
postponed  until  all  the  bonds  se- 
cured by  the  deed  first  recorded 
were  all  paid.  If  they  took  the  as- 
surance of  the  seller  that  these 
bonds  were  secured  by  a  first  lien, 
that  was  their  own  folly.  To  make 
good  that  assurance  would  be  a 
fraud  upon  the  purchasers  of  the 
first  bonds,  who  had  a  right  to  rely 
upon  the  law  and  the  record,  which 
declare  that  they  are  entitled  to 
a   first  lien." 

8  Deininger  v.  McConnel,  41  111. 
228. 

9  Spaulding  v.  Scanland,  6  Mon. 
B.  353.  The  court  will  take  notice 
of  the  fractional  parts  of  a  day : 
Lemon  v.  Staats,  1  Cowen,  592; 
Boone  v.  Telles,  2  Bradw.  (111.) 
539. 

1  Grandin  v.  Anderson,  15  Ohio 
St.  286;  Humphreys  v.  Newman, 
51  Me.  40;  Bancroft  v.  Consen,  13 
Allen,  50;   George  v.  Kent,  7  Al- 


1306  THE   LAW   OF   DEEDS.  [CIIAP.    XXll. 

cuted  a  bond  for  a  conveyance  upon  payment  of  the  purchase 
money ;  in  the  same  manner  B  sold  a  portion  of  the  land  to  C, 
and  subsequently  sold  the  residue  at  the  same  time  to  two  per- 
sons, giving  to  each  a  bond  for  a  title.  Afterward  B  obtained 
a  deed  for  the  whole  tract  from  A,  and  for  the  purpose  of 
securing  a  part  of  the  purchase  money,  executed  at  the  same 
time  a  mortgage  upon  that  portion  of  the  premises  which  had 
been  'sold  to  one  of  the  two  persons  purchasing  last,  such  pur- 
chaser being  then  indebted  on  his  purchase  in  an  amount  ex- 
ceeding the  mortgage  debt.  The  mortgage  was  duly  recorded, 
and  the  purchasers  of  the  unencumbered  portion  of  the  land 
paid  the  several  amounts  due  by  them,  and  received  deeds  from 
B,  and  several  years  afterward  the  purchaser  of  the  mortgaged 
premises,  who  had  no  actual  notice  of  the  mortgage,  paid  the 
sum  remaining  due  upon  his  agreement,  and  received  also  a 
deed  from  B.  A  suit  was  brought  to  foreclose  the  mortgage, 
and  the  court  held  that  the  grantee  of  the  mortgaged  premises 
held  the  same  in  subjection  to  the  full  encumbrance  of  the 
mortgage,  and  that  there  was  no  vendor's  lien  which  would 
render  any  other  portion  of  the  land  liable  to  contribute  to 
the  discharge  of  the  debt  secured  by  the  mortgage.^     Where 

len,  16;  Orvis  v.  Newell,  17  Conn.  McCabe  v.  Grey,  20  Cal.  509;  Mon- 

97 ;    Bolles    v.    Chauncey,    8    Conn.  tefiore  v.  Browne,  7  H.  L.  Cas.  341 ; 

389;    Clabaugh    v.    Byerly,    7    Gill,  Parkest  v.  Alexander,  1  Johns.  Ch. 

354,    48    Am.    Dec.    575;    Bush    v.  394;  Leach  v.  Beattie,  23  Vt.   195. 

Golden,    17    Conn.    594 ;    Thomson  And  see  Johnson  v.  Stagg,  2  Johns. 

V.  Wilcox,  7  Lans.  376;   Peters  v.  510;  Doyle  v.  Stevens,  4  Mich.  87; 

Goodrich,   3    Conn.    146;    Harrison  Tripe  v.  Marcy,  39  N.  H.  439;  Lei- 

V.    Cachelin,   23    Mo.    117;    Kyle   v.  by  v.  Wolf,  10  Ohio,  83.     The  rec- 

Thompson,  11  Ohio  St.  616;  Buch-  ord  of  a  deed  showing  on  its  face 

anan  v.  International  Bank,  78  111.  that  it  was  properly  executed  and 

500;  Souder  v.  Morrow,  33  Pa.  St.  acknowledged    is    evidence    that    it 

83;   Hetherington  v.   Clark,  30  Pa.  was  in  fact  executed  as  it  purports 

St.  393;  Barbour  v.  Nichols,  3  R.  I.  to    have   been,    notwithstanding   by 

187;   Youngs  v.   Wilson,  27   N.   Y.  reason  of  extrinsic  facts  it  may  be 

351;    Dimon    v.    Dunn,    15    N.    Y.  void  or  voidable:  Clague  v.  Wash- 

498;    Ogden    v.    Walters,    12    Kan.  burn,  42  Minn.  371. 
282;  Dennis  v.  Burritt,  6  Cal.  670;  2  Qrandin  v.   Anderson,   IS   Ohio 

Mesick  V.  Sunderland,  6  Cal.  297;  St.  286. 


CHAP,    XXII.]  REGISTRATION    OF    DEEDS.  1307 

the  whole  of  a  lot  of  land  is  subject  to  a  mortgage,  one  who 
takes  a  subsequent  mortgage,  with  notice  of  a  prior  unrecord- 
ed deed  of  warranty  of  an  adjoining  portion  of  the  same  lot 
from  the  mortgagor  to  a  third  person,  cannot  enforce  con- 
tribution from  the  latter  toward  redeeming  the  mortgage ;  and 
a  direct  reference  in  the  mortgage  to  such  third  person  as 
owning  the  adjoining  land  is  equivalent  to  notice.^  A  pur- 
chaser received  a  deed  for  the  undivided  one-half  of  a  church 
and  lot,  "together  with  all  and  singular  the  rights,  liberties, 
privileges,  hereditaments,  and  appurtenances  thereunto  belong- 
ing, in  as  full  and  ample  a  manner,  and  with  all  the  same  rights 
and  conditions,  authorities  and  agreements,  with  which  Hugh 
Bellas,  and  Esther,  his  wife  [the  vendors],  now  hold  the  said 
premises  as  regards  all  or  any  assemblies  for  divine  worship." 
Subsequently  the  vendee  purchased  the  other  half  of  the  prem- 
ises from  the  same  vendor.  It  was  held  in  an  action  of  cov- 
enant to  recover  the  purchase  money,  in  which  the  vendee 
claimed  there  was  a  defect  of  title,  that  the  first  deed  gave 
legal  notice  of  a  valid  subsisting  right  in  an  assembly  for  di- 
vine worship.*  If  the  conveyances  under  which  a  grantee 
holds  refers  to  previous  deeds  containing  restrictions  as  to  the 
use  of  the  property,  and  those  deeds  are  recorded,  he  will,  al- 
though he  may  not  have  express  notice  of  these  restrictions, 
be  deemed  in  law  to  have  such  notice,  and  will  be  bound  in 
the  same  manner  as  though  the  restrictions  were  contained  in 
the  deed  made  to  him.' 

8  George  v.  Kent,  7  Allen,  16.  nated  the  Bartlett  plat.  There  is 
*  Bellas  V.  Lloyd,  2  Watts,  401.  no  question  of  the  ability  of  the 
5  Gilbert  v.  Peteler,  38  Barb.  488.  plaintiff  to  convey  a  good  title  to 
The  facts  of  the  case  cited  perti-  the  former  of  these.  The  two  par- 
nent  to  this  point  are  thus  stated  eels  were  contracted  to  be  sold  to- 
by the  court:  "The  premises  to  gether,  however,  and  as  one  piece 
which  this  controversy  relates  con-  of  land.  They  are  not  distinguished 
sists  of  two  parcels;  one,  the  west-  in  the  contract,  but  Gilbert  agrees 
erly  portion,  designated  in  the  re-  to  sell  and  convey  to  Peteler  lands 
port  of  the  referees  the  hotel  plat;  in  New  Brighton  lying  between  cer- 
the   other,   or   easterly   part,    desig-  tain  streets,  and  ipxluding  all  these 


1308 


THE    LAW    OF    DEEDS. 


[chap.  XXIL 


§  710a.  Presumption  of  knowledge  of  rights  of  others. 
— It  is  presumed  that  a  purchaser  has  examined  every 
deed  and  instrument  affecting  the  title. 


He  is  charged  with 


premises.  The  plaintiff's  title  to 
the  whole  property  is  derived  from 
one  Fox.  Fox  obtained  his  title  by 
two  conveyances.  One  was  from 
a  person  named  Davis,  dated  Oc- 
tober 14,  1846,  of  the  hotel  plat. 
This  was  an  absolute  deed,  and  con- 
veyed a  perfect  and  unqualified  ti- 
tle. This  Davis  was  originally  the 
owner  of  the  whole,  and  his  title 
was  absolute  in  fee.  But  on  the 
14th  of  September,  1846,  before  his 
deed  to  Fox,  Davis  had  conveyed 
what  was  afterward  known  as  the 
Bartlett  plat  to  Edwin  Bartlett. 
The  deed  from  Davis  to  Bartlett 
was  absolute,  like  the  other,  and 
contained  no  restriction.  But  it 
appears  that  Bartlett  took  this  title 
at  the  request  of  one  John  C. 
Creen,  who  was  the  owner  of  cer- 
tain adjoining  premises  which  he 
desired  to  protect.  Green  advanced 
the  purchase  money,  and  Bartlett 
held  the  title  for  him,  and  subject 
to  his  direction,  although  there  was 
no  written  evidence  of  the  arrange- 
ment. On  the  30th  of  October, 
1846,  Bartlett,  at  Green's  request, 
and  by  his  direction,  conveyed  the 
strip  of  which  he  thus  held  the  ti- 
tle to  Fox,  who  was  already  by 
Davis'  deed,  the  owner  of  the  resi- 
due. This  deed  of  Bartlett  con- 
tained a  provision  in  the  form  of 
a  covenant  by  the  party  of  the 
second  part  (Fox)  his  heirs,  execu- 
tors, administrators,  and  assigns, 
to  and  with  Bartlett,  his  heirs  and 
assigns,  not  to  erect  or  permit  to  be 
erected  at  any  time  thereafter,  on 


any  part  of  the  premises,  any 
building  whereby  the  view  or  pros- 
pect of  the  bay  from  the  dwelling- 
house  of  John  C.  Green  could  be 
obstructed  or  impaired  unless 
Green  should  first  destroy  his  own 
prospect  by  building  on  his  own 
lot.  The  deed  added  a  clause  of 
forfeiture  in  favor  of  Green  in  the 
event  of  a  breach  of  this  covenant. 
It  was  not  signed  or  executed  by 
Fox.  Fox  afterward  conveyed  to 
Theodosius  O.  Fowler  subject  to 
this  covenant,  and  to  an  express 
stipulation  by  Fowler  to  observe  it. 
Fowler  conveyed  to  Victor  Forge- 
aud,  subject  to  the  same  covenant 
and  stipulation.  Forgeaud  obtained 
also  a  release  and  quitclaim  of  title 
from  Green,  but  with  a  clause  pre- 
serving the  restriction  as  to  build- 
ing etc.  At  or  about  this  time  there 
was  erected  a  stone  cottage  upon 
the  Bartlett  lot,  and  Green  after- 
ward, by  a  deed  reciting  that  he 
was  the  person  for  whose  benefit 
the  restriction  was  imposed,  re- 
leased Forgeaud  from  the  restric- 
tion as  to  the  land  occupied  by 
this  cottage,  but  with  a  proviso  that 
this  should  not  remove  the  restric- 
tion or  impair  his  rights  as  to  the 
residue  of  the  premises.  After  this 
Forgeaud  conveyed  to  August  Bel- 
mont, by  a  deed  containing  an  ex- 
press covenant  on  the  part  of  Bel- 
mont to  abide  by  the  restrictions  in 
the  deed  to  Forgeaud ;  this  latter 
deed,  however,  like  the  others,  not 
being  signed  by  the  grantee.  Bel- 
mont conveyed  to  Vanderbilt  by  a 


CHAP.    XXII.]  REGISTRATION    OF   DEEDS.  1309 

notice  of  every  fact  shown  by  the  records,  and  is  presumed  to 
know  every  other  fact  which  an  examination  suggested  by  the 
records  would  have  disclosed.  If  a  mortgagee  holding  the 
mortgage  in  trust  for  another,  releases  it  before  it  becomes 
due,  in  violation  of  the  terms  of  the  trust,  subsequent  purchas- 
ers are  still  bound  by  the  mortgage,  because  they  are  deemed 
to  know  that  the  trustee  had  no  such  authority.^  Where  a 
deed  from  a  corporation,  under  which  a  purchaser  claims  title, 
shows  on  its  face  that  it  was  made  in  consideration  of  real  for 
personal  property,  and  the  corporation  was  not  authorized  by 
its  charter  to  convey  lands  for  a  consideration  of  this  kind, 
such  purchaser  is  not  considered  an  innocent  one,  the  recitals 
in  the  deed  affecting  all  persons  claiming  under  it  with  notice 
that  the  act  was  in  excess  of  the  power  of  the  corporation."' 
Notice  is  given  to  a  purchaser  of  recitals  in  a  deed  in  his 
grantor's  chain  of  title,  suggesting  a  trust  relation.^  As  an 
indorsement  on  the  deed  of  the  names  of  the  grantor  and 
grantee  is  not  a  part  of  the  deed,  the  filing  of  the  deed  for 
record  does  not  give  constructive  notice  of  a  conveyance  by 
the  persons  whose  names  are  indorsed  on  the  back  of  the  in- 
deed in  similar  terms.  From  Van-  Sigourney  v.  Munn,  7  Conn.  324; 
derbilt  the  title  passed  to  the  plain-  Baker  v.  Mather,  25  Mich.  51 ; 
tiff  by  various  mesne  conveyances,  Cambridge  Valley  Bank  v.  Delano, 
none  of  v^rhich  contained  any  ex-  48  N.  Y.  326;  Anderson  v.  Lay- 
press  covenant  or  restriction,  but  ton,  3  Bush,  87.  And  see  Bazemore 
all  of  which  referred  to  the  deed  v.  Davis,  55  Ga.  504;  Bell  v.  Twi- 
from  Vanderbilt  to  his  next  gran-  light,  18  N.  H.  159,  45  Am.  Dec. 
tee,  which  latter  deed  referred  to  367;  Sioux  City  etc.  R.  R.  Co.  v. 
the  deed  from  Belmont  to  Vander-  Singer,  49  Minn.  301,  15  L.R.A. 
bilt,  which  contained  the  restric-  751,  32  Am.  St.  Rep.  554. 
tion."     The  court  accordingly,  held  ^  McPherson   v.    Rollins,    107    N. 

that  plaintiff  must  be  charged  with      Y.  316,  1  Am.  St.  Rep.  826. 
notice   of    such    restriction   and    its  "^  Franco-Texan  Land  Co.  v.  Mc- 

consequences.     See,  also,   White  v.       Cormick,  85  Tex.  416,  34  Am.   St. 
Foster,    102   Mass.  375;   Jacques  v.       Rep.  815. 

Short,  20  Barb.  269;  Acer  v.  West-  8  Knowles    v.    Williams,   58    Kan, 

cott.  46  N.  Y.  384,  7  Am.  Rep.  355 ;      221,  48  Pac.  865. 
Hamilton   v.   Nutt,   34   Conn.   501 ; 


1310  THE    LAW    OF    DEEDS.  [CHAP.    XXII. 

strument  but. who  are  not  parties  to  it.®  Where  an  attorney 
supposing  that  a  certain  person  was  to  execute  a  deed  of  trust, 
wrote  in  his  name  as  that  of  the  grantor,  but  it  was  signed 
and  acknowledged  by  another,  the  record  of  the  deed  does 
not  give  notice  to  a  subsequent  grantee  that  it  was  the  deed 
of  the  person  whose  signature  was  attached.*  A  person  will 
be  held  to  have  purchased  with  notice  when  he  finds  the  deed 
of  a  common  grantor,  valid  on  its  face  although  he  may  not 
find  of  record  any  property  to  which  it  applies.  He  should 
inquire  outside  of  the  record  and  if  he  fails  to  make  such  a 
search,  he  will  be  bound,  if  it  appears  subsequently  that  the 
deed  affects  the  property  which  he  has  purchased.^ 

§  711.  Notice  of  unrecorded  deed  from  notice  of  pow- 
er of  sale. — Where  a  trust  deed  or  a  mortgage  with  a 
power  of  sale  is  recorded,  subsequent  purchasers  are  compelled 
to  inquire  if  any  sale  has  been  made  under  the  power.  If  a 
sale  has  been  made  by  virtue  of  the  power,  although  the  deed 
has  not  been  recorded,  a  subsequent  purchaser  from  the  mort- 
gagor does  not  acquire  the  estate.  The  equity  of  redemption 
is  cut  off  by  the  sale,  notwithstanding  the  deed  may  not  be 

9  Gibson   v.    Clark,    132   Ala.   370,  Livingstone  v.   Murphy,    187   Mass. 

31  So.  472.  315,   72   N.    E.    1012,    105    Am.    St. 

1  Henry  Marx  &  Sons  V.  Jordan,  Rep.  400;  Fritz  v.  Ramspott,  1^ 
84  Miss.  334,  36  So.  386,  105  Am.  Minn.  489,  79  N.  W.  520;  Wait  v. 
St.  Rep.  457.  Baldwin,  60   Mich.  622,  27   N.   W. 

2  Sengfelder  v.  Hill,  21  Wash.  697,  1  Am.  St.  Rep.  551 ;  Potter  v. 
371,  58  Pac.  250.  See,  also,  as  to  Sachs,  61  N.  .Y.  Siipp.  426,  45  App. 
facts  of  which  records  give  notice:  Div.  454;  White  v.  McGregor,  92 
Scherer  v.  Ingerman,  110  Ind.  428,  Tex.  556,  SO  S.  W.  564,  71  Am. 
11  N.  E.  8;  Talcott  v.  Noel,  107  St.  Rep.  875;  McCoy  v.  Cunning- 
Iowa,  470,  78  N.  W.  39;  Lockhart  ham,  27  Tex.  Civ.  App.  476,  65 
v.  Vandyke,  97  Va.  356,  33  S.  E.  S.  W.  1084;  Smith  v.  Farmers  Loan 
613 ;  San  Augustine  County  v.  &  Trust  Co.,  21  Tex.  Civ.  App.  170, 
Madden,  39  Tex.  Civ.  App.  257,  87  51  S.  W.  515;  Passumpsic  Sav. 
S.  W.  1056;  Fisher  v.  Bush,  133  Bank  v.  Buck,  71  Vt.  190,  44  Atl. 
Ind.  315,  32  N.  E.  924;  Holmes  v.  93. 

Newman,  68  Kan.  418,  75  Pac.  501 ; 


CHAP.    XXII.]  REGISTRATION    OF   DEEDS.  1311 

recorded.'  'The  recording  of  the  trust  deed  gave  notice  of 
its  existence  to  subsequent  claimants  of  the  equity  of  redemp- 
tion, and  pointed  out  the  source  of  information  of  what  might 
be  done  in  pursuance  of  the  deed,  and  they  were  bound  to  take 
notice  of  the  proceedings  thereunder."  *  Where  the  provi- 
sions of  a  mortgage  or  trust  deed  require  for  their  execution 
that  the  trustees  should  have  an  estate  in  fee  simple,  and  such 
mortgage  or  trust  deed  has  been  recorded  in  full,  the  record, 
though  words  of  inheritance  have  been  inadvertently  omitted 
from  the  instrument,  is  notice  that  it  was  intended  to  pass  the 
fee.' 

§  712.  Record  is  not  notice  to  prior  parties. — The  rule 
to  be  deduced  from  the  authorities  is,  that  only  those  whose 
duty  it  is  to  search  for  a  deed  are  charged  with  notice  by  its 
record.  The  expression  is  frequently  used  that  the  record  of 
a  deed  is  a  constructive  notice  "to  all  the  world."  But  Mr. 
Justice  Sharswood  very  justly  says  that  this  assertion  is  "too 
broad  and  unqualified  an  enunciation  of  the  doctrine.  It  is 
constructive  notice  only  to  those  who  are  bound  to  search  for 
it;  thus  subsequent  purchasers  and  mortgagees,  and  perhaps 
all  others  who  deal  with  or  on  the  credit  of  the  title,  in  the  line 
of  which  the  recorded  deed  belongs.  But  strangers  to  the  title 
are  in  no  way  affected  by  it."  ®  Hence,  a  purchaser  at  a  sher- 
iff's sale,  who  does  not  claim  under  a  deed  made  between  third 
persons,  is  not  affected  with  notice  by  the  registration  of  such 
deed.''  "If  conveyances  from  one  stranger  to  another  would 
be  notice  to  all  the  v/orld,  miserable  would  be  the  situation  of 
the  purchaser.     The  registering  act  would  afford  him  no  pro- 

'Heaton  v.   Prather,  84  111.  330.  27  N.  Y.  351;  Hickman  v.  Perrin, 

4Farrar  v.  Payne,  11  111.  82,  88,  6  Coldw.    135;  Bright  v.  Buckman, 

per  Sheldon,  J.  39  Fed.  Rep.  243. 

6  Randolph  v.  N.  J.  West  Line  R.  ^  ]\ianl  v.   Rider,  59   Pa.   St.    167, 

R.    Co.,   28   M.   J.   Eq.    (1    Stewt.),  171. 

49.     And  see,  also,  Dimon  v.  Dunn,  '  Keller    v.    Nutz,    5    Scrg.    &    R. 

15   N.  Y.  498;   Youngs  v.  Wilson,  245. 


1312 


THE    LAW    OF    DEEDS. 


[chap.    XXII. 


tection  because  it  would  give  him  no  notice."  •  If  a  mort- 
gage of  land  is  executed,  and  a  right  of  way  is  reserved  in  a 
deed  of  the  same  land  made  subsequently,  the  right  is  held 
subject  to  the  title  of  the  mortgagee.  It  is  destroyed  by  a  sale 
under  the  mortgage.^  "The  whole  object  of  the  recording 
acts  is  to  protect  subsequent  purchasers  and  encumbrances 
against  previous  deeds,  mortgages,  etc.,  which  are  not  record- 
ed, and  to  deprive  the  holder  of  the  prior  unregistered  convey- 
ance or  mortgage  of  the  right  which  his  priority  would  have 
given  him  at  the  common  law.  The  recording  of  a  deed  or 
mortgage,  therefore,  is  constructive  notice  only  to  those  who 
have  subsequently  acquired  some  interest  or  right  in  the  prop- 
erty under  the  grantor  or  mortgagor."  '  The  actual  posses- 
sion of  land  by  a  puchaser  holding  a  bond  for  a  deed,  is  notice 
to  all  of  his  rights.  The  recording  of  a  subsequent  deed  or 
mortgage  affords  no  notice  whatever  to  such  prior  purchaser. 
If  he  has  no  actual  notice  of  a  subsequent  conveyance,  he  may, 
without  incurring  any  liability  to  a  subsequent  vendee  or  mort- 
gagee, make  the  payment  agreed  upon  to  his  vendor.^  Bona 
Me  purchasers  for  value  are  not  affected  by  the  record  of  deeds 


8  Duncan,  J.,  in   Keller  v.   Nutz, 
supra. 

9  King  V.  McCully,  38  Pa.  St.  76. 
1  Chancellor   Walworth    in    Stuy- 

vesant  v.  Hall,  2  Barb.  Ch.  151,  158. 
See,  also,  James  v.  Brown,  11  Mich. 
25 ;  Straight  v.  Harris,  14  Wis.  509 ; 
Deuster  v.  McCamus,  14  Wis.  307; 
Birnie  v.  Main,  29  Ark.  591;  Kyle 
V.  Thompson,  11  Ohio  St.  616; 
Howard  Ins.  Co.  v.  Halsey,  8  N.  Y. 
271,  59  Am.  Dec.  478;  Doolittle  v. 
Cook,  75  111.  354;  Hoy  v.  Bram- 
hall,  19  N.  J.  Eq.  563;  Hill  v.  Mc- 
Carter,  27  N.  J.  Eq.  41;  Blair  v. 
Ward,  2  Stockt.  Ch.  126;  Halstead 
V.  Bank  of  Kentucky,  4  Marsh.  J.  J. 
558;  Dennis  v.  Burritt,  6  CaL  670; 


Taylor  v.  Maris,  5  Rawle,  51 ;  Igle- 
hart  V.  Crane,  42  111.  261 ;  George  v. 
Wood,   9  Allen,  80,  85   Am.   Dec 
741 ;  Ward's  Ex'r  v.  Hague,  25  N 
J.  Eq.  397 ;  McCabe  v.  Grey,  20  Cal 
509;  Leiby  v.  Wolf,   10  Ohio,  83 
Cooper    V.    Bigly,    13    Mich.    463 
King   V.    McVickar,    3    Sand.    392 
West   brook   v.    Gleason,    14    Hun 
245 ;  Truscott  v.  King,  6  Barb.  346 
Raynor  v.  Wilson,  6  Hill,  469;  Van 
Orden  v.  Johnson,  14  N.  J.  Eq.  376, 
82  Am.  Dec.  254;  Wheelwright  v. 
De  Peyster,  4  Edw.  Ch.  232;  Tar- 
bell  V.  West,  86  N.  Y.  280 ;  Stuyves- 
ant  V.  Hone,  1  Sand.  Ch.  419. 
2  Doolittle  V.  Cook,  75  lU.  354 


CHAP,    XXII.]  REGISTRATION    OF   DEEDS.  1313 

not  in  the  chain  of  title.'  It  is  not  proper  to  receive  in  evi- 
dence as  constructive  notice  to  a  person  claiming  in  the  record 
chain  of  title,  the  records  of  a  probate  court  showing  a  claim 
of  title  made  by  a  stranger  to  the  record  chain  of  title.*  Gen- 
erally the  question  of  notice  between  claimants  under  distinct 
and  hostile  titles  is  immaterial,  as  the  constructive  notice  given 
by  the  record  is  effectual  only  among  those  who  claim  rights 
under  the  same  title.^  Notice  is  not  given  of  an  outstanding 
equity  by  the  recordation  of  a  mortgage  executed  by  another 
than  the  legal  owner  of  the  land.^  If,  however,  the  grantor  is 
in  possession,  such  fact  will  give  constructive  notice  of  a  prior 
deed  made  by  him  of  the  mineral  rights  in  the  land,  although 
be  never  had  the  legal  title  to  the  land.''^  The  record  of  a 
deed  is  not  notice  to  the  holder  of  antecedent  rights  notwith- 
standing the  fact  that  in  pursuance  of  the  statute  the  prior 
deed  may  defeat  such  antecedent  right' 

§  713.  Record  is  notice  only  to  purchasers  under  same 
grantor. — Courts,  frequently,  in  cases  where  it  is  not 
necessaiy  that  they  should  speak  with  precision  of  what  per- 
sons are  embraced  under  the  category  of  subsequent  purchas- 
ers, declare  in  somewhat  comprehensive  terms  that  subsequent 
purchasers  are  bound  by  all  the  information  tliey  might  ob- 

'  Meacham   v.   Blaess,   141   Mich.  in  the  chain  of  title  does  not  im- 

258,  104  N.  W.  579;  Thompson  v.  part  notice,  see:    Rozell  v.  Qiicago 

Rust,  32  Tex.  Civ.  App.  441,  74  S.  Mill  &  Lumber  Co.  76  Ark.  525,  89 

W.  924;   Boynton  v.   Haggart.    120  S.  W.  469;  Becker  v.  Stroeher,  167 

Fed.    819,    57    C    C.    A.    301  Mo.  306,  66  S.  W.  1083;  Advance 

*Prest  V.  Black,  63  Kan.  682,  66  Thresher  Co.  v.  Esteb,  41  Or.  469, 

Pac.   1017.  69   Pac.  447;   White  v.   McGregor, 

5  Webb  V.  Ritter,  60  W.  Va.  193,  92  Tex.  556,  50  S.  W.  564,  71  Am. 

64  S.  E.  484.  St.  Rep.  875;   Fullenwider  v.   Fer- 

^  Pearce  v.   Smith,   126  Ala.   116,  guson,   30  Tex.   Civ.   App.    156,   70 

28  So.  37.  S.  W.  222. 

'  Eversole  v.  Virginia  Iron,  Coal  ^  Bridgewater  Roller  Mills  Co.  v. 

&  Coke  Co.,  122  Ky.  649,  92  S.  W.  Strough,  98  Va.  721,  11  S.  E.  290. 
593.    That  the  record  of  deed  not 
Deeds,  Vol.  H.— 83 


1314 


THE    LAW    OF    DEEDS. 


[chap.    XXII. 


tain  from  an  examination  of  the  records.  But  the  subsequent 
purchasers  of  whom  the  law  speaks  are  those  claiming  title 
under  the  same  grantor,  and  it  is  to  these  only  that  the  record 
is  constructive  notice.^  If  a  purchaser  of  land  actually  knows 
that  another  person  has  a  prior  deed  for  the  same  land,  this 
mere  fact  is  not  sufficient  to  put  him  upon  inquiry  as  to  the  title 
of  the  grantor  of  such  prior  purchaser.  When  he  has  no 
other  information,  the  subsequent  purchaser  may  rely  on  the 
presumption  that  the  title  of  the  prior  purchaser,  whatever  it 
may  be,  is  on  record,  as  the  law  requires  it  should  be,  and 
may  act  on  the  assumption  that  such  prior  purchaser  has  no 
title  if  the  records  disclose  none.^     Hence,  where  a  person  has 


9  George  v.  Wood,  9  Allen,  80,  85 
Am.  Dec.  741 ;  Calder  v.  Chap- 
man, 52  Pa.  St.  359,  91  Am.  Dea 
163;  Long  v.  Dollarhide,  24  Cal. 
218;  Hager  v.  Spect,  52  Cal.  579; 
Kerfoot  v.  Cronin,  105  111.  609 ;  Bak- 
er V.  Griffin,  50  Miss.  158;  Woods  v. 
Farmere,  7  Watts,  382,  32  Am.  Dec. 
772;  Losey  v.  Simpson,  3  Stockt. 
Ch.  246 ;  Odle  v.  Odie,  73  Mo.  289 ; 
Tilton  V.  Hunter,  24  Me.  29;  Brock 
V.  Headen,  13  Ala.  370;  Blake  v. 
Graham,  6  Ohio  St.  580,  67  Am. 
Dec.  360 ;  Lightner  v.  Mooney,  10 
Watts,  407;  Bates  v.  Norcross,  14 
Pick.  224;  Embury  v.  Conner,  2 
Sandf.  98;  Keller  v.  Nutz,  5  Serg. 
&  R.  246;  Murray  v.  Ballou,  1 
Johns.  Ch.  566;  Hetherington  v. 
Clark,  30  Pa.  St.  (6  Casey),  393 
Crockett  v,  Maguire,  10  Mo.  34 
Stuyvesant  v.  Hall,  2  Barb.  Ch.  151 
Hoy  V.  Bramhall,  19  N.  J.  Eq.  (4 
Green,  C.  E.)  563;  Iglehart  v. 
Crane;  42  111.  261;  Leiby  v.  Wolf, 
10  Ohio,  80;  Blake  v.  Graham,  6 
Ohio  St.  580,  67  Am.  Dec.  360 
Wkittington  v.  Wright,  9  Ga.  23 
Dolin    V.    Gardner,    15    Ala.    758 


Farmers'  etc.  Co.  v.  Maltby,  8 
Paige,  361;  Cook  v.  Travis,  20  N. 
Y.  402;  Page  v.  Waring,  76  N.  Y. 
463 ;  Roberts  v.  Bourne,  23  Me.  165, 
39  Am.  Dec.  614;  Holmes  v.  Buck- 
ner,  67  Tex.  107;  Huber  v.  Bos- 
sart,  70  Iowa,  718 ;  Leach  v.  Beattie, 
33  Vt.  195 ;  Doolittle  v.  Cook,  75 
111.  354;  Cooper  v.  Bigly,  13  Mich. 
463;  James  v.  Brown,  11  Mich.  25; 
Helms  V.  Chadbourne,  45  Wis.  60; 
Draude  v.  Bohrer  Mfg.  Co.,  9  Mo. 
App.  249;  Hill  v.  McCarter,  27  N. 
J.  Eq.  41 ;  Tarbell  v.  West,  86  N.  Y. 
280;  Howard  Ins.  Co.  v.  Halsey, 
8  N.  Y.  271,  59  Am.  Dec.  478;  Cald- 
er V.  Chapman,  52  Pa.  St.  359,  91 
Am.  Dec.  163 ;  Traphagen  v.  Irwin, 
18  Neb.  195. 

1  St.  John  V.  Conger,  40  111.  537. 
Mr.  Justice  Lawrence,  who  deliv- 
ered the  opinion  of  the  court,  said : 
"It  is  also  urged  that  the  subse- 
quent deed  from  Schenck  to  Whit- 
temore  should  have  put  the  defend- 
ant, and  those  under  whom  he 
claims,  upon  inquiry  as  to  what- 
ever title  Schenck  had.  This  prop- 
osition in  effect  is,  that  if  a  person 


CHAP.    XXII.]  REGISTRATION    OF    DEEDS. 


131: 


no  right  to  the  land,  the  registry  of  a  deed  made  and  acknowl- 
edged by  him,  is  not  constructive  notice  of  its  execution  to  the 
true  owner.  "It  is  only  notice  to  after-purchasers  under  the 
same  grantor.  To  hold  the  proprietors  of  land  to  take  notice 
of  the  record  of  deeds,  to  determine  whether  some  stranger 
has  without  right  made  conveyance  of  their  lands,  would  be  a 
most  dangerous  doctrine,  and  cannot  be  sustained  with  any 
color  of  reason  or  authority."  ^  The  grantee  in  an  unrecorded 
deed  placed  on  record  a  deed  of  trust  from  himself  to  a  third 
person,  reciting  that  it  was  made  for  the  purpose  of  securing 
two  notes  to  his  grantor.  After  the  registration  of  the  trust 
deed  the  grantor  in  the  unrecorded  deed  conveyed  to  innocent 
purchasers  for  value,  and  it  was  held  that  as  the  trust  deed 
was  not  in  the  chain  of  their  title,  the  recording  of  it  was  not 
notice  to  them.^  In  the  absence  of  fraud  or  actual  notice,  a 
grantee  is  not  affected  with  notice  of  a  deed  fraudulently  exe- 
cuted and  recorded  by  a  married  woman  under  her  maiden 


name. 


has  made  a  deed  of  a  tract  of  land 
having  no  recorded  title,  he  must, 
nevertheless,  be  supposed  to  have 
had  some  title,  and  subsequent  pur- 
chasers must  take  notice  of  what- 
ever title  he  had.  Much  as  registry 
laws  have  been  frittered  away  by 
the  doctrine  of  putting  parties  upon 
inquiry,  we  do  not  think  any  court 
has  ever  gone  to  the  extent  of 
adopting  this  rule;  it  would  sub- 
stantially defeat  the  object  of  the 
registry  laws.  Their  object  is  to 
provide  a  public  record,  which  shall 
furnish,  to  all  persons  interested, 
authentic  information  as  to  titles  to 
real  estate,  and  enable  them  to  act 
on  the  information  thus  acquired. 
This  rule  would  require  a  person 
purchasing  from  one  who  has  the 
title  on  record,  to  take  subject  to 


the  unrecorded  deeds  of  persons 
claiming  under  a  chain  of  title  hav- 
ing no  connection  of  record  with 
the  true  source  of  title.  If  such 
purchaser  is  to  be  held  to  notice 
of  such  a  chain  of  title  at  all,  he  has 
the  right  to  presume,  in  the  ab- 
sence of  any  other  information,  that 
whatever  title  the  persons  claim- 
ing under  such  chain  have,  is  on 
record,  as  the  law  requires  it  to  be, 
and  that  they  have  no  title  if  the 
record  shows  none." 

2  Bates  v.  Norcross,  14  Pick.  224, 
231. 

3Kerfoot  v.  Cronin,   105  111.  609. 

*  Draude  v.  Rohrer  Christian 
Mfg.  Co.,  9  Mo.  App.  249.  In  a 
recent  case,  Gannt,  P.  J.,  after  re- 
viewing the  authorities  says :  "Our 
conclusion  is,  that  a  recorded  deed 


1316  THE   LAW    OF   DEEDS.  [CIIAP,    XXn. 

§  714.  Illustrations. — A  conveyed  to  B  two  tracts  of 
land  by  an  absolute  deed,  taking  a  portion  of  the  considera- 
tion in  money  and  the  balance  in  the  notes  of  the  purchaser. 
Subsequently  B  sold  and  conveyed  one  of  these  tracts  to  C,  by 
a  deed  which  was  likewise  absolute.  But  in  this  latter  transfer 
no  money  was  paid,  B  taking  the  notes  of  C,  who  had  notice 
that  B  was  still  indebted  to  A.  A  year  afterward,  B,  with  the 
consent  and  approval  of  C,  executed  a  trust  deed  which  em- 
braced both  these  trusts,  to  secure  to  A  the  amount  of  the 
purchase  money  remaining  due  liini.  Although  C  had  agreed 
to  join  in  this  deed  of  trust,  as  a  matter  of  fact,  he  did  not 
do  so.  After  the  execution  of  the  trust  deed,  C  sold  and  con- 
veyed the  one  tract  he  had  purchased  to  D.  The  latter  made 
no  search  in  the  recorder's  office  and  had  no  actual  knowledge 
of  the  trust  deed,  and  it  was  held  that  he  was  a  bona  Ude  pur- 
chaser, unaffected  by  the  trust  deed.  "The  rule  upon  this  state 
of  facts,"  said  the  court,  "is  understood  to  be,  that  the  pur- 
chaser of  the  legal  title  is  not  bound  to  take  notice  of  a  regis- 
tered lien  or  encumbrance  of  an  estate,  created  by  any  person 
other  than  those  through  whom  he  is  compelled  to  deraign 
his  title."  ^  A  purchaser  from  A,  a  trustee,  is  not  charged 
with  notice  of  the  trust  from  the  fact  that  B  executed  a  deed 
to  C,  reciting  the  execution  of  a  declaration  of  trust  on  the 
part  of  A.^  Nor  is  the  registration  of  a  deed  between  third 
persons,  notice  to  a  purchaser  at  an  execution  sale  who  does 
not  claim  under  such  deed.'^     Following  out  the  principle  that 

by  one  who  has  no  title,  but  who  line  of  title,'  as  that  term  is  used  by 

afterward  acquires  the  title  by  re-  conveyancers  and  searchers" :    Ford 

corded    deed,    is    not    constructive  v.   Unity   Church   Society,   120  Mo. 

notice  to  a  subsequent  purchaser  in  498,  23  L.R.A.  561,  41  Am.  Sl  Rep. 

good  faith  from  the  common  grant-  711. 

or.       We     think     that     when     he  ^  Baker  v.    Griffin,   50   Miss.    158, 

searches   till   he  finds  the  deed  by  163.     Sec,  also,  Harper  v.  Hopkins, 

which     his     grantor     acquires     the  34  Miss.  472. 

title,  he  is  not  bound  to  look   for  ^  Murray  v.  Ballon,  1  Johns.  Ch. 

deeds    made    prior    to    that    time.  566. 

Such    prior   deeds    are   not    'in   the  '  Keller  v.  Nutz,  5  Serg.  &  R.  245, 


CHAP.    XXII.]  REGISTRATION    OF    DEEDS.  1317 

a  purchaser  of  land  is  not  charged  with  constructive  notice  of 
any  fact  which  is  not  connected  with  the  course  of  his  title,  it 
is  held  that  he  is  not  presumed  to  know  of  the  registry  of  a 
will  containing  a  devise  of  the  land  which  he  claims  by  a  su- 
perior title.^  It  is  said  that  a  judgment  debtor,  who  retains 
possession  of  land  sold  under  execution  against  him,  may  be 
presumed  to  hold  under  the  title  of  the  purchaser  at  the  sale. 
But  in  a  case  where  a  judgment  debtor  remained  in  possession 
for  a  long  period  of  time,  claiming  that  he  was  holding  as  the 
life  tenant  of  a  purchaser  under  a  senior  judgment,  the  deed 
to  whom  had  never  been  filed  for  record,  it  was  held  that  his 
possession  could  not  be  considered  as  constructive  notice  to  a 
subsequent  mortgagee,  under  the  junior  judgment  of  such  as- 
serted title,  or  of  the  title  of  the  one,  who,  he  claimed,  was  his 
lessor.^  Where  a  subsequent  purchaser  has  no  actual  knowl- 
edge of  prior  equities,  he  is  not  charged  with  constructive 
notice  of  such  equities  because  they  are  expressed  in  the  re- 
citals of  an  unauthorized  deed  duly  recorded,  from  the  execu- 
tors of  an  individual  through  whose  heirs  the  subsequent  pur- 
chaser derives  his  title.^ 

§  715.  Record  of  deeds  subsequent  to  mortgage  not 
notice  to  mortgagee. — It  results  from  the  principle  we 
have  just  stated  that  after  the  registration  of  a  mortgage,  the 
mortgagee  is  not  charged  with  notice  of  deeds  or  mortgages 
subsequently  made  by  the  mortgagor.*     "The  effect  of  record- 

« Woods    V.    Farmere,    7    Watts,  the   record,  necessarily  pass   under 

382,  32  Am.  Dec.  772.  his  inspection." 

9  Cook  V.  Travis,  20  N.  Y.  400.  2  igiehart   v.   Crane,   42  111.   261 ; 

1  Blake  v.  Graham,  6  Ohio  St.  King  v.  McVickar,  3  Sand.  Ch.  192 ; 
580,  67  Am.  Dec.  360.  The  court  Birnie  v.  Main,  29  Ark.  591 ;  Coop- 
said  that  this  rule  rested  on  the  er  v.  Bigly,  13  Mich.  463 ;  Heaton  v. 
reason,  "that  a  searcher  can  be  fair-  Prather,  84  111.  330 ;  James  v. 
ly  supposed  to  be  made  acquainted  Brown,  11  Mich.  25;  Stuyvesant  v. 
with  the  contents  of  such  deeds  Hone,  1  Sand.  Ch.  419;  George  v. 
only  as,  in  the  process  of  tracing.  Wood,  9  Allen,  80,  85  Am.  Dec.  741 ; 
link  by  link,  his  chain  of  title  on  Deuster  v.  Mc;Camus,  14  Wis.  307; 


1318  THE    LAW    OF    DEEDS.  [CHAP.    XXII. 

ing  a  mortgage  or  other  conveyance  is  not  retrospective,  or  its 
object  to  affect  rights  already  vested  and  secured,  and  a  mort- 
gagee, after  having  his  deed  recorded,  is  not  required  to  search 
the  record  from  time  to  time  to  see  whether  other  encumbrances 
have  been  put  upon  the  land  with  which  he  is  in  nowise  con- 
cerned." ^  Where  there  are  two  mortgages,  the  court  may 
prevent  the  first  mortgagee,  in  case  he  has  released  lands  pri- 
marily liable  for  his  claim  to  the  prejudice  of  the  second  mort- 
gagee, whose  lien  extends  to  only  part  of  the  lands  affected 
by  the  first  mortgage,  from  enforcing  his  mortgage  upon  the 
land  included  in  both  mortgages,  until  he  makes  a  deduction 
of  the  value  of  the  land  released  from  this  debt.  But  this 
action  will  not  be  taken  unless  the  first  mortgagee  has  know- 
ingly prejudiced  the  rights  of  the  other.  He  is  not  liable  to 
these  consequences  if  he  releases  without  notice,  and  the  record 
is  not  notice  for  this  purpose.*  "The  law  requires  every  man 
so  to  deal  with  his  own  as  not  unnecessarily  to  injure  another. 
He  may  sell  his  property  to  whom  he  pleases,  without  consult- 
ing his  neighbor,  or  inquiring  how  it  may  affect  his  interests. 
And  if  he  take  a  mortgage  of  A  to-day,  he  may  to-morrow  or 
next  week  release  a  part  or  the  whole  of  the  mortgaged  prem- 

Howard  Ins.  Co.  v.  Halsey,  8  N.  Y.  Raynor    v.    Wilson,    6    Hill,    469 ; 

271,  59  Am.  Dec.  478;  Straight  v.  Patty   v.    Pease,   8    Paige,    277,   35 

Harris,    14   Wis.    509;    Doolittle   v.  Am.  Dec.  683;  Kipp  v.  Merselis,  30 

Cook,    75    111.    354;    Westbrook    v.  N.  J.   Eq.  99;   Meacham  v.   Steele, 

Gleason,  14  Plun,  245 ;  Van  Orden  93  III.  135 ;  Cogswell  v.  Stout,  32  N. 

V.  Johnson,  14  N.  J.  Eq.  376,  82  Am.  J.    Eq.    240 ;    Guion    v.    Knapp,    6 

Dec.  254;  Halstead  v.  Bank  of  Ken-  Paige,  35,  29  Am.  Dec.  741;  Brown 

tucky,  4  Marsh.  J.  J.  555;  Wheel-  v.  Simons,  44  N.  H.  475;  Sarles  v. 

wright  V.  De  Peyster,  4  Edw.  Ch.  McGee,  1  N.  Dak.  365,  26  Am.  St. 

232,  3   Am.  Dec.  345;   Truscott  v.  Rep.    633,    48    N.    W.    Rep.    231; 

King,  6  Barb.  346;  Blair  v.  Ward,  Bright   v.    Buckman,   39   Fed.    Rep. 

10  N.  J.  Eq.    (2  Stockt.  Ch.)   119;  243;  Johnson  v.  Valido  Marble  Co., 

Talmage    v.    Wilgers,    4    Edw.    Ch.  64  Vt.  Z2,7,  25  All.  Rep.  441. 
239,  n;  Hoy  v.  Bramhall,  19  N.  J.  3  Birnie    v.    Main,    29    Ark.    591, 

Eq.  563 ;  Taylor  v.  Maris,  5  Rawle,  595,  per  Harrison,  J. 
51;    Leiby   v.   Wolf,    10   Ohio,   83;  *  Blair  v.  Ward,  19  N.  J.  Eq.   (2 

Hill  V.  McCarter,  27  N.  J.  Eq.  41;  Stockt.  Ch.)   119. 


CfiA?.    XXII.]  REGISTRATION    OF    DEEDS.  1319 

ises,  on  the  request  of  the  mortgagor,  without  troubling  him- 
self to  inquire  whether  in  the  meantime  some  one  has  not 
taken  a  subsequent  mortgage,  and,  if  so,  whether  it  would  be 
agreeable  to  such  person  that  he  should  release.     It  is  the  duty 
of  a  subsequent  mortgagee,  if  he  intends  to  claim  any  rights 
through  the  first  mortgage,  or  that  may  affect  the  rights  of 
the  mortgagee  under  it,  to  give  the  holder  thereof  notice  of  his 
mortgage,  that  the  first  mortgagee  may  act  with  his  own  un- 
derstandingly.     If  he  does  not,  and  the  first  mortgagee  does 
with  his  mortgage  what  it  was  lawful  for  him  to  do  before  the 
second  mortgage  was  given,  without  knowledge  of  its  exis- 
tence, the  injury  is  the  result  of  the  second  mortgagee's  negli- 
gence in  not  giving  notice.    While  the  law  requires  every  man 
to  deal  with  his  own  so  as  not  to  injure  another,  it  imposes  a 
greater  obligation  on  the  other  to  take  care  of  his  own  prop- 
erty than  on  a  stranger  to  take  care  of  it  for  him.     And  to 
make  it  the  duty  of  the  first  mortgagee  to  inquire  before  he 
acts,  lest  he  may  injure  some  one,  would  reverse  this  rule,  and 
make  it  his  duty  to  do  for  the  second  mortgagee  what  the  lat- 
ter should  do  for  himself.    To  affect  the  conscience,  therefore, 
of   the  first  mortgagee — for  this   whole  doctrine   is   one  of 
equity  jurisprudence,  and  not  of  positive  law — it  would  seem 
that  he  should  have  actual  knowledge  of  the  second  mortgage. 
We  do  not  say  notice  from  the  second  mortgagee  is  absolutely 
necessary  to  enable  him  to  claim  the  rights  of  which  we  have 
been  speaking;  but  we  do  think  that  the  existence  of  the  sec- 
ond mortgage  should  clearly  be  brought  home  to  the  knowl- 
edge of  the  first  mortgagee,  in  such  a  way  as  to  show  an  in- 
tentional disregard  by  him  of  the  interests  of  the  subsequent 
mortgagee."  ^ 

§  716.     Subsequent  purchaser  should  notify  mortgagee. 

— If  subsequent  purchasers  or  lienholders  desire  to  ob- 

6  James    v.    Brown,    11    Mich.   25,     30,  per  Manning,  J. 


1320  THE    LAW    OF    DEEDS.  [CHAP.    XXII. 

tain  any  equity  which  they  may  compel  a  prior  mortgagee  to 
respect,  they  must  give  him  actual  notice  of  their  claims.^ 
Hence,  when  a  whole  lot  of  land  is  covered  by  a  prior  mort- 
gage, the  fact  that  a  builder  has  possession  of  one  part  of  it 
for  the  erection  of  a  building,  and  is  actually  engaged  in  its 
construction,  is  not  sufficient  to  charge  the  mortgagee  with 
notice  that  the  builder  has  a  lien,  and  does  not  place  on  the 
mortgagee  the  obligation  of  inquiring  as  to  the  existence  of 
the  lien,  or  invest  the  builder  with  the  equitable  right  to  ask 
for  a  reduction  of  the  mortgage  debt  in  proportion  to  the 
value  of  other  lots  released  from  the  operation  of  the  mort- 
gage.' But  it  was  held,  in  Michigan,  that  where  the  land 
mortgaged  was  situated  on  one  of  the  main  streets  of  the  vil- 
lage in  which  the  mortgagee  resided,  and  a  purchaser  of  a  part 
of  the  land  had  promptly  placed  his  deed  on  record,  and  went 
into  actual  possession  of  the  premises  and  made  improvements 
to  them  as  a  place  of  residence,  the  knowledge  of  these  facts 
on  the  part  of  the  mortgagee  was  sufficient  to  put  him  upon 
inquiry  before  releasing  from  the  operation  of  the  lien  of  the 
mortgage  other  parts  of  the  whole  tract.'  , 

§  717.  Actual  notice. — If  the  deed  of  the  purchaser  is 
recorded,  and  the  mortgagee  is  notified  by  letter  of  the  sale 
and  the  name  of  the  buyer,  he  cannot  release  any  part  of  the 
land  to  the  prejudice  of  such  purchaser.®  A  mortgagee  has  a 
right  to  presume,  when  he  has  no  express  notice  of  anything 
to  put  him  upon  inquiry,  that  the  condition  of  affairs  is  the 
same  as  when  his  mortgage  was  executed,  and  that  the  mort- 
gagor is  still  the  owner;  and  mere  possession  by  itself  alone, 
without  the  mortgagee's  knowledge  of  who  has  possession,  or 
knowledge  of  any  facts  to  excite  inquiry,  does  not  amount  to 

«  Cheever  v.  Fair,  5  Cal.  337 ;  Mc  •  ^  McIIvain   v.    Mutual   Assurance 

Ilvain  V.  Mutual  Assurance  Co.,  93      Co.,  93  Pa.  St.  30. 
Pa.  St  30.  8  Dewey  v.  Ingersoll,  42  Mich.  17. 

»Hall  V.  Edwards,  43  Mich.  473. 


CHAP.    XXII.]  REGISTRATION    OF   DEEDS.  1321 

notice.^  But  if  he  has  actual  notice  of  a  subsequent  deed,  a 
release  of  a  part  of  the  mortgaged  premises,  to  the  prejudice 
of  the  grantee,  will  have  the  effect  of  discharging  his  lien  to 
the  extent  of  the  value  of  the  land  removed  from  the  operation 
of  the  mortgage.* 

§  718.  Notice  of  unrecorded  deed. — If  succeeding 
deeds  contain  proper  recitals,  a  party  may  be  charged  with  con- 
structive notice  of  prior  unrecorded  deeds.  But  if  a  grantee 
in  an  unrecorded  deed  conveys  the  land  described  therein  to  a 
party,  and  the  latter  to  another,  and  neither  of  the  two  deeds 
last  executed  contains  any  reference  to  the  unrecorded  deed, 
the  record  of  these  latter  deeds  give  no  notice  of  the  unrecord- 
ed deed.^  And  in  this  connection  it  may  be  observed  that  a 
purchaser  is  not  charged  with  notice  that  there  exists  an  ad- 
verse unrecorded  deed  of  the  land  purchased  by  him,  from  the 
mere  fact  that  before  the  purchase,  in  an  interview  with  his 
grantor,  he  was  informed  by  him  that  he  was  not  able  to  make 
a  good  title,  but  would  be  in  a  short  time.*  Both  parties 
claimed  title  from  a  common  source.  One  claimed  under  a 
deed  to  A,  which  was  first  executed,  but  was  not  recorded  un- 
til after  the  record  of  a  deed  to  B,  under  whom  the  other  party 
claimed.  It  was  held  that  it  was  immaterial  that  the  deed  from 
A  was  recorded  before  the  deed  to  B.  If  the  latter  deed  had 
acquired  priority  by  reason  of  its  precedence  on  the  record,  no 
valid  title  against  it  could  be  obtained  from  A.  It  was  also 
held  to  be  immaterial  that  A's  deed  was  recorded  prior  to  a 
deed  from  B,  or  from  the  latter's  grantee,  for  if  the  latter  is 
protected  by  the  recording  laws,  so  are  all  claiming  under 
him.^    When  a  person  has  notice  of  an  unrecorded  deed  he  is 

1  Cogswell  V.  Stout,  32  N.  J.  Eq.  *  The  City  of  Chicago  v.  Witt, 
240.  supra. 

2  Cogswell  V.  Stout,  supra.  See  ^  Page  v.  Waring,  76  N.  Y.  463. 
Gilbert  v.  Haire,  43  Mich.  283.  See,  also,  Roberts  v.  Bourne,  23  Me. 

3  The  City  of  Chicago  v.  Witt,  165,  39  Am.  Dec.  614;  Felton  v.  Pit- 
75  111.  211.  man,  14  Ga.  536;  Calder  v.  Chap- 


1322 


THE   LAW   OF   DEEDS. 


[chap.  Xxll. 


considered  as  having  notice  also  of  its  contents.^  A  subse- 
quent purchaser  from  the  holder  of  the  record  title  is  not 
charged  with  notice  by  the  registration  of  a  conveyance  made 
to  a  third  person  by  the  grantee  in  an  outstanding  unrecorded 
deed.'  The  fact  that  a  mortgage  to  the  grantor  is  of  record 
does  not  give  notice  of  a  prior  unrecorded  deed  executed  by 
him  to  the  mortgagor.®     A  deed  in  which  a  vendor's  lien  to 


man,  52  Pa.  St.  359,  91  Am.  Dec. 
163;  Fenno  v.  Sayre,  3  Ala.  458; 
Harris  v.  Arnold,  1  R.  I.  125; 
Lightner  v.  Mooney,  10  Watts,  407 ; 
Cook  V.  Travis,  22  Barb.  338.  "An 
open  and  continued  possession  of 
land  by  a  person  having  an  unre- 
corded deed,  and  claiming  the  land 
as  his  own  is  not  presumptive  no- 
tice of  the  existence  of  such  a  deed, 
to  a  subsequent  purchaser.  If  a 
deed  could  be  presumed  from  pos- 
session, it  would  not  be  necessary 
to  record  it.  Possession,  though 
evidence  of  some  title,  is  not  nec- 
essarily evidence  of  any  particular 
title,  but  should  put  the  party  on 
inquiry;  and  the  intent  of  the  reg- 
istry act  is  to  protect  purchasers 
from  secret  or  concealed  convey- 
ances, by  requiring  every  deed  to 
be  recorded,  on  the  peril  of  for- 
feiture of  the  estate" :  Harris  v. 
Arnold,  supra. 

In  Felton  v.  Pitman,  supra,  the 
court  say:  "Mr.  Pitman  is  about 
to  purchase  lot  No.  374,  in  Sumter 
county,  of  Allen  Marshall,  who  in- 
forms him  that  he  derived  title 
from  Mrs.  Jane  Carlisle,  the  only 
heir  at  law  of  Benjamin  Carlisle, 
deceased,  and  also  from  the  es- 
tate of  said  deceased.  How  could 
the  registration  of  deeds  from  Sul- 
livan to  Marshall,  and  from  Mar- 


shall to  Rushin,  put  Mr.  Pitman  up- 
on inquiry  as  to  the  ownership  of 
this  land?  He  searches  the  rec- 
ords alphabetically  to  see  whether 
the  Carlisles,  husband  or  wife,  his 
original  grantors,  have  conveyed. 
He  finds  no  deed  passing  out  of 
them.  What  is  there  upon  the 
books  to  direct  his  attention  or  in- 
quiry to  deeds,  executed  by  other 
persons  having  no  connection  with 
the  Carlisles?  We  look  to  the  in- 
dex for  the  names  of  the  grantor 
and  grantee,  and  not  to  the  body  of 
the  deed  to  see  what  property  they 
convey.  Such  a  rule  as  this  would 
devolve  upon  every  citizen,  for  his 
safety  and  security,  to  search  the 
books  in  the  clerk's  office  almost 
as  diligently  as  his  Bible,  to  see 
what  property  was  passing  from 
hand  to  hand,  throughout  the  en- 
tire community.  It  would  be  prac- 
tically to  convert  him  into  that  most 
odious  of  characters,  a  busy  body 
into  other  people's  matters." 

6  Hill  V.   Murray,  56  Vt.   177. 

'  Pyles  V.  Brown,  189  Pa.  St.  164, 
42  Atl.  11,  69  Am.  St.  Rep.  794; 
Booker  v.  Booker,  208  111.  529,  70 
N.  E.  709,  100  Am.  St.  Rep.  250; 
McCreary  v.  Reliance  Lumber  Co., 
16  Tex.  Civ.  App.  45,  41  S.  W.  485. 

*  Sternberger  v.  Ragland,  57 
Ohio  St  148,  48  N.  K  811, 


CHAP.    XXII.]  REGISTRATION    OF    DEEDS.  1323 

secure  the  purchase  price  is  secured  and  which  recites  that  a 
deed  of  trust  has  been  executed  as  additional  security,  is  notice 
to  all  who  claim  through  it,  not  only  of  the  lien  but  also  of 
the  unrecorded  trust  deed.' 

§  719.  Unrecorded  deed,  and  recorded  purchase 
money  mortgage. — If  a  person  sells  a  piece  of  land  exe- 
cuting a  deed  therefor,  and  the  grantee  makes  a  mortgage  back, 
the  deed  being  unrecorded,  the  registration  of  the  mortgage 
is  not  notice  of  the  existence  of  the  unrecorded  deed.^ 

§  720.  Comments. — In  such  a  case,  the  title  upon  the 
records  would  appear  to  be  in  the  grantor,  and  if  a  third  per- 
son should  execute  a  mortgage  to  him,  its  record  could  not  of 
itself  alone  give  any  notice  that  the  mortgagor  had  title  under 
a  prior  unrecorded  deed.  It  is  possible,  however,  that  if  it 
could  be  shown  that  a  subsequent  purchaser  had  actual  knowl- 
edge of  this  mortgage,  aside  from  the  presumption  of  con- 
structive notice  from  the  fact  of  its  registration,  he  might  be 
deemed  to  have  information  of  sufficient  facts  to  put  him  upon 
inquiry,  and  might  be  charged  with  notice  if  he  failed  to  prose- 
cute it.    But  this  is  extremely  doubtful. 

§  721.  Subsequently  acquired  title  inuring  to  benefit 
of  grantee  to  prejudice  of  purchaser. — If  a  person,  who 
has  no  title  at  the  time,  conveys  or  mortgages  a  piece  of  land 
to  another  with  warranty,  any  title  he  may  subsequently  ac- 

9  Garrett    v.    Parker    (Tex.    Civ.  110  Am.    St.    Rep.  615;    Bunker  v. 

App.)  39  S.  W.  147.     As  to  notice  Barron,    93    Me.    87,   44   Atl.   372; 

given  by  record  of  instruments  not  Babcock  v.  Young,   117  Mich.   155, 

recorded,     see:       Tennessee     Coal,  75   N.   W.   302;   Advance  Thresher 

Iron  &  R.  Co.  v.  Gardner,  131  Ala.  Co.   v.    Esteb,  41    Or.  469,  69   Pac. 

599,    32    So.    622;    Scotch    Lumber  447;    Peterborough    Sav.    Bank    v. 

Co.  V.  Sage,  132  Ala.  598,  32  So.  Pierce,  54  Neb.  712,  75  N.  W.  20. 
607,   90   Am.    St.    Rep.   932;    Equi-  i  Veazie  v.   Parker,  23    Me.    170; 

table    Building    &    Loan    Assn.    v.  Pierce  v.  Taylor,  23  Me.  246. 
Corley,  72  S.   C.  404,  52  S,  E.  48, 


1324  THE    LAW    OF    DEEDS.  [CHAP.    XXU. 

quire  will  inure  to  the  benefit  of  the  grantee  or  mortgagee, 
and  in  some  States,  this  rule  prevails  by  force  of  statute,  even 
in  the  absence  of  an  express  warranty  in  the  instrument  itself. 
It  is  held  that  this  principle  applies  to  a  case  where  the  grantor 
procures  title  and,  at  the  same  time,  conveys  or  mortgages  the 
premises  to  another.  The  title  thus  acquired  inures  to  the 
benefit  of  the  first  grantee  under  the  deed  made  prior  to  the 
acquisition  of  title.^  A  person  purchased  a  piece  of  land  and 
put  his  son  into  possession,  who  forged  a  deed  of  the  land 
from  his  father  to  himself  and  placed  it  upon  record.  Sub- 
sequently the  son,  for  the  purpose  of  securing  a  loan,  executed 
a  mortgage  with  covenants  of  warranty.  Some  years  after- 
ward the  father  made  a  deed  to  his  son,  and  this  was  placed 
upon  record.  Afterward  the  son  conveyed  the  land  to  an- 
other, who  purchased  it  for  a  full  consideration  without  notice 
of  the  mortgage.  It  was  held  by  a  majority  of  the  court  that 
the  record  of  the  mortgage  was  constructive  notice  to  such  sub- 
sequent purchaser,  and,  under  the  recording  laws,  was  entitled 
to  priority  over  his  title.^  Commissioner  Earl,  who  spoke  for 
the  majority  of  the  court,  said :  "It  is  a  principle  of  law,  not 
now  open  to  doubt,  that  ordinarily,  if  one  who  has  no  title 
to  lands,  nevertheless  makes  a  deed  of  conveyance  with  war- 


sjarvis  v.  Aikens,  25  Vt.  635 
Wark  V.  Willard,  13  N.  H.  389 
Tefft  V.  Munson,  57  N.  Y.  91 
Doyle  V.  Peerless  etc.  Co.,  44  Barb 
239;    Pike  v.   Galvin,  29   Me.   183 


Cal.  455,  89  Am.  Dec.  205 ;  Gotham 
V.  Gotham,  55  N.  H.  440;  Cooke  v. 
Watson,  30  N.  J.  Eq.  345;  Lemon 
V.  Terhune,  40  N.  J.  Eq.  364;  Russ 
V.  Alspaugh,  118  Mass.  368,  19  Am. 


Kimball  v.  Blaisdell,  5  N.  H.  533,  Rep.   464;    Knight   v.   Thayer,    125 

22  Am.  Dec.  476;   Somes  v.   Skin-  Mass.  25;  Boone  v.  Armstrong,  87 

ner,  3  Pick.  52;  Farmer's  L.  &  T.  Ind.    168;    Mclnniss   v.    Pickett,   65 

,  Co.  V.  Maltby,  8  Paige,  361 ;  Salis-  Miss.  354,  3   So.  Rep.  660 ;   Kaiser 

bury  Savings  Society  v.  Cutting,  50  v.  Earhart,  64  Miss.  492,  1  So.  Rep. 

Conn.    113;    Philly    v.    Sanders,    11  635;  Bramlett  v.  Roberts,  68  Miss. 

Ohio  ,St.   490,    78   Am.    Dec.    316;  325,    10   So.   Rep.   56;    Edwards   v. 

Douglass    V.    Scott,    5    Ohio,    194;  Ilillier,   70   Miss.  803,    13   So.   Rep. 

Crane    v.    Turner,    67    N.    Y.    437;  692. 

Christy   v.    Dana,    34    Cal.    548,   42  3  Tefft  v.   Munson,  57  N.  Y.  91. 

Cal.  174;  Kirkaldie  v.  Larrabee,  31 


CHAP.    XXII,]  REGISTRATION    OF   DEEDS,  1325 

ranty,  and  afterward  himself  purchases  and  receives  the  title, 
the  same  will  vest  immediately  in  his  grantee,  who  holds  his 
deed  with  warranty  as  against  such  grantor  by  estoppel.  In 
such  case  the  estoppel  is  held  to  bind  the  land,  and  to  create  an 
estate  and  interest  in  it.  The  grantor,  in  such  case,  being  at 
the  same  time  the  warrantor  of  the  title,  which  he  has  assumed 
the  right  to  convey,  will  not,  in  a  court  of  justice,  be  heard  to 
set  up  a  title  in  himself  against  his  own  prior  grant;  he  will 
not  be  heard  to  say  that  he  had  not  the  title  at  the  date  of  the 
conveyance,  or  that  it  did  not  pass  to  his  grantee  in  virtue  of 
his  deed.*  And  the  doctrine,  as  will  be  seen  by  these  authori- 
ties, is  equally  well  settled  that  the  estoppel  binds  not  only  the 
parties,  but  all  privies  in  estate,  privies  in  blood,  and  privies 
in  law;  and  in  such  case,  the  title  is  treated  as  having  been 
previously  vested  in  the  grantor,  and  as  having  passed  im- 
mediately upon  the  execution  of  his  deed,  by  way  of  estoppel. 
.  .  .  .  Assuming  it  to  be  the  rule  that  the  record  of  a 
conveyance  made  by  one  having  no  title  is  ordinarily  a  nullity, 
and  constructive  notice  to  no  one,  the  plaintiff  cannot  avail 
himself  of  this  rule,  as  he  is  estopped  from  denying  that  the 
mortgagor  had  the  title  at  the  date  of  the  mortgage."  But 
Commissioner  Reynolds,  with  whom  concurred  Chief  Commis- 
sioner Lott,  dissented  from  these  views,  and  said :  "The 
forged  deed  was,  of  course,  a  nullity,  and  could  not  in  the 
eye  of  the  law  have  any  effect  by  way  of  constructive  notice  or 
otherwise.  It  conveyed  nothing,  and  was  not  a  'conveyance' 
within  the  meaning  of  the  recording  acts,  and  did  not  affect 
the  title  to  the  land  *in  law  or  in  equity.'  It  may  be  assumed, 
therefore,  that  the  loan  commissioners  took  the  mortgage 
knowing  that  Martin  B.  Perkins  had  no  title,  it  being  very 
clear  that  they  acquired  no  legal  rights  by  being  imposed  upon, 

4  Citing  Wark  v.  Willard,  13  N.  528,  567,  49  Am.  Dec.  189;  Jackson 

H.  389;   Kimball  v.  BlaisdeU,  5  N.  v.  Bull,  1  Johns.  Cas.  81,  90;  White 

H.   533,   22   Am.   Dec.   476;    Somes  v.    Patten,    24    Pick.    324;    Pike    v. 

V.  Skinner,  3   Pick.  52;  The  Bank  Galvin,  29  Me.  183. 
of  Utica  V.  IMesereau,  3  Barb.  CIi. 


1326  THE    LAW    OF    DEEDS.  [CHAP.    XXII. 

against  anyone  save  Martin  B.  Perkins.  They  got  no  inter- 
est in  the  land,  either  in  law  or  equity.  It  is  not  in  principle 
unlike  the  case  of  a  forged  negotiable  promissory  note,  where 
a  bona  fide  holder  for  value  can  have  no  protection.  It  fol- 
lows, therefore,  that  the  entiy  of  the  mortgage  in  the  books 
of  the  loan  office  at  the  time  it  was  made  was  of  no  legal 
consequence  whatever,  except  as  against  the  mortgagor.  It 
was  no  notice  under  the  recording  acts,  for  it  did  not  in  the 
remotest  degree  affect  the  title  to  the  land  described  in  it. 
,  .  .  .  It  is  urged  that  there  was  no  necessity  of  making 
any  further  record  of  the  mortgage,  because  the  title  in  the 
mortgagees  come  under  the  warranty  by  way  of  rebutter  or 
estoppel.  This  will  not  do.  It  is  sufficient  to  say  that  by  vir- 
tue of  the  transactions  under  which  the  defendants  look  to  en- 
force the  lien  of  the  mortgage,  the  title  to  the  land  is  affected, 
and  such  a  paper  must  be  properly  put  on  record  to  bind  sub- 
sequent purchasers  in  good  faith.  If  this  be  not  so,  it  is  im- 
possible to  see  how  a  subsequent  bona  fide  purchaser  can  have 
any  protection,  and  when  it  is  said  to  be  impossible  to  record 
the  estoppel  which  gave  the  mortgage  vitality,  it  may  be  an- 
swered, that  until  the  estoppel  became  operative,  the  mortgage 
was  a  nullity,  and  the  record  of  it  no  notice  whatever.  When, 
however,  Martin  B.  Perkins  obtained  the  title  to  the  premises, 
it  became  by  some  operation  of  law  valid  against  him,  but  it 
was  of  no  greater  force  or  effect,  than  if  he  had  on  that  day 
given  it  to  the  loan  commissioners.  It  then  for  the  first  time 
affected  the  title  to  the  land,  and  in  order  to  bind  subsequent 
purchasers  in  good  faith  must  be  duly  recorded,  and  this  was 
not  done  in  any  such  way  as  to  operate  as  constructive  notice 
under  the  recording  acts.  It  is  not  questioned  but  that  the 
plaintiff  is  to  be  protected  as  a  bona  fide  purchaser  for  value, 
unless  the  mortgage  given  in  1850,  and  then  entered  in  proper 
order  in  the  books  of  the  loan  office,  which  at  the  time  did  not 
affect  the  title  to  the  land  in  any  way,  was  constructive  notice 
of  the  lien.     It  is  well  settled  that  a  conveyance  that  is  nc 


CHAP.    XXII.]  REGISTRATION    OF    DEEDS.  1327 

duly  recorded  according  to  law,  even  when  the  actual  title  has 
passed,  is  not  effectual  as  constructive  notice.  Much  less  can 
it  be,  that  a  conveyance  which  does  not  affect  the  title  can  give 
any  legal  notice  whatever.  In  the  very  best  aspect  of  the  de- 
fendant's case,  the  record  of  the  mortgage  was  made  out  of 
the  order  required  by  law,  and  failed  to  give  notice  to  anybody 
dealing  with  the  title  to  the  land.  In  this  view  the  deed  of 
the  plaintiff  was  first  recorded,  and  he  is  entitled  to  protection 
in  his  title."  * 

§  722.  Comments. — Of  course,  the  legal  principle  that 
an  after-acquired  title  of  the  grantor,  when  there  is  an  express 
or  implied  covenant  of  warranty,  inures  to  the  benefit  of  the 
grantee,  cannot  be  disputed.  This  rule  is  founded  on  the 
principle  of  estoppel,  and  it  cannot  be  contended  that  such 
estoppel  does  not  bind  privies  as  well  as  the  grantor  himself. 
But  it  does  seem  that  some  way  should  be  provided  for  giving 
notice  of  this  after-acquired  title  by  the  record.  The  theory 
of  our  registration  laws  is,  that  the  records  disclose  all  inter- 
ests and  claims  affecting  title  to  real  estate.  It  is  against  their 
policy  to  allow  claims  to  be  set  up  founded  on  facts  or  trans- 
actions of  which  the  records  give  no  information.  And  it  is 
essential  to  the  security  of  land  titles  and  to  their  marketable 
value,  that  the  community  should  know  that  they  may  deal 
with  perfect  confidence  on  the  assumption  that  the  title  is  such 
as  the  records  show  it  to  be.  A  person  taking  a  chain  of  title, 
and  following  it  down  until  he  finds  the  title  in  a  certain  per- 
son, may  generally  act  on  the  belief  that  such  person  is  the 
owner  of  the  title.  But  in  the  case  we  have  been  considering 
in  the  previous  section,  he  cannot  always  safely  do  this.  Sup- 
pose that  A  is  the  owner  of  a  piece  of  land,  and  B  has  no  title 
whatever  to  it,  but  nevertheless  conveys  it  by  deed  with  cov- 
enant of  warranty  to  C,  who  has  his  deed  recorded.  A  person 
searching  the  records  would  find  the  title  in  A,  and  if  A  con- 

»Tefft  T.  Munson,  57  N.  Y.  101. 


1328  THE   LAW   OF   DEEDS.  [CHAP.    XXIL 

veyed  his  title  to  B,  he  would  find  that  A's  title  had  passed 
to  B,  and  would  naturally  conclude  that  B  was  the  owner,  if 
he  found  no  subsequent  conveyances  from  B.  But  if  B  had 
previously  conveyed  the  land  to  C,  with  covenant  of  warranty 
as  we  have  supposed,  his  title  would,  by  the  doctrine  of  estop- 
pel, inure  at  once  to  the  benefit  of  C.  If  B,  after  acquiring 
the  title,  should  convey  to  D,  the  latter  would  obtain  no  title, 
because  his  grantor  had  none  to  convey,  whatever  he  had  hav- 
ing passed  to  C.  There  is  no  escape  from  this  conclusion.  Yet 
it  must  be  apparent  that  a  person  who  relied  upon  the  records 
alone  for  the  claim  or  title  would  be  misled.  It  certainly  is 
desirable  that  some  method  should  be  provided  of  having  the 
record  show  all  the  rights  of  the  parties.  This  might  be  par- 
tially attained  in  the  case  under  consideration  by  giving  the 
grantee  under  the  prior  deed  a  specified  time  after  knowledge 
of  the  acquisition  of  title  by  the  grantor  in  which  to  re-record 
his  deed. 

§  723.  How  far  back  purchaser  must  search. — In  or- 
dinary practice,  a  person  who  relies  upon  his  own  examination 
of  the  records  will  feel  perfectly  satisfied  with  the  grantor's 
title,  if  he  finds  that  title  vested  in  him  at  a  particular  date,  and 
nothing  occurring  subsequently  to  affect  it.  Such  purchaser 
will  not  generally  search  the  records  to  ascertain  if,  anterior 
to  the  acquisition  of  title,  the  grantor  had  not  made  some 
transfer  of  it.  The  interesting  question  presents  itself  of  how 
far  back  it  is  the  duty  of  an  intending  purchaser  to  search  for 
conveyances  from  his  grantor.  May  he  act  on  the  assump- 
tion that  no  conveyances  have  been  made  by  the  grantor  prev- 
iously to  the  time  that  he  obtained  title,  or  is  he  compelled  to 
search  beyond  this  period?  The  authorities  do  not  afford  a 
positive  and  unanimous  answer  to  this  question.  On  one  hand, 
the  rule  announced  by  the  Supreme  Court  of  Missouri  is,  that 
a  purchaser  must,  at  his  risk,  inquire  into  the  condition  of  the 
record  title  of  his  grantor,  and  will  be  charged  with  construe- 


CHAP.    XXII.]  REGISTRATION    OF    DEEDS.  1329 

tive  notice  of  all  conveyances  made  by  him  affecting  the  title, 
which  have  been  duly  recorded.  The. court  applied  this  rule 
in  a  case  where  a  person,  having  a  bond  for  a  deed,  sold  and 
assigned  it  to  another,  who,  in  turn,  conveyed  it  to 
a  third  person,  whom  we  will  designate  as  A.  The 
second  holder  of  the  bond  however,  conveyed  in 
trust  all  his  right,  title,  and  interest  in  the  premises  to 
secure  a  portion  of  money  due  to  his  immediate  grantor  be- 
fore he  conveyed  his  interests  to  A,  the  third  party.  This 
deed  of  trust  was  duly  recorded  prior  to  the  purchase  by  A. 
The  latter  paid  the  amount  due  upon  the  bond  to  the  original 
grantor  and  obtained  a  deed.  A  sale  was  had  under  the  trust 
deed,  and  the  premises  were  purchased  by  a  person  whom  we 
will  designate  as  B.  The  controversy  was  between  A  and  B. 
B,  the  purchaser  at  the  trustee's  sale,  tendered  to  A  the  amount 
paid  by  him  to  the  original  grantor  with  the  accrued  interest, 
and  asked  that  A  might  be  divested  of  title,  and  the  same  be 
vested  in  him.  The  court  held,  that,  although  at  the  time  the 
deed  of  trust  was  made,  the  grantor  therein  had  vested  in  him- 
self no  title,  still  subsequent  purchasers  were  charged  with 
constructive  notice  from  the  fact  that  it  was  recorded;  and 
said  of  A,  that  if  he  had  "searched  the  records  as  a  prudent 
man  should,  he  must  have  acquired  actual  knowledge  of  the 
deed  and  its  contents,  as  shown  by  the  record.  If  he  neglected 
this  reasonable  precautionary  search,  the  consequences  of  that 
neglect  he  must  bear.  It  w^ould  be  unjust  to  visit  them  upon 
an  innocent  third  party."  ' 

•Digman   v.    McCollum,    47    Mo.  to    be    afifected    with    constructive 

372,  377.     Currier,  J.,  delivered  the  notice  from  the  fact  that  the  instru- 

opinion  of  the  court  and  remarked :  ment  was  duly  recorded.     The  gen- 

"The  deed  was  on  record,  and  the  eral  rule  on  this  subject  undoubt- 

defendant,   according  to  the  plain-  edly   is,  that  a  purchaser  must,  at 

tiff's    view,    must    be    presumed    to  his  own  peril,  inquire  into  the  state 

have  searched  the  records  and  come  of  the  grantor's  title,  since  he  will 

to  a  knowledge  of  the  contents  of  be    affected    with    constructive    no- 

the  deed.    The  defendant  is  sought  tice   of   all  duly   recorded   convey- 
Deeds.  VoL  H.— 84 


1330 


THE    LAW    OF    DEEDS. 


[chap.  XXIL 


§  724.  Correct  rule. — On  the  other  hand,  it  is  held 
that  a  purchaser  is  not  charged  with  constructive  notice  of 
deeds  made  by  his  grantor  before  he  acquired  title.  This  rule, 
we  believe,  is  sustained  by  the  weight  of  authority,  and  may 
be  declared  to  be  the  general  principle  supported  by  the  de- 


ances  by  his  grantor  affecting  that 
title.  I  am  aware  of  no  exception 
to  this  rule,  although  it  has  repeat- 
edly been  decided  that  a  purchaser 
is  not  affected  with  constuctive  not- 
tice  of  anything  that  does  not  lie 
within  the  course  of  the  title  with 
which  he  is  dealing,  or  that  is  not 
in  some  way  connected  with  it;  or, 
as  Judge  Scott  expressed  it  in 
Crockett  v.  Maguire,  10  Mo.  34,  the 
'registry  of  a  deed  is  only  evidence 
of  notice  to  after-purchasers  from 
the  same  grantor';  that  is,  from 
the  grantor  in  the  registered  deed. 
In  the  case  now  before  the  court, 
Williams,  the  grantor  in  the  re- 
corded deed  of  trust,  was  the  de- 
fendant's vendor,  as  respects  the 
equitable  title  to  the  premises  in 
contest.  That  title  passed  from 
him  to  the  defendant  in  virtue  of 
the  transaction  between  them;  that 
is,  by  the  sale,  receipt  of  the  pur- 
chase money,  and  delivery  of  the 
bond.  Had  Williams  passed  the 
title  by  deed,  he  would  have  been 
the  defendant's  technical  grantor, 
as  well  as  vendor.  But  the  form 
of  the  conveyance  does  not  affect 
the  substance  of  the  transaction. 
Williams  had  an  interest  in  the 
property  to  convey.  He  still  held 
the  equitable  title,  subject  to  the 
encumbrances,  for  the  deed  of  trust 
had  not  then  been  foreclosed.  That 
title  he  passed  to  and  vested  in  the 
defendant    1$  he  not  to  be  regard- 


ed as  the  grantor  of  that  interest? 
As  between  Williams  and  the  de- 
fendant, they  were  dealing  with 
the  equitable  title  and  nothing  else. 
As  respected  the  recorded  condition 
of  that  title,  was  it  not  as  much  the 
business  of  the  purchaser  to  search 
the  record  as  though  he  had  been 
negotiating  for  the  legal  title? 
Where  is  the  difference  in  prin- 
ciple? ....  If^the  defendant 
searched  the  record  of  deeds  with 
common  prudence  and  care,  he 
must  have  found  the  deed  of  trust 
under  which  the  plaintiff  claims,  and 
thus  come  to  a  knowledge  of  its 
contents.  It  is  no  objection  to  this 
view  that  Williams  had  vested  in 
himself  no  title  of  record.  That 
happens  more  or  less  frequently  in 
regard  to  legal  as  well  as  equitable 
estates.  Titles  are  acquired  as  well 
by  adverse  possession  as  by  deed. 
So,  a  party  may  hold  a  title  in  fee 
under  an  unrecorded  deed.  If  a 
party  has  in  fact  a  title,  whether  of 
record  or  not,  he  may  encumber  it, 
and  that  may  be  shown  by  the 
record.  Prudent  men  will  make 
the  proper  search  preliminary  to 
their  purchases.  The  law  presumes 
that  they  do  so,  and  courts,  as  has 
already  been  remarked,  act  upon 
that  presumption.  This  is  the  un- 
disputed doctrine  in  relation  to 
legal  titles,  and  we  are  furnished 
with  no  decided  case,  dictum,  or 
reason,    against    applying    the    rule 


CHAP.    XXII.]  REGISTRATION    OF    DEEDS.  1331 

cided  cases.'  One  having-  an  unrecorded  contract  for  the  pur- 
chase of  a  tract  of  land  executed  a  mortgage,  which  was  placed 
on  record.  The  mortgagor  subsequently  acquired  the  title  by 
deed  from  his  vendor,  and  then  sold  the  premises  to  another, 
who  had  his  deed  duly  recorded.  It  was  held,  that  the  regis- 
tration of  the  mortgage  having  occurred  before  the  records 
disclosed  title  in  the  mortgagor,  was  not  constructive  notice 
to  the  second  grantee,  who  purchased  the  property  after  the 
title  had  been  transferred  to  his  grantor.' 

§  724a.  Admission  in  evidence  of  copy  of  record  from 
other  States. — Many  States  have  statutes  providing  that 
copies  of  the  record  of  conveyances,  when  executed  and  ac- 
knowledged with  certain  formalities,  may  be  received  in  evi- 
dence. But  in  the  absence  of  such  legislation,  they  may  be 
received  in  evidence  under  the  provisions  of  the  statutes  of 
the  United  States,  and  upon  compliance  with  their  require- 
ments. The  Constitution  of  the  United  States  declares  that: 
"Full  faith  and  credit  shall  be  given  in  each  State  to  the  public 
acts,  records,  and  judicial  proceedings  of  every  other  State. 
And  the  Congress  may  by  general  laws  prescribe  the  manner 
in  which  such  acts,  records,  and  proceedings  shall  be  proved 
and  the  effect  thereof."  ^  The  first  statute  passed  by  Con- 
gress to  give  this  act  effect  applied  only  to  judicial  proceed- 
ings, and  under  it  the  Federal  courts  held  that  they  were 
obliged  tP  give  the  judgments  of  the  State  courts  the  same 
faith  and  credit  that  the  courts  of  one  State  are  obliged  to 
give  to  the  judgments  of  the  courts  of  other  States.^     The 

lo   equitable  as   well  as  legal  titles  St.    551 ;    Doswell    v.    Buchanan,    3 

and  interests."  Leigh,  365,  23  Am.  Dec.  280;  Het- 

'''  Farmers'  Loan  and  Trust  Co.  v.  zel  v.  Barber,  69  N.  Y.  1. 

Maltby,    8    Paige,    361 ;    Losey    v.  ^  Farmers'    Loan   and    Trust    Co. 

Simpson,  3  Stockt.  Ch.  246;  Calber  v.  Maltby,  8  Paige,  N.  Y.  36L 

V.  Chapman,  52  Pa.  St.  359,  91  Am.  »  Const.  U.  S.  Art.  IV.  Sec.  1. 

Dec.  163 ;  Page  v.  Waring,  76  N.  Y  1  Cooper  v.  Newell,  173  U.  S.  567. 
463;  Buckingham  v.  Hanna,  2  Ohio 


1332 


THE   LAW    OF   DEEDS. 


[chap.  xxn. 


object  of  this  constitutional  provision  was  to  require  that  the 
same  effect  should  be  given  by  the  courts  of  one  State  to  the 
public  acts  of  every  State  that  they  possessed  by  law  and  usage 
at  home.^  Inquiry,  however,  is  not  prevented  into  the  juris- 
diction of  the  court  in  which  the  judgment  is  given,  or  into 
the  facts  which  by  law  are  essential  to  confer  jurisdiction.' 
But  if  the  court  rendering  the  judgment  had  jurisdiction,  and 
personal  service  was  had  upon  the  defendant,  or  if  his  property 
was  lawfully  attached,  its  judgment  is  entitled  to  as  much 
force  and  effect,  in  the  court  of  another  State,  as  it  has  in 
the  State  in  which  it  was  made.*  In  other  words,  the  rule  is 
one  of  evidence  rather  than  jurisdiction.*  As  a  matter  of 
pleading,  protection,  under  this  clause,  must  be  pleaded  when 
reliance  is  placed  upon  it,^  and  the  courts  of  one  State  will 
not  give  a  greater  effect  to  the  judgment  of  another  State  than 
the  courts  of  the  latter  State  give.'^  The  judgments  of  other 
States  are  between  the  parties  conclusive  proof  of  the  rights 
determined ; '  but,  while  they  bind  the  parties,  they  need  not 
necessarily  be  followed  as  precedents  in  other  cases.^  To  se- 
cure an  execution  on  the  judgment  a  new  suit  is  necessary,^ 
and  an  inquiry  can  be  made  whether  the  judgment  is  impeach- 


*  Chicago  etc.  R.  Co.  v.  Wiggins 
Ferry  Co.,  119  U.  S.  622,  30  L.  ed. 
522. 

3  Simmons  v.  Saul,  138  U.  S.  448, 
34  L.  ed.  1059.  See,  also,  Thor- 
man  v.  Frame,  176  U.  S.  356,  44  L. 
ed.  503. 

*  Allison  V.  Chapman,  19  Fed. 
448;  Hanley  v.  Donoghue,  116  U. 
S.  3,  29  L.  ed.  536;  Cheever  v.  Wil- 
son, 9  Wall.  (U.  S.)  123,  19  L.  ed. 
608. 

5  Wisconsin  v.  Pelican  Ins.  Co., 
127  U.  S.  291,  32  L.  ed.  243.  See, 
also,  Clifford  v.  Williams,  131  Fed. 
105 ;  Anglo-American  Provision  Co. 


V.  Davis  Provision  Co.  No.  1,  191 
U.  S.  374,  48  L.  ed.  227;  Israel  v. 
Israel,   130  Fed.  237. 

6  Wabash  R.  Co.  v.  Flannigan, 
192  U.  S.  37,  48  L.  ed.  331. 

'  Board  of  Public  Works  v.  Col- 
umbia College,  17  Wall.  521,  21  L. 
ed.  687. 

8  Huntington  v.  Atrill,  146  U.  S. 
657,  36  L.  ed.  1123;  Mills  v.  Duryee, 
7  Cranch,  485,  3  L.  ed.  413. 

^  Chicago  etc.  R.  Co.  v.  Wiggins 
Ferry  Co.,  108  U.  S.  18,  27  L.  ed. 
636,  affirming  11  Fed.  383. 

1  Cole  v.  Cunningham,  133  U.  S 
112,  33  L.  ed.  541. 


CHAP.    XXII.]  REGISTRATION    OF    DEEDS.  1333 

able  for  fraud,^  as  well  as  whether  the  judgment  is  responsive 
to  the  issues  tendered  by  the  pleadings.^  Such  j-udgments  are 
conclusive  only  on  their  merits,  and  it  is  competent  for  a  State 
to  prescribe  a  statute  of  limitations  within  which  they  must  be 
enforced.*  But  still  a  reasonable  time  must  be  allowed  for 
that  purpose.^ 

§  724b.  Statute  of  the  United  States  as  to  admission 
of  copy  of  record. — In  1804  Congress  passed  another 
statute  which  prescribed  the  manner  of  proving  records  other 
than  judicial,  and  this  statute  is  now  embraced  in  the  Revised 
Statutes  and  declares:  "All  records  and  exemplifications  of 
books,  which  may  be  kept  in  any  public  office  of  any  State 
or  Territory,  or  of  any  country  subject  to  the  jurisdiction  of 
the  United  States,  not  appertaining  to  a  court,  shall  be  proved 
or  admitted  in  any  court  or  office  in  any  other  State  or  Terri- 
tory, or  in  any  such  country,  by  the  attestation  of  the  keeper 
of  the  said  records  or  books,  and  the  seal  of  his  office  annexed, 
if  there  be  a  seal,  together  with  the  certificate  of  the  presiding 
jusice  of  the  court  of  the  county  parish,  or  district  in  which 
such  office  may  be  kept,  or  of  the  governor,  or  secretary  of 
state,  the  chancellor  or  keeper  of  the  great  seal,  of  the  State, 
or  Territory,  or  country,  that  the  said  attestation  is  in  due 
form  and  by  the  proper  officers.  If  the  said  certificate  is  given 
by  the  presiding  justice  of  a  court,  it  shall  be  further  authen- 
ticated by  the  clerk  or  prothonotary  of  the  said  court,  who 
shall  certify,  under  his  hand  and  the  seal  of  his  office,  that  the 
said  presiding  justice  is  duly  commissioned  and  qualified;  or,  if 
given  by  such  governor,  secretary,  chancellor,  or  keeper  of  the 
great  seal,  it  shall  be  under  the  great  seal  of  the  State,  Terri- 

2  Cole  V.  Cunningham,  133  U.  S.  ^  Lamb  v.  Powder  River  Live 
112,  33  L.  ed.  541.  Stock  Co.,  Q  L.R.A.  558,  132  Fed. 

3  Reynolds  V.  Stockton,  140  U.  S.  Rep.  442;  Keyser  v.  Lowell,  \\l 
264,  35  L.  ed.  467.  Fed.  Rep.  400. 

*  M'Elmoyle    v.    Cohen,    13    Pet. 
328.  10  L.  ed.  185. 


1334 


THE    LAW    OF    DEEDS. 


[chap.   XXIL 


tory,  or  country  aforesaid  in  whicli  it  is  made.  And  the  said 
records  and  exemplifications,  so  authenticated,  shall  have  such 
faith  and  credit  given  to  them  in  every  court  and  office  within 
the  United  States  as  they  have  by  law  or  usage  in  the  courts 
of  the  State,  Territory,  or  country,  as  aforesaid,  from  which 
they  are  taken."  ^  Congress  has  the  constitutional  power  to 
pass  such  a  statute,  because  the  provision  of  the  constitution 
confers  authority  to  prescribe  rules  of  evidence  not  only  as  to 
judicial  acts  and  records,  but  also  as  to  all  other  official  rec- 
ords.' 


§  724c.     What  is  a  record  under  this  statute. — It  may 

be  stated,  as  a  general  rule,  that,  within  the  meaning  of  this 


6  R.  S.  U.  S.  §  906.  Section  907 
of  the  Revised  Statutes  relates  to 
recoveries  of  any  foreign  govern- 
ment relating  to  the  title  to  lands 
claimed  by  or  under  the  United 
States  and  is  as  follows :  "It  shall 
be  lawful  for  any  keeper  or  person 
having  the  custody  of  laws,  judg- 
ments, orders,  decrees,  journals, 
correspondence,  or  other  public 
documents  of  any  foreign  govern- 
ment or  its  agents,  relating  to  the 
title  to  lands  claimed  by  or  under 
the  United  States,  on  the  appli- 
cation of  the  head  of  one  of  the 
Departments,  the  Solicitor  of  the 
Treasury,  or  the  Commissioner  of 
the  General  Land  Office,  to  authen- 
ticate copies  thereof  under  his  hand 
and  seal,  and  to  certify  them  to  be 
correct  and  true  copies  of  such 
laws,  judgments,  orders,  decrees, 
journals,  correspondence,  or  other 
public  documents,  respectively;  and 
when  such  copies  are  certified  by 
an  American  minister  or  consul,  un- 
der his  hand  and  seal  of  office,  to 
be  true  copies  of  the  originals,  they 
shall  be  sealed  up  by  him  and  re- 


turned to  the  Solicitor  of  the  Treas- 
ury, who  shall  file  them  in  his  of- 
fice, and  cause  them  to  be  recorded 
in  a  book  to  be  kept  for  that  pur- 
pose. A  copy  of  any  such  law, 
judgment,  order,  decree,  journal, 
correspondence,  or  other  public 
document,  so  filed,  or  of  the  same 
so  recorded  in  said  book,  may  be 
read  in  evidence  in  any  court,  where 
the  title  to  land  claimed  by  or  un- 
der the  United  States  may  come  in- 
to question,  equally  with  the  orig- 
inals." R.  S.  U.  S.  sec.  907.  Where 
it  is  the  duty  of  a  foreign  officer  to 
record  certain  documents  his  certifi- 
cate is  generally  admissible  in  evi- 
dence, but  as  to  other  matter  it  is 
not  generally  competent.  Succes- 
sion of  Justices,  47  La.  Ann.  302, 
16  South.  841.  Unless  a  statute 
expressly  or  impliedly  so  provides 
a  certificate  of  a  consul  is  not  evi- 
dence between  third  persons.  Levy 
v.  Burley,  2  Sumn.   (U.  S.)  355. 

7  Chase  v.  Caryl,  57  N.  J.  L.  545, 
31  Atl.  1024;  Wilcox  v.  Bergman, 
96  Minn.  219,  5  L.R.A.(N.S.)  938, 
104  N.  W.  955. 


CHAP.    XXII.]  REGISTRATION    OF    DEEDS.  1335 

Statute,  every  document  of  a  public  nature,  whose  removal 
would  produce  inconvenience,  and  which  a  party  has  a  right 
to  inspect,  may  be  proven  by  a  duly  authenticated  copy.  If, 
under  the  statute  of  a  State,  only  an  abstract  of  a  mortgage 
is  received,  the  record  of  such  abstract  when  authenticated  ac- 
cording to  the  statute  of  the  United  States  is  competent  evi- 
dence.* The  registry  of  the  original  deed,  however,  must  be 
authorized  by  law.^  This  act  of  Congress  gives  the  record  of 
deeds  the  force  of  evidence  everywhere,  when  certified  as  re- 
quired.^ If  the  officer  recording  a  deed  has  no  power  to 
record  it,  he  cannot  certify  to  a  copy.^  In  Alabama,  a  certi- 
fied copy  of  a  deed  conveying  lands  in  Georgia,  notwithstand- 
ing it  is  authenticated  as  prescribed  by  the  act  of  Congress, 
cannot  be  received  in  evidence  without  proving  the  loss  of  the 
original,  because  the  statute  of  Georgia  provides  that  in  the 
case  of  the  loss  of  a  recorded  deed,  a  copy  is  admissible  in 
evidence,  if  the  court  is  satisfied  that  its  loss  has  occurred, 
and  it  would  not  without  such  proof  be  admissible  in  evidence 
in  Georgia.^     It  is  held  in  Missouri  that  a  copy  of  a  record 

8  Garrigues  v.  Harris,  17  Pa.  St.  Johnston  v.  Griswold,  8  W.  Va.  240. 

344.     "The     act     of     Congress     of  The  county  court  of  Virginia  or  its 

March    27,    1804,"    said    the    court,  clerk   at   a  .  certain   period    had    no 

"gives  to  this  office  copy  the  effect  power  to  admit  to  record  a  power 

it  would  have  in  the  courts  of  New  of  attorney,  executed  in  Kentucky, 

Jersey,   and   necessarily  draws  into  where  it  was  acknowledged  before 

cognizance   here,   as   a   question   of  a  notary  public  and  certified  to  by 

domestic    law    under    our    govern-  him.    In   such   a   case,    a   copy   of 

ment,  the  law   and   usages   of  that  the  document  authenticated  by  the 

state.     We  are  required  to  take  ju-  clerk  is  not  competent  evidence  in 

dicial  notice  that  the  recording  of  lieu    of   the   original:     Johnston   v. 

an    abstract   of    a   mortgage    is    all  Griswold,  8  W.  Va.  240. 

that   there   is   enjoined   and   that  a  i  Pennel  v.  Weyant,  2  Har.  (Del.) 

certified  copy  of  that  record  is  com-  502. 

patent    evidence    in    that    state.     It  ^  Mitchell  v.  Mitchell,  3  Stew.  & 

is     therefore     competent     evidence  P.  (Ala.)  81. 

here,    when    authenticated,    as    this  ^  Whaun  v.  Atkinson,  84  Ala.  592, 

document  was,  according  to  the  act  4  South.  681.     See  for  other  cases 

of  Congress."  in  Alabama  stating  condition  under 

*  Brown   v.    Edson,   23   Vt.   435 ;  which  authenticated  copies  may  be 


1336 


THE    LAW    OF    DEEDS. 


[chap.    XXII. 


in  another  State  of  a  deed  is  not  admissible  in  evidence,  un- 
less it  be  shown  that  such  copy  is  evidence  by  the  laws  of  the 
State  in  which  the  deed  is  recorded.*  The  Wisconsin  statute 
provides  that  all  instruments  relating  to  real  property  in  that 
State,  which  before  its  passage,  had  been  recorded  in  the  office 
of  a  register  of  deeds,  purporting  to  have  been  proven  without 
the  state,  and  having  substantially  the  ordinary  form  of  cer- 
tificate shall  be  considered  as  having  been  proved  in  accord- 
ance with  the  laws  of  their  place  of  proof  and  may  be  read 
in  evidence  in  like  manner  and  with  the  same  effect  as  the 
originals.  The  statute  also  provides  that  the  record  of  such 
documents  may  be  read  with  the  same  effect  as  the  originals. 
Under  this  statute  it  is  held  that  the  record  of  a  power  of  at- 
torney which  has  been  attested,  acknowledged,  and  recorded  in 
another  State,  is  to  be  deemed  without  proof  of  the  laws  of 
the  State  in  which  it  was  recorded,  as  priiiia  facie  competent 
in  proving  a  link  in  a  chain  of  title.^ 


received  in  evidence :  Swift  v.  Fitz- 
hugh,  9  Port.  39 ;  Martin  v.  Martin, 
22  Ala.  86 ;  Tatum  v.  Young,  1  Port. 
298;  Lee  v.  Mathews,  10  Ala.  682, 
44  Am.  Dec.  498;  Powell  v.  Knox, 
16  Ala.  364. 

*  Clardy  v.  Richardson,  24  Mo. 
295.  Said  the  court:  "It  may  be 
remarked,  in  relation  to  the  copy 
of  the  record  of  the  deed  made  in 
Tennessee,  that  it  does  not  appear 
from  any  thing  before  us  that  there 
was  any  law  in  Tennessee  which 
made  such  copies  evidence.  After 
our  statute  of  conveyances  in  rela- 
tion to  lands  was  passed  by  which 
they  were  required  to  be  recorded, 
it  was  held  that  copies  of  the  rec- 
ord were  not  evidence  of  the  exe- 
cution of  the  deed  without  the  war- 
rant of  the  statute  making  them 
such  (Miller  v.  Wells,  S  Mo.  6). 
The  act  of  27th  March,  1804,  passed 


by  Congress,  in  relation  to  this 
subject,  and  under  which  the  copy 
must  be  read  (if  it  is  read  at  all), 
enacts  that  copies  of  such  records 
shall  only  have  the  force  and  effect 
in  a  sister  state  that  they  had  in 
the  state  where  they  were  made. 
If,  by  our  law,  such  copies  of  our 
records  would  not  be  evidence  in 
our  courts,  like  records  from  our 
sister  states  of  course  could  not  be 
evidence  here."  See,  also,  Peter- 
man  V.  Laws,  6  Leigh.  (Va.)  523. 
5  Slaughter  v.  Bernards,  88  Wis. 
Ill,  59  N.  W.  576.  See,  generally 
for  other  cases  relating  to  various 
kinds  of  records :  Barcello  v.  Hap- 
good,  118  N.  C.  712,  24  S.  E.  13-t; 
State  V.  Pagels,  92  Mo.  300,  4  S. 
W.  931 ;  Florsheim  v.  Fry,  109  Mo. 
App.  487,  84  S.  W.  1023 ;  James  v. 
Kirk,  29  Miss.  206 ;  Tucker  v.  Peo- 
ple, 117  III  91,  7  N.  E.  51;  Munk- 


CHAP.    XXII.]  REGISTRATION    OF    DEEDS.  1337 

§  724'd.     Requirements  of  statute  to  be  observed. — In 

order  that  the  copy  of  the  record  may  be  received  in  evidence, 
the  requirements  of  the  statute  as  to  its  authentication  must 
be  observed.^  Ahhough  the  certificate  of  the  presiding  judge 
of  a  county  that  a  copy  of  a  deed  to  be  used  in  another  state 
declares  that  it  was  "duly  and  properly  authenticated  in  due 
form  of  law"  yet  unless  it  also  states  "by  the  proper  officer," 
it  is  not  sufficient  to  allow  the  copy  to  be  received  in  evidence.'^ 
It  must  be  shown  that  it  is  required  by  the  laws  of  the  State 
where  the  instrument  is  recorded,  that  its  recordation  is  neces- 
sary before  an  office  copy  will  be  admitted  in  evidence  in  an- 
other State.®  If  it  does  not  appear  that  the  officer  taking  the 
acknowledgment  was  authorized  by  the  laws  of  his  State  to 
take  acknowledgments,  the  copy  of  the  instrument  is  not  prop- 
erly proven.^  A  certificate  by  a  justice  of  the  peace  is  not 
sufficient.  It  should  be  by  the  judge,  chief  justice,  or  presid- 
ing magistrate  of  the  court. ^  Nor  is  a  certificate  of  the  clerk 
of  the  court  without  the  attestation  of  the  presiding  judge 

res   V.   M'Caskill,   64   Kan.   516,  68  Key  v.  Vaughn,  15  Ala.  497;  Rich- 

Pac.  42;  Dickson  v.  Grissom,  4  La.  ards   v.    Hicks,    1    Overt.    (Tenn.) 

Ann.    538;    Norwood    v.    Green,    5  207;     Hollister     v.     Armstrong,     5 

Mart.   (N.  S.)    175;  Leggo  v.  New  Houst.   (Del.)   46;   Pennel  v.  Wey- 

Orleans  Canal  Co.,  3  La.  Ann.  138;  ant,  2  Harr.    (Del.)   501;  Moore  v. 

Francis  v.   Scott,  5   La.   Ann.  668;  Ann,   9   B.    Mon.    (Ky.)    36;    Rey- 

Graham  v.   Williams,  21   La.   Ann.  nolds  v.  Rowley,  3  Rob.   (La.)  201, 

594;  De  Riesthal  v.  Walton,  66  Md.  38  Am.  Dec.  233;  Parham  v.  Mur- 

470,  8  Atl.  462;  Bryant  v.  Kelton,  phee,   4    Mart.    (La.)    N.    S.    200; 

1  Tex.  433;  Watrous  v.  McGrew,  16  Kidd  v.  Manley,  28  Miss.  156;  Pe- 

Tex,     512;     Mornson    v.    Wiggins  termans   v.    Laws,   6   Leigh    (Va.) 

Ferry  Co.,  47   Mo.  521;   Richmond  523. 

V.  Patterson,  3  Ohio  368;  Moore  v.  ''Hollister  v,  Armstrong,  5  Houst. 

Ann,  9  B.  Mon.  36;  Condit  v.  Black-  (Del.)  46. 

well,  19  N.  J.  Eq.  193 ;  Trinity  Co.  »  Mitchell  v.  Mitchell,  3  Stew.  & 

Lumber    Co.    v.    Pinckard,    4   Tex.  P.  81. 

Civ.  App.  671,  23  S.  W.  720,  1015.  » McCormick    v.    Evans,    33    111. 

^  James  v.  James,  35  Wash.  650,  327. 

77  Pac.  1080 ;   State  v.  Kniffen,  44  i  Waller  v.  Cralle,  8  B.  Mon.  (47 

Wash.  485,  87  Pac.  387;  Taylor  v.  Ky.)   11. 
McKee,  118  Ga.  874,  45  S.  E.  672; 


1338 


THE    LAW    OF    DEEDS. 


[CIIAP.    XXII. 


sufficient.^  "Records  from  public  offices  of  sister  States  other 
than  courts,  must  be  certified  in  accordance  with  the  United 
vStates  statutes,  to  be  admissible  in  evidence  in  the  courts  of 
this  State."  ^  Accordingly,  a  mere  certificate  of  the  keeper 
of  the  record  in  another  State  given  under  his  hand  and  seal 
is  not  sufficient.*  Provided  that  the  judge  certifies  that  the 
attestation  is  in  due  form,  the  form  of  attestation  used  by 
the  clerk  is  immaterial,^  nor  is  it  necessary  that  the  signature 
of  the  clerk  should  be  his  full  Christian  name.^  The  proper 
seal  of  office  should  be  attached  to  the  certificate  of  the  officer 
who  certifies  that  the  custodian  of  the  record  is  the  proper 
officer  to  have  its  custody."' 

§  724e.  Not  the  only  method  of  proof. — While  the  act 
of  Congress  provides  a  mode  of  proving  a  record  from  an- 
other State,  it  is  not  exclusive,  but  such  record  may  also  be 
proven  by  the  statutes  of  the  State  in  which  it  is  offered  in 
evidence.*     In  speaking  of  the  general  purpose  of  the  Federal 


2  Johnson  v.  Rannels,  6  Mart.  (N. 
S.)  621.  See,  also,  Paca  v.  Button, 
4  Mo.  371 ;  Drummond  v.  Magrud- 
er,  9  Cranch,  122,  3  L.  ed.  677. 

3  James  v.  James,  35  Wash.  650, 
n  Pac.  1080. 

*  James  v.  James,  35  Wash.  650, 
n  Pac.  1080. 

5  Crawford  v.  Simonton,  7  Port. 
(Ala.)    110. 

6  Harryman  v.  Roberts,  52  Md. 
64. 

'Phillips  V.  Flint,  3  La.  146; 
Brock  V.  Burchett,  2  Swan  (Tenn.) 
27. 

sWillock  V.  Wilson,  178  Mass. 
68,  59  N.  E.  757 ;  Parke  v.  Williams, 
7  Cal.  247;  Dusenberry  v.  Abbott, 
1  Neb.  (Unof.)  101,  95  N.  W.  466; 
Hawes  v.  State,  88  Ala.  39,  7  So. 
302;  Qarden  City  Sand  Co.  v.  Mil- 


ler, 157  111.  225,  41  N.  E.  753;  Ord- 
way  V.  Conroe,  4  Wis.  45;  Coffee 
V.  Neely,  2  Heisk.  304;  Johnson  v. 
Martin,  68  Miss.  330,  8  South.  847 ; 
Re  Ellis,  55  Minn.  401,  23  L.R.A. 
287,  56  N.  W.  1056,  43  Am.  St. 
Rep.  514;  Latterett  v.  Cook,  1 
Iowa,  1,  63  Am.  Dec.  428;  Pickett 
V.  Boyd,  11  Lea,  498;  Otto  v. 
Trump,  115  Pa.  425,  8  Atl.  1^; 
Ellsworth  V.  Barstow,  7  Watts,  314; 
Petty  V.  Hayden  Bros.,  115  Iowa, 
212;  Thrasher  v.  Ballard,  Zl  W.  Va. 
285,  10  S.  E.  411,  25  Am.  St.  Rep. 
894;  People  ex  rel.  Johnson  v.  Mil- 
ler, 195  111.  621,  63  N.  E.  504;  Tom- 
lin  V.  Woods,  125  Iowa,  367,  101 
N.  W.  135;  Kean  v.  Rice,  12  S.  & 
R;  203;  St.  Louis  Expanded  Metal 
Fireproofing  Co.  v.  Beilharz,  (Tex. 
Civ.  App.)   88  S.  W.  512;   Ritchie 


CHAP.    XXTI.]  REGISTRATION    OF    DEEDS.  1339 

statute,  in  a  case  where  a  foreign  judgment  was  involved, 
Mr.  Justice  Hammond  said  that  the  statute  was  passed  "for 
the  purpose  of  prescribing  the  kind  of  proof  of  the  existence 
of  a  record  in  one  State  upon  which  a  sister  State  might  insist 
before  it  could  be  called  upon  to  give  to  the  record  the  full 
faith  and  credit  imposed  by  the  federal  constitution;  and  it 
is  well  settled  that  the  method  of  authentication  therein  pre- 
scribed is  not  exclusive.  Neither  the  federal  constitution  nor 
the  statute  forbids  the  States  from  authorizing  the  proof  of 
records  in  other  modes  in  their  own  State  courts,  providing 
always,  of  course,  that  the  State  statute,  if  put  into  force,  shall 
not  have  the  effect  of  excluding  a  record  authenticated  accord- 
ing to  the  requirements  of  the  federal  statute."  '  The  act  of 
Congress  said  the  Supreme  court  of  Pennsylvania  "prescribes 
a  general  rule  which  makes  records  admissible  in  every  State, 
but  it  does  not  exclude  any  other  evidence  which  the  courts 
of  a  particular  State  may  deem  competent."  ^  Nor  is  the 
statute  of  the  United  States  to  be  construed  as  abolishing  the 
common  law  method  of  proving  records.^  Thus  a  copy  of  a 
deed  recorded  in  another  State  was  admitted  in  evidence  when 
it  was  proved  in  compliance  with  the  requirements  of  the  com- 
mon law,^  and  so  the  court  received  in  evidence  a  copy  of  a 
decree  of  divorce,  where  a  witness  testified  that  he  had  veri- 

V.     Carpenter,    2    Wash.     512,     26  *  State  of  Ohio  v.  Hinchman,  27 

Am.    St.    Rep.    877,    28    Pac.    380;  Pa.    St.    (3   Casey)    485;    Baker  v. 

Droop  V.  Ridenour,  11  App.  D.  C.  Field,  2  Yeates,  532;  Kean  v.  Rice, 

224;  Gardner  v.  Ladeer,  47  111.  211,  12  Serg.  &  R.  203. 

95  Am.  Dec.  487;  Sloan  v.  Wolfs-  2  Gar<len  City  Sand  Co.  v.  Miller, 

feld,    110    Ga.    70,    35    S.    E.    344;  157  111.  225,  41  N.  E.  753;  Good wyn 

Hawes  v.  State,  88  Ala.  39,  7  South.  v.  Goodwyn,  25  Ga.  203. 

302;  English  v.  Smith,  26  Ind.  445;  3  Smith   v.   Gillum,  80   Tex.    120, 

Knight    V.    Wall,    19    N.    C.     125;  15   S.  W.  794.     See,  also,  Frost  v. 

Kingman  v.  Cowles,  103  Mass.  283.  Wolf,  11  Tex.  455,    14  S.  W.  440, 

9  Willock    V.    Wilson,    178    Mass.  19  Am.  St.  Rep.  761 ;  Karr  v.  Jack- 

68,  59  N.   E.  757,   citing  1   Greenl.  son,  28   Mo.   316;   Hall   v.   Bishop, 

Ev.  §  505 ;  Kingman  v.  Cowles,  103  78  Ind.  370. 
Mass.  283. 


1340  THE    LAW    OF    DEEDS.  [cnAP.    XXII. 

fied  by  personally  examining  the  original.*  Likewise,  where 
it  becomes  necessary  to  prove  the  contents  of  a  record  relating 
to  the  British  army,  it  is  competent  to  show  by  means  of  a 
deposition  of  an  officer  who  has  the  possession  and  charge  of 
the  record,  that  its  removal  from  the  country  is  not  permitted. 
Upon  such  showing  a  copy  of  the  record  which  by  the  oath 
of  the  officer  appears  to  be  true  and  correct  may  be  received 
in  evidence.' 

*  Harvey  v.   Cummings,  68  Tex,  Miss.    174 ;    Peterman    v.    Laws,   6 

599,  5  S.  W.  513.     See,  also,  Otto  Leigh,  523. 

V.  Trump,  115  Pa.  425,  8  Atl.  786.  5  in  re  McClellan's  Estate,  20  S. 

See,    however,    Hope   v.    Hurt,    59  D.  498,  107  N.  W.  681. 


^li 


CHAPTER  XXIII. 


THE  DOCTRINE  OF   NOTICE. 


PART  I. 

§  743a. 
743b. 
744. 

THE    1 

GENERAL    RULES    OF    NOTICE, 

745. 

725. 

In    general. 

746. 

726. 

Forged  deeds. 

727. 

Notice  and  knowledge. 

1^1. 

728. 

Kinds  of  notice. 

729. 

Rumors. 

730. 

Same    subject    continued- 

748. 

Illustrations.  * 

749. 

731. 

Partnership  property. 

731a. 

Information     imparted     to 
purchaser  that  title  is  in 

750. 

one  partner. 

751. 

732. 

Information   must  be   from 

752. 

credible  source. 

753. 

733. 

Inadequacy  of  price. 

734. 

Statement    from    holder    of 

754. 

adverse  title. 

755. 

735. 

Information    given    by    re- 

corder. 

756. 

736. 

Time   of    payment   of   con- 
sideration. 

757. 

737. 

Intimate      relationship      or 
business  connections. 

758. 

738. 

Notice  of  a  trust. 

759. 

738a 

.  Designation    of    grantee    as 
trustee. 

739. 

Structures  upon  the  land. 

740. 

Searching    the    record    not 
alone  sufficient. 

741. 

Further  inquiry. 

742. 

Contradiction    of    informa- 

760. 

tion. 

761. 

743. 

What  is  due  inquiry. 

1341 

Due  diligence. 

How  notice  may  be  proven. 

Third  persons. 

Presumption  may  be  re- 
butted. 

Second  purchaser  without 
notice. 

Second  purchaser  with  no- 
tice from  bona  fide  pur- 
chaser. 

Former  owner  with  notice. 

Tenant  in  common  without 
notice. 

Notice  of  intention  to  exe- 
cute a   deed. 

Fraud  and  mistake. 

Negligence. 

Notice  of  right  of  way  from 
ordinance. 

Laying  down  sidewalk. 

Deed  from  surviving  wid- 
ow. 

Notice  of  lien. 

Exception  of  encumbrance 
in  covenant. 

Deed  modified  by  annexed 
schedule. 

Notice  from  title  deeds  not 
between  parties. 

PART  II. 

POSSESSION. 

Possession  as  notice. 
Possession      by      grantor — 
Comments. 


1342 


THE   LAW    OF   DEEDS. 


[chap.    XXIII. 


762.  View  that  possession  is  no- 

tice of  grantor's  rights. 

763.  Opposite     view— Possession 

not    notice    of    grantor's 
rights, 

764.  Comments. 

765.  Absolute  deed  and  grantor's 

possession     under     unre- 
corded defeasance. 

766.  Parol     evidence     to     show 

grantor's  right  of  posses- 
sion. 

767.  Absolute    deed    with    mort- 

gage for  support. 

768.  Residence  of   husband   and 

wife. 

769.  Character  of  possession. 

770.  Possession  under  one  kind 

of     right    as    notice    of 
other  rights. 

771.  Sign  of  real  estate  agent. 

772.  Possession  of  church. 
111.     Possession   distinct. 

774.  Possession   continuous. 

775.  Tenant's  possession  as   no- 

tice of  landlord's  title. 
775a.  Notice  from  clause  of  op- 
tion to  purchase  in  lease. 

776.  Comments. 

m.    An  inference  of  fact. 

PART  III. 


AGENCY. 

778.  Notice  to  an  agent. 

779.  Matter     material      to 

transaction. 

780.  Agent  for  both  parties. 

781.  Fraud  of  agent. 


the 


782.  Notice  to  a  partner. 

783.  Consulting   attorney. 

784.  Notice  to  trustee. 

785.  Agent  to  examine  title. 

786.  Advertisement  of  sale. 

787.  Resale  by  vendor. 

PART  IV. 

LIS   PENDENS. 

788.  Doctrine  of  lis  pendens. 

789.  Alienation    void    as   against 

judgment. 

790.  Subject  continued. 

791.  Grantee   of   party  to  parti- 

tion suit. 

792.  Purchaser  from  person  not 

a  party  to  suit. 
792a.  Unrecorded  deed. 

793.  Cross-complaint. 

794.  Principle  applies  also  to  ac- 

tions at  law. 

795.  Actions  of  ejectment. 

796.  Diligence  in  prosecution  of 

suit. 

797.  Continued. 

798.  Reasonable  diligence. 

799.  Rule  of  lis  pendens  not  fav- 

ored. 

800.  Effect  of  lis  pendens  on  at- 

torney's lien  for  fees. 

801.  Suit     must     affect     specific 

property. 

802.  "When     lis     pendens     com- 

mences. 

803.  Statutory  lis  pendens. 

804.  Effect  of  these  statutes. 

805.  Actual  notice. 


§  725.  In  general.— It  is  a  well-settled  rule,  both  in 
England  and  in  this  country,  that  subsequent  purchasers  who 
have  notice  of  a  prior  unrecorded  deed,  acquire  their  rights 
in  subordination  to  it.    They  are  affected  by  their  knowledge 


CHAP.    XXIII.]         THE    DOCTRINE    OF    NOTICE. 


1343 


of  its  existence  in  the  same  mode,  and  to  the  same  extent,  as  if 
the  deed  had,  prior  to  their  purchase,  been  properly  recorded.^ 


*  Le  Neve  v.  Le  Neve,  Amb.  436 ; 
Crealand  v.  Potter,  Law  R.  10  Ch. 
8;  Chadvvick  v.  Turner,  Law  R.  1 
Ch.  310;  Ford  v.  White,  16  Beav. 
120;  Davis  v.  Earl  of  Strathmore, 
16  Ves.  419;  Rolland  v.  Hart,  Law 
R.  6  Ch.  678;  Benham  v.  Keane,  3 
De  Gex,  F.  &  J.  318;  Finch  v.  Beal, 
68  Ga.  594;  Greaves  v.  Tofield,  Law 
R.  14  Ch.  D.  563 ;  Dunham  v.  Dey, 
15  Johns.  555,  8  Am.  Dec.  282;  Ca- 
been  v.  Breckenridge,  48  111.  91 
Brinkman  v.  Jones,  44  Wis.  498 
Britton's  Appeal,  9  Wright,  172 
Tuttle  V.  Jackson,  6  Wend.  213,  21 
Am.  Dec.  306;  Williamson  v. 
Brown,  15  N.  Y.  354;  Alaupin  v. 
Emmons,  47  Mo.  304;  White  v. 
Foster,  102  Mass.  375.  And  see 
Wyatt  V.  Barwell,  19  Ves.  435; 
Doe  V.  Allsop,  5  Barn.  &  Aid.  142; 
Hine  v.  Dodd,  3  Atk.  275 ;  Janvrin 
V.  Janvrin,  60  N.  H.  169;  Jolland  v. 
Stainbridge,  3  Ves.  478;  Brown  v. 
Volkenning,  64  N.  Y.  76;  Dey  v. 
Dunham,  2  Johns.  Ch.  182;  Bonner 
v.  Stephens,  60  Tex.  616;  Lawton 
v.  Gordon,  37  Cal.  202;  Jackson  v. 
Van  Valkenburg,  8  Cowen,  260 ; 
Tuttle  v.  Jackson,  6  Wend.  213,  21 
Am.  Dec.  306;  Bergeron  v.  Richard- 
ott,  55  Wis.  129;  Grimstone  v.  Car- 
ter, 3  Paige,  421,  24  Am.  Dec.  230; 
Fleming  v.  Burgin,  2  Ired.  Eq.  584 ; 
Crassen  v.  Swoveland,  22  Ind.  427 ; 
Wilson  v.  Hunter,  30  Ind.  466;  El- 
lis v.  Horrman,  90  N.  Y.  466;  Nor- 
cross  v.  Widgery,  2  Mass.  505 ;  Mc- 
Mechan  v.  Griffing,  3  Pick.  149,  15 
.Am.  Dec.  198;  Truesdale  v.  Ford, 
n  111.  210;  U.  S.  Ins.  Co.  v.  Shriv- 
er,  3  Md.  Ch.  381 ;  General  Life  Ins. 


Co.  v.  U.  S.  Ins.  Co.  10  Md.  517, 
69  Am.  Dec.  174;  Lamb  v.  Pierce, 
113  Mass.  72;  Clark  v,  Plumstead, 
11  111.  App.  57;  Allen  v.  Holding, 
29  Ga.  485;  Wyatt  v.  Elam,  19  Ga. 
335;  Poulet  v.  Johnson,  25  Ga.  403; 
Allen  V.  Holden,  32  Ga.  418;  Lee  v. 
Cato,  27  Ga.  637,  11  Am.  Dec.  746; 
Brown  v.  Wells,  44  Ga.  573;  Downs 
V.  Yonge,  17  Ga.  295 ;  Virgin  v. 
Wingfield,  54  Ga.  451;  Seabrook  v. 
Brady,  47  Ga.  650;  Bryant  v.  Booze, 
55  Ga.  438;  Williams  v.  Adams,  43 
Ga.  407;  Wimbish  v.  Montgomery 
Mut.  Building  &  Loan  Assn.,  69 
Ala.  575;  Helms  v.  May,  29  Ga.  121; 
Doe  v.  Roe,  25  Ga.  55 ;  Reynolds  v. 
Ruckman,  35  Mich.  80;  Hommel 
V.  Devinney,  39  Mich.  522;  Fitz- 
hugh  V.  Barnard,  12  Mich.  105; 
Munroe  v.  Eastman,  31  Mich.  283; 
Baker  v.  Mather,  25  Mich.  51;  Hos- 
ley  V.  Holmes,  27  Mich.  416;  Shot- 
well  V.  Harrison,  30  Mich.  179 ;  Cain 
V.  Cox,  23  W.  Va.  594;  Stetson  v. 
Cook,  39  Mich.  750;  Waldto  v.  Rich- 
mond, 40  Mich.  380;  Case  v.  Erwin, 
18  Mich.  434;  Barnard  v.  Campau, 
29  INIich.  162;  Sigourney  v.  Munn, 
7  Conn.  324;  Wheaton  v.  Dyer,  15 
Conn.  307;  Bank  of  New  Milford  v. 
New  Milford,  36  Conn.  94;  Blatch- 
ley  V.  Osborn,  33  Conn.  226;  Clark 
V.  Fuller,  39  Conn.  238;  Bush  v. 
Golden,  17  Conn.  594;  Hamilton  v. 
Nutt,  34  Conn.  501 ;  Kirkwood  v, 
Koester,  11  Kan.  471 ;  Jones  v.  Lap- 
bam,  15  Kan.  540;  Setter  v.  Alvey 
15  Kan.  157;  Greer  v.  Higgins,  20 
Comi.  430;  Johnson  v.  Clark,  18 
Conn.  157;  Lyons  v.  Bodenhamer, 
7    Conn.    455;    School    District    r. 


1344 


THE    LAW    OF    DEEDS. 


[chap.   XXIIl. 


Whatever  is  notice  enough  to  excite  attention  and  put  a  party 
on  guard  and  call  for  inquiry  is  notice  of  everything  to  which 


Taylor,  19  Conn.  287;  Bearing  v. 
Watkins,  16  Ala.  20 ;  Boyd  v.  Beck, 
29  Ala.  703;  Lambert  v.  Newman, 
56  Ala.  623;    Newsome  v.   Collins, 

43  Ala.  656;  Wyatt  v.  Stewart,  34 
Ala.  716;  Wallis  v.  Rhea,  10  Ala. 
451 ;  Corbett  v.  Clenny,  52  Ala.  480; 
Burch  V.  Carter,  44  Ala.  115;  De 
Vandal  v.  Malone's  Executors,  25 
Ala.  272;  Smith's  Heirs  v.  Branch 
Bank,  21  Ala.  125;  Dudley  v.  Wit- 
ter, 46  Ala.  664;    Ponder  v.   Scott, 

44  Ala.  241 ;  Johnson  v.  Thweatt, 
18  Ala.  741 ;  Campbell  v.  Roach,  45 
Conn.  667;  Hoole  v.  Attorney  Gen- 
eral, 22  Ala.  190;  Lindsay  v.  Veasey, 
62  Ala.  421 ;  Bernstein  v.  Humes,  60 
Ala.  582,  31  Am.  Rep.  52;  Chap- 
man V.  Holding,  60  Ala.  522;  Fair 
V.  Stevenot,  29  Cal.  486;  Galland  v. 
Jackman,  26  Cal.  79,  85  Am.  Dec. 
172;  Moss  v.  Atkinson,  44  Cal.  3; 
Jones  V.  Marks,  47  Cal.  242; 
O'Rourke  v.  O'Connor,  39  Cal.  442 ; 
Smith  V.  Yule,  31  Cal.  180,  89  Am. 
Dec.  167;  Thompson  v.  Pioche,  44 
Cal.  508;  Ricks  v.  Doe,  2  Blackf. 
346;  Paul  v.  Connersville  etc.  R.  R., 
51  Ind.  527,  530;  Wiseman  v.  Hutch- 
inson, 20  Lid.  40;  Croskey  v.  Chap- 
man, 26  Ind.  333 ;  Brose  v.  Doe,  2 
Ind.  666;  Kirkpatrick  v.  Caldwell's 
Administrators,  32  Ind.  299;  Hol- 
man  v.  Patterson's  Heirs,  29  Ark. 
357;  Stidham  v.  Mathews,  20  Ark. 
650,  659;  Follweiler  v.  Lutz,  102  Pa. 
St.  585;  Haskell  v.  The  State,  31 
Ark.  91;  Redden  v.  Miller,  95  111. 
336;  Erickson  v.  Rafferty,  79  111. 
209;  Frye  v.  Partridge,  82  111.  267; 
Shepardson  v.  Stevens,  71  111.  646; 
Ogden  V.  Haven,  24  111.  57;  Chica- 


go etc.  R.  R.  V.  Kennedy,  70  111. 
350;  Chicago  v.  Witt,  75  111.  211; 
Watson  V.  Phelps,  40  Iowa,  482; 
Jones  V.  Bamford,  21  Iowa,  217; 
Wilson  V.  Miller,  16  Iowa,  111; 
Smith  V.  Dunton,  42  Iowa,  48; 
Blanchard  v.  Ware,  43  Iowa,  530; 
Johnston  v.  Gwathmey,  4  Litt.  317, 
14  Am.  Dec.  135 ;  Hopkins  v.  Gar- 
rard, 7  Mon.  B.  312;  Mueller  v.  En- 
geln,  12  Bush,  441 ;  Honore  v.  Bake- 
well,  6  Mon.  B.  67,  43  Am.  Dec.  147; 
Thornton  v.  Knox,  6  Mon.  B.  74; 
Hardin  v.  Harrington,  11  Bush, 
367 ;  Forepaugh  v.  Appold,  17  Mon. 
B.  631;  Vanmeter  v.  McFaddin,  8 
Mon.  B.  442;  Roberts  v.  Grace,  16 
Minn.  126;  Doughaday  v.  Paine,  6 
Minn.  443;  Ross  v.  Worthington,  11 
Minn.  438,  88  Am.  Dec.  95 ;  Coy  v. 
Coy,  15  Minn.  119;  Rich  v.  Roberts, 
48  Me.  548;  Webster  v.  Maddox,  6 
Me.  256 ;  Hull  v.  Noble,  40  Me.  459, 
480;  Spofford  v.  Weston,  29  Me. 
140;  Butler  v.  Stevens,  26  Me.  484; 
Kent  V.  Plummer,  7  Me.  464 ;  Good- 
win v.  Cloudman,  43  Me.  577;  Mer- 
rill v.  Ireland,  40  Me.  569;  Porter 
v.  Sevey,  43  Me.  519;  Hanley  v. 
Morse,  32  Me.  287;  Smith  v.  Lam- 
beths,  IS  La.  Ann.  566;  Moore  v. 
Jourdan,  14  La.  Ann.  414;  Swan  v. 
Moore,  14  La.  Ann.  833;  Bell  v. 
Haw,  8  Martin,  N.  S.,  243;  Acer 
v.  Westcott,  46  N.  Y.' 384,  7  Am. 
Rep.  355;  Page  v.  Waring,  76  N. 
Y.  463 ;  Gibcrt  v.  Peteler,  38  N.  Y. 
165,  97  Am.  Dec.  785;  Griffith  v. 
Griffith,  1  Hoff.  Ch.  135;  Howard 
Ins.  Co.  V.  Halsey,  8  N.  Y.  271,  56 
Am.  Dec.  478;  Murrell  v.  Watson, 
1  Tenn.   Ch.  342;  Tharpe  v.  Dun- 


CHAP.    XXIII.]         THE    DOCTRINE    OF    NOTICE. 


1345 


such  inquiry  might  lead.    When  a  person  has  sufficient  in-for- 
mation  to  lead  him  to  a  fact  he  shaU  be  deemed  conversant  of 


lap,  4  Heisk.  674,  686;  Mara  v. 
Pierce,  9  Gray,  306;  Pingree  v.  Cof- 
fin, 12  Gray,  288;  Sibley  v.  Leffing- 
well,  8  Allen,  584;  Parker  v.  Os- 
good, 3  Allen,  487;  George  v.  Kent, 
7  Allen,  16;  Dooley  v.  Walcott,  4 
Allen,  406;  Connihan  v.  Thomp- 
son, 111  Mass.  270;  Curtis  v.  Mun- 
dy,  3  Met.  405;  Buttrick  v.  Holden, 
13  Met.  355;  Hennessey  v.  An- 
drews, 6  Cush.  170;  Lawrance  v. 
Stratton,  6  Cush.  163 ;  Baynard  v. 
Norris,  5  Gill,  483,  46  Am.  Dec. 
647;  Green  v.  Early,  39  Md.  223; 
Johns  V.  Scott,  5  Md.  81;  Win- 
chester V.  Baltimore  etc.  R.  R.,  4 
Md.  231 ;  Price  v.  McDonald,  1  Md. 
403,  54  Am.  Dec.  657;  Wasson  v. 
Connor,  54  Miss.  351 ;  Buck  v. 
Paine,  SO  Miss.  648;  Allen  v.  Poole, 
54  Miss.  323 ;  McLeod  v.  First  Nat. 
Bank,  42  Miss.  99;  Deacon  v.  Tay- 
lor, 53  Miss.  697;  Avent  v.  Mc- 
Corkle,  45  Miss.  221;  Parker  v. 
Foy,  43  Miss.  260,  55  Am.  Rep.  484 ; 
Loughridge  v.  Bowland,  52  Miss. 
546,  553;  Gilson  v.  Boston,  11  Nev. 
413;  Grellett  v.  Heilshorn,  4  Nev. 
526;  Major  v.  Bukley,  51  Mo.  227, 
231;  Maupin  v.  Emmons,  47  Mo. 
304;  Digman  v.  McCollum,  47  Mo. 
372,  375;  Ridgway  v.  Holliday,  59 
Mo.  444;  Fellows  v.  Wise,  55  Mo. 
413;  Eck  v.  Hatcher.  58  Mo.  235; 
Rhodes  v.  Outcalt,  48  Mo.  367; 
Speck  V.  Riggin,  40  Mo.  405;  Mul- 
drow  V.  Robinson,  58  Mo.  331 ;  Mas- 
terson  v.  West  End  etc.  R.  R.,  5 
Mo.  App.  64;  Roberts  v.  Moseley, 
64  Mo.  507;  Norton  v.  Mcader,  8 
Saw.  603 ;  Hardy  v.  Harbin,  4  Saw. 
536;  Helms  v.  Chadbourne,  45  Wis. 
Deeds,  Vol.  n.— 85 


60,  11 ;  Hoppin  v.  Doty,  25  Wis.  573, 
591;  Hoxie  v.  Price,  31  Wis.  82; 
Gilbert  v.  Jess,  31  Wis.  110;  Fallass 
V.  Pierce,  30  Wis.  443;  Brinkman 
V.  Jones,  44  Wis.  498,  519;  Ely  v. 
Wilcox,  20  Wis.  523,  91  Am.  Dec. 
436;  Willis  v.  Gay,  48  Tex.  463,  26 
Am.  Rep.  328;  Rodgers  v.  Burch- 
ard  34  Tex.  441,  7  Am.  Rep.  283; 
Littleton  v.  Giddings,  47  Tex.  109; 
Allen  V.  Root,  39  Tex.  589 ;  Stafford 
V.  Ballou,  17  Vt.  329;  Brackett  v. 
Wait,  6  Vt.  411;  Blaisdell  v.  Stev- 
ens, 16  Vt.  179;  Corliss  v.  Corliss, 
8  Vt.  Ill;  Cox  v.  Cox,  5  W.  Va. 
335;  Martin  v.  Sale,  1  Bail.  Eq.  1, 
24;  Wallace  v.  Craps,  3  Strob.  266; 
Cabiness  v.  Mahon,  2  McCord,  273 ; 
City  Council  v.  Page,  1  Spear  Eq. 
159,  212;  Vest  v.  Michie,  31  Gratt. 
149,  31  Am.  Rep.  722;  Mundy  v. 
Vawter,  3  Gratt.  518;  Newman  v. 
Chapman,  2  Rand.  93,  14  Am.  Dec. 
766;  Wood  v.  Krebbs,  30  Gratt.  708; 
Long  v.  Weller's  Executors,  29 
Gratt.  347;  Doswell  v.  Buchanan's 
Executors,  3  Leigh,  365,  23  Am. 
Dec.  280;  McClure  v.  Thistle,  2 
Gratt.  182;  Stannis  v.  Nicholson,  2 
Or.  332;  Carter  v.  City  of  Portland, 
4  Or.  339,  350;  Colby  v.  Kenniston, 
4  N.  H.  262;  Warner  v.  Swett,  31 
N.  H.  332;  Bell  v.  Twilight,  22  N. 
H.  500;  Rogers  v.  Jones,  8  N.  H. 
264;  Hoit  v.  Russell,  56  N.  H.  559; 
Brown  v.  Manter,  22  N.-  H.  468: 
Patten  v.  Moore,  32  N.  H.  382; 
Harris  v.  Arnold,  1  R.  I.  125 ;  Til- 
linghast  v.  Champlin,  4  R.  I.  173, 
215,  67  Am.  Dec.  510;  McKenzie  v. 
Perrill,  15  Ohio  St.  162;  IMorris  v. 
Daniels,   35    Ohio   St.   406;    Lahr's 


1346 


THE    LAW    OF    DEEDS. 


[chap.    XXIII. 


it.'     Courts  have  frequently  doubted  the  wisdom  of  allowing 
the  question  of  notice  other  than  that  furnished  by  the  record 


Appeal,  90  Pa.  St.  507 ;  Smith's  Ap- 
peal, 11  Wright,  128;  Speer  v.  Ev- 
ans, 11  Wright,  141;  Britton's  Ap- 
peal, 9  Wright,  172;  Butcher  v. 
Yocum,  61  Pa.  St.  168,  100  Am, 
Dec.  625;  Parke  v.  Neeley,  90  Pa. 
St.  52;  Nice's  Appeal,  54  Pa.  St. 
200;  Maul  v.  Rider,  59  Pa.  St.  167; 
Cordova  v.  Hood,  17  Wall.  1,  21  L. 
ed.  587;  Brush  v.  Ware,  15  Peters, 
93,  10  L.  ed.  672 ;  Holmes  v.  Stout,  2 
Stockt.  Ch.  419 ;  Smith  v.  Vreeland, 
16  N.  J.  Eq.  199;  Van  Keuren  v. 
Central  R.  R.,  38  N.  J.  L.  165 ;  Hoy 
V.  Bramhall,  19  N.  J.  Eq.  563,  97 
Am.  Dec.  687 ;  Smallwood  v.  Lew- 
in,  2  McCart.  60;  Raritan  Water 
Co.  V.  Veghte,  21  N.  J.  Eq.  463; 
Van  Doren  v.  Robinson,  16  N.  J. 
Eq.  256.  See,  also,  Blackburn  v. 
Perkins,  138  Ala.  305,  35  So.  250; 
Seawel!  v.  Young,  11  Ark.  309,  91 
S.  W.  544;  Price  v.  Bassett,  168 
Mass.  598,  47  N.  E.  243;  Schwartz 
V.  Woodruff,  132  Mich.  513,  93  N. 
W.  1067;  Moore  v.  Moran,  64  Neb. 
84,  89  N.  W.  629 ;  Kidder  v.  Fland- 
ers, n  N.  H.  345,  61  Atl.  675 ;  Val- 
lely  V.  First  Nat.  Bank,  14  N.  D. 
580,  5  L.R.A.(N.S.)  387,  106  N.  W. 
127;  Beebe  v.  Wisconsin  etc.  Co., 
117  Wis.  328,  <^l  N.  W.  1103;  Em- 
mons v.  Harding,  162  Ind.  154,  70 
N.  E.  142;  Handy  v.  Rice,  98  Me. 
504,  57  Atl.  847;  E.  B.  Miller  &  Co. 
V.  Olney,  69  Mich.  560,  Zl  N.  W. 
558;  Sanford  v.  Lumber  Co.,  83 
Miss.  478,  36  So.  10;  Scott  v.  City 
of  Marlin,  25  Tex.  Civ.  App.  353,  60 
S.  W.  969;  Chesterman  v.  Boiling, 
102  Va.  471,  46  S.  E.  470;  Cummins 
V.  Beavers,  103  Va.  230,  48  S.  E.  891, 


106  Am.  St.  Rep.  881 ;  Reel  v.  Reel, 
59  W.  Va.  106,  52  S.  E.  1023 ;  Cross- 
ly v.  Campian  Min.  Co.,  1  Alaska, 
391 ;  Ellison  v.  Branstrator,  153 
Ind.  146,  54  N.  E.  433;  Hunt  v. 
Nance,  122  Ky.  274,  92  S.  W.  6; 
Rollins  V.  Blackden,  99  Me.  21, 
58  Atl.  69;  Benn  v.  Pritchett, 
163  Mo.  560,  63  S.  W.  1103; 
Dennis  v.  Dennis,  119  Mich.  380, 
78  N.  W.  333;  Ladmer  v.  Stew- 
art, (Miss.)  38  So.  748;  Wetz- 
stein  V.  Largey,  27  Mont.  212, 
70  Pac.  717;  Masterson  v.  Harris, 
11  Tex.  Civ.  App.  145,  83  S.  W.  428; 
Weeks  v.  Hathaway,  (Ind.  App.) 
90  N.  E.  647;  McCall  v.  McCall, 
159  Mich.  144,  123  N.  W.  550;  Bar- 
ney v.  Chamberlain,  85  Neb.  785,  124 
N.  W.  482;  Kinney  v.  McCall,  57 
Wash.  545,  107  Pac.  385;  Morrison 
V.  Gosnell,  84  Neb.  275,  121  N.  W. 
236;  Kollock  v.  Bennett,  ^l  Ore. 
395,  100  Pac.  940;  Parks  v.  Worth- 
ington,  (Tex.  Civ.  App.)  104  S.  W. 
921.  One  having  notice  is  bound 
thereby :  White  v,  Lippincott,  86 
Neb.  82,  124  N.  W.  833 ;  George  v. 
Crim,  66  W.  Va.  421,  66  S.  E.  526; 
Griffin  v.  Franklin,  224  Mo.  667. 
123  S.  W.  1092 ;  Haring  v.  Shelton, 
(Tex.)  122  S.  W.  13;  Lowry  v. 
McDaniel,  (Tex.  Civ.  App.)  124  S. 
W.  710;  Schwoebel  v.  Storrie,  (N. 
J.  Eq.)  74  A.  969.  That  notice  may 
be  imputed  as  a  result  of  state- 
ments of  the  vendor,  see  So.  R.  Co. 
v.  Carroll,  86  S.  C.  56,  67  S.  E.  4. 

2Wetzler  v.  Nichols,  53  Wash. 
285,  101  Pac.  867,  132  Am.  St.  Rep. 
1075 ;  Deering  v.  Holcomb,  26  Wash. 
588,  67  Pac.  240.    See,  also.  Dor- 


CHAP.    XXIII.]        THE   DOCTRINE    OF    NOTICE.  1347 

to  be  litigated.  The  statutes  providing  for  a  system  of  regis- 
tration would  undoubtedly  become  more  effective  if  all  con- 
veyances should  take  effect  in  the  order  in  which  they  are  filed 
for  record,  aside  from  any  inquiry  as  to  other  notice.  But 
the  manifest  injustice  of  allowing  a  subsequent  purchaser,  with 
full  knowledge  of  another's  rights,  to  gain  a  priority  over  him 
through  the  latter's  negligence  to  record  his  deed,  induced  the 
courts,  at  an  early  day,  to  ingraft  the  equitable  rule  upon  the 
law  of  registration,  that  such  purchaser  should  not  take  advan- 
tage of  his  own  fraud.  He  was  viewed  as  a  purchaser  in  bad 
faith,  and  his  rights  accordingly  were  considered  as  inferior 
to  those  of  the  prior  purchaser.  It  perhaps  would  be  useless  to 
the  reader  to  enter  into  a  long  history  of  the  growth  of  the 
doctrine  of  notice,  anci  it  will  be  sufficient  to  say  that  it  gen- 
erally prevails.  But  North  Carolina  and  Ohio  are  exceptions, 
and,  in  those  States,  the  general  rule  of  binding  a  subsequent 
purchaser  or  mortgagee  with  notice  does  not  apply. ^  If  a  per- 
son has  a  bond  for  a  deed,  and  has  given  notes  for  the  pur- 
chase money,  a  purchaser  who  knows  that  one  of  the  notes  is 
unpaid,  although  he  may  take  a  deed  from  the  original  vendor 
as  well  as  from  the  vendee,  cannot  protect  himself  against  the 
note  held  by  one  who  took  it  before  the  purcliase.* 

§  726.  Forged  deeds. — As  forged  deeds  cannot  affect 
the  title  to  land,  and,  therefore,  are  not  entitled  to  record,  the 
provision  of  the  statute  that  deeds  affecting  the  title  to  land 
shall  be  void  as  against  subsequent  purchasers  and  creditors 
without  notice,  if  not  recorded  has  no  application  to  deeds 

mitzer  v.  German  etc.  Ass'n,  23  Ohio,  148,  42  Am.  Dec.  193;  Bloom 
Wash.  123,  62  Pac.  862 ;  BuUock  v.  v.  Noggle,  4  Ohio  St.  45 ;  May- 
Wallace,  47  Wash.  690,  92  Pac.  675.  ham  v.  Coombs,  14  Ohio,  428;  Col- 
3  Fleming  v.  Burgin,  2  Ired.  Eq.  lins  v.  Davis,  132  N.  C.  106,  43  S, 
584;    Robinson    v.    Willoughby,    70  E.  579. 

N.  C.  358;  Legget  v.  Bullock,  Busb.  *  Lytle  v.  Turner,  12  Lea  (Tenn.) 

283;  Bercaw  v.  Cockerill,  20  Ohio  641. 
St    163;     Stansell    v.    Roberts.    13 


1348 


THE   LAW    OF   DEEDS. 


{chap.    XXIII. 


which  are  forged.'^  Where  a  person  signs  a  deed  under  the 
belief  that  he  is  signing  a  dtipHcate  copy  of  a  lease,  never  in- 
tending to  sign  a  deed,  the  deed  is  a  forgery,  and  no  title  passes 
thereby.®  The  fact  that  a  deed  has  been  placed  on  record  does 
not  afford  notice  of  any  fraud  that  may  have  occurred  in  its 
execution.'^  It  is  immaterial  what  the  good  faith  of  the  party 
claiming  under  a  forged  deed  may  be,  as  no  person  can  be 
deprived  of  his  property  by  a  forged  deed.  There  can  be  no 
rights  of  a  bona  Ude  purchaser  "when  the  real  owner  of  prop- 
erty stolen,  or  attempted  to  be  stolen,  from  him  has  done  noth- 
ing to  lead  the  purchaser  of  it  to  buy  it  under  the  belief  that 
it  was  not  stolen.  Reliance  on  a  forged  deed,  recorded  on  an 
absolutely  false  certificate  of  acknowledgment,  may  bring  loss 
upon  him  who  so  relies,  but  neither  such  deed  nor  such  cer- 
tificate appended  to  it  can  ever  affect  the  owner  of  the  prop- 
erty." '  As  succinctly  said :  "No  man  can  be  deprived  of 
his  property  by  a  forged  deed  or  mortgage,  no  matter  what 
may  be  the  bona  Udes  of  the  party  who  claims  under  it."  '    Cir- 


5  Pry  V.  Pry,   109  111.  466. 

6  McGinn  v.  Tobey,  62  Mich.  252, 
4  Am.  St.  Rep.  848. 

'Martin  v.  Smith,  1  Dill.  98,  4 
Nat.  Bank  Reg.  287;  Godbold  v. 
Lambert,  8  Rich.  Eq.  155,  70  Am. 
Dec.  192.  See,  also,  as  to  the  effect 
of  forged  deeds,  §  240,  ante,  and 
Haight  V.  Vallett,  89  Cal.  245,  23 
Am.  St.  Rep.  465;  Meley  v.  Collins, 
41  Cal.  663,  10  Am.  Rep.  279. 

«  Smith  V.  Markland,  223  Pa.  605, 
72  Atl.  1047,  132  Am.  St.  Rep.  747. 
Notice  of  the  forgery  is  immaterial 
as  no  one  can  acquire  land  by  a 
forged  deed :  Gross  v.  Watts,  206 
Mo.  373,   121   Am.   St.  Rep.  662. 

^  Reineman  v.  Moon,  12  Pitts.  L. 
J.  N.  S.  167.  See,  also,  Michener 
V.  Cavender,  38  Pa.  334,  80  Am. 
Dec.   486,   in   which   speaking  of   a 


forged  mortgage  the  court  said : 
"To  call  the  mortgagee  a  bona  Me 
purchaser,  and  to  put  her  to  proof 
that  he  knew  she  has  been  cheated, 
would  be  like  making  her  right  to 
reclaim  stolen  goods  dependent  on 
the  receiver's  knowledge  of  the  fel- 
ony. Suppose  the  mortgage  was  a 
forgery  out  and  out,  and  Cavender 
chose  to  invest  his  money  in  a  pur- 
chase of  it,  must  it  be  enforced  be- 
cause he  did  not  know  he  was  buy- 
ing a  forged  instrument?  An  in- 
strument known  to  be  forged  would 
not  be  purchased,  and  would,  there- 
fore, be  worthless  to  the  forger. 
Counterfeit  notes  would  never  be 
issued  if  a  herald  went  before  to 
proclaim  their  spuriousness.  But 
because  they  are  taken  without 
notice,    do    thiy    become    genuine? 


CHAP.    XXIII.]         THE    DOCTRINE    OF    NOTICE.  1349 

cumstantial  evidence  may  be  sufficient  to  prove  the  forgery 
of  a  deed.^ 

§  727.  Notice  and  knowledge. — Though  sometimes 
the  terms  "notice"  and  "knowledge"  are  used  indiscriminate- 
ly and  interchangeably,  there  is  a  manifest  distinction  between 
them.  A  person  may  have  notice  of  a  thing  without  having 
any  actual  knowledge  of  it.  If  a  person  has  sufficient  informa- 
tion to  put  him  upon  inquiry,  and  he  fails  to  prosecute  that 
inquiry,  and  hence  does  not  learn  the  true  state  of  the  title 
through  his  own  negligence,  or  a  desire  not  to  learn  it,  he  has 
notice  of  all  he  might  have  learned,  had  the  prosecuted  that 
inquiry.  But  he  has  not  knozvledge  of  such  facts  because  he 
does  not  actually  know  them,  but  the  law  presumes  that  he 
does  know  them  from  the  notice  he  has  received.  Knowledge 
means  the  actual  acquaintance  with  a  fact.  Notice  means  in- 
formation about  a  fact,  which  information,  in  its  legal  effect, 
is  equivalent  to  knowledge  of  the  fact,  and  to  which  the  law 
attaches^  the  same  consequences  as  it  would  to  knowledge. 
Notice  has  been  defined  as  "Information  given  of  some  act 
done,  or  the  interpellation  by  which  some  act  is  required  to  be 
done."  ^  Mr.  Pomeroy  suggests  as  an  acceptable  definition, 
"Information  concerning  a  fact  actually  communicated  to  a 
party  by  an  authorized  person,  or  actually  derived  by  him  from 
a  proper  source,  or  else  presumed  by  law  to  have  been  acquired 
by  him,  which  information  is  regarded  as  equivalent  in  its 

Is  every  bank  and  individual  to  re-  That  notice  is  equivalent  to  knowl- 

deem  whatever  obhgations  bona  Me  edge,     see     Strahorn-Hutton-Evans 

holders    may    obtain    aganist    them,  Commission  v.   Flavor,  7  Okl.  499. 

without     regard     to     the     question  54    Pac.    710.     That    they    are    not 

whether    the    obligation    was    ever  synonymous,    see    R.    Co.    v.    Bunt, 

issued  or  not?    To  carry  the  doc-  131  Ala.  591,  32  So.  557;  Clarke  v. 

trine  of  notice  to  such  extent  would  Ingram,  107  Ga.  565,  ZZ  S.  E.  802. 

subvert  all  law  and  justice."  "Actual  notice"*  dies  not  necessarily 

1  Horeston    Oil    Co.    v.    Kimball  mean  actual  knowledge :    Schnavely 

(Tex.)  122  S.  W.  533.  v.  Bishop,  8  Kan.  App.  301,  55  Pac. 

*Bouv.    Law    Diet.,    Tit    Notice.  667. 


1350  THE    LAW    OF   DEEDS.  [CHAP.    XXIIl. 

legal  effects  to  full  knowledge  of  the  fact,  and  to  which  the 
law  attributes  the  same  consequences  as  would  be  imputed  to 
knowledge,"  and  adds :  "It  should  be  most  carefully  observed 
that  the  notice  thus  defined  is  not  knowledge,  nor  does  it  as- 
sume that  knowledge  necessarily  results.  On  the  other  hand, 
the  information  which  constitutes  the  notice  may  be  so  full 
and  minute  as  to  produce  complete  knowledge."  ^  In  a  case 
recently  decided  by  the  Supreme  Court  of  Rhode  Island  it  was 
held  that  "notice"  is  equivalent  to  "information,"  "intelli- 
gence" or  "knowledge."  The  court  decided,  accordingly,  that 
the  mere  fact  that  a  person  had  received  a  letter,  together  with 
a  copy  of  a  lease,  would  not  be  sufficient,  in  and  of  itself,  to 
charge  him  with  actual  knowledge  of  their  contents,*  The 
court  in  that  case  says :  "The  law  prescribes  the  recording 
of  a  conveyance  of  title  to  real  estate  as  the  method  of  giving 
legal  notice  of  the  conveyance  to  all  the  world.  If  the  claim- 
ant under  such  a  conveyance  chooses  to  neglect  this  method 
and  attempts  to  give  actual  notice  of  his  title  to  another  per- 
son, he  assumed  the  task  of  actually  bringing  this  information 
to  the  apprehension  of  the  person  to  be  affected  by  it.  The 
delivery  of  the  notice  in  writing  to  a  blind  man  or  to  one  un- 
able to  read  is  not  enough.  The  delivery  of  a  letter  may  be 
ground  of  inference  that  the  information  was  communicated, 
but  this  information  may  be  rebutted  by  contrary  evidence. 
The  question  was  tlius  properly  left  to  the  jury  whether,  if 
the  letters  were  received  by  the  plaintiff,  he  acquired  actual 
knowledge  of  its  contents."  ^ 

3  2    Pomeroy's    Eq.    Jur.    §    594.  Civ.     App.)      117     S.     W.      1015; 

Whatever  puts  a  purchaser  on  in-  Pocahontas    etc.    Co.    v.    St.    Law- 

quiry  amounts  in  law  to  notice  pro-  rence  etc  Co.,  63  W.  Va.  685,  60  S. 

vided  the   inquiry  becomes   a   duty  E.  890;  Jennings  v.  Lentz,  50  Or. 

and    would    lead    to    knowledge    of  483,  29  L.R.A.(N.S.)    584,  93   Pac. 

the  requisite  fact  by  the  exercise  of  327. 

ordinary    diligence:     Ohio    etc.    R.  *  Veva  v.  Norigian,  28  R.  I.  319. 

Co.  V.  Pa.  Co.,  222  Pa.  573,  72  67  Atl.  327,  125  Am.  St.  Rep.  741. 
Atl.      271.        See,      also,      W.      L.  5  Per   Douglas,    C.    J.     See,    also, 

Moody    8c    Co.    v.    Martin,    (Te.x.  in  this  connection:    Prouty  v.  De- 


CHAP.    XXIII. i       ,  THE    DOCTRINE    OF    NOTICE.  l35l 

§  728.  Kinds  of  notice. — It  is  difficult  to  divide  notice 
into  classifications  to  which  objections  cannot  be  found.  No- 
tice, however,  may  be  classified  as  being  of  three  kinds,  actual, 
implied,  and  constructive.  Under  this  classification  actual  no- 
tice signifies  personal  knowledge.®  Implied  notice  is  such  as 
the  law  implies  from  the  relations  existing  between  the  parties, 
as  principal  and  agent,  where  notice  to  the  principal  is  implied 
from  notice  to  his  agent.''^  Constructive  notice  is  that  which 
the  law  attributes  to  a  person  of  things  which  he  knows,  or 
ought  to  know,  or  which,  by  using  ordinary  diligence,  he 
might  know.^ 

§  729.  Rumors. — Rumors  of  a  vague  and  uncertain 
character  not  emanating  from  some  person  interested  in  the 
property  will  not  affect  a  purchaser  with  notice  of  conflicting 
claims  to  the  land.^  "The  general  doctrine  is,  that  whatever 
puts  a  party  on  inquiry,  amounts,  in  judgment  of  law,  to  no- 
tice, provided  the  inquiry  becomes  a  duty,  as  in  case  of  pur- 
vine,  118  Cal.  258,  50  Pac.  380;  15  N.  Y.  354;  Bank  of  United  States 
Citveland  Woolen  Mills  Co.  v.  Si-  v.  Davis,  2  Hill,  451. 
bert,  81  Ala.   140,   1   So.  111.  »  See  Weilder  v.   Farmers'  Bank 

6  Story's  Eq.  Jur.  §  399;  Rogers  of  Lancaster,  11  Serg.  &  R.  134; 
V.  Jones,  8  N.  H.  264 ;  Lamb  v.  Hewitt  v.  Loosemore,  9  Hare,  449 ; 
Pierce,  113  Mass.  72;  Baltimore  v.  Plumb  v.  Fluitt,  2  Anstr.  432;  Ken- 
Williams,  6  Md.  235;  Williamson  v.  "^^y  v.' Green,  3  Mylne  &  K.  699; 
Brown,  15  N.  Y.  354;  Crassen  v.  Griffith  v.  Griffith,  Hoff.  Ch.  153. 
Swoveland,  22  Ind.  427.  And  see,  ,  '^^^  ^-  Livmgston,  3  Del.  Ch. 
1        c    -^u         c     VI     o   r-  »       348;  Butler  v.  Stevens,  26  Me.  484; 

also.  Smith  v.   Smith,  2   Cromp.  &       t  n     j        c     •  l  -j        o  -it       jX 


M.  231 ;  Michigan  Mut.  L.  Ins.  Co. 
V.  Conant,  40  Mich.  530;  North  Brit. 


Jolland  v.  Stainbridge,  3  Ves.  478; 

Hottenstein  v.  Lerch,  104  Pa.  St. 
..^  ,,  ^  ^  ,^  o  454;  Parkhurst  v.  Hosford  (U.  S. 
Ins.  Co.  V.  Hallett,  7  Jur.  N.  S.  ^ir.  Ct.  Or.),  4  West  C.  Rep.  311; 
1263;  Vest  v.  Michie,  31  Gratt.  149,  j^,q^,^3  ^  ^^^^^^  7  ^^^^^^  261; 
31  Am.  Rep.  722.  Woodworth    v.    Paige,    5    Ohio    St. 

7  See  Josepthal  V.  Heyman,  2  Abb.  70 ;  Shepard  v.  .Shepard,  16  Mich. 
N.  C.  22;  Hovey  v.  Blanchard,  13  173;  Wilson  v.  McCullough,  23  Pa. 
N.  H.  145;  Fuller  v.  Bennett,  2  St.  440,  62  Am.  Dec.  347;  Doyle  v. 
Hare,  394;  Walker  v.  Schreiber,  47  Teas,  4  Scam.  202;  Lamont  v. 
Iowa,    529;    Williamson   v.    Brown,       Stimson,  5  Wis.  443. 


1352  THE    LAW    OF    DEEDS.  [ClIAP.    XXUL 

chasers  and  creditors,  and  would  lead  to  the  knowledge  of 
the  requisite  fact  by  the  exercise  of  ordinary  diligence  and 
understanding.  Notice  of  a  deed  is  notice  of  its  contents; 
and  notice  to  an  agent  is  notice  to  his  principal.  But  notice 
of  a  rumor  of  a  conveyance  or  encumbrance  seems  not  to  be 
considered  as  either  actual  or  implied  notice.  Indeed,  to  set 
on  foot  an  inquiry  into  the  foundation  of  mere  rumors  would, 
in  most  cases,  be  a  vain  and  impracticable  pursuit.  Lex 
neminem  cogit  ad  vana  seu  impossihilia.''  *  The  fact  that 
a  purchaser  applies  to  a  stranger  for  information  as  to  the 
value  of  the  land,  and  the  latter,  in  the  course  of  conversation 
which  resulted  from  the  inquiries  made  relative  to  the  expedi- 
ency of  making  the  purchase  at  the  price  named,  informs  the 
purchaser  that  he  does  not  know  that  there  is  any  equitable 
title  to  the  land,  but  heard  a  person  say  that  he  intended  to 
prosecute  a  claim  further,  and  thought  he  should  get  the 
land,  is  not  sufficient  to  charge  the  purchaser  with  notice. 
This  information  is  nothing  but  mere  rumor.*  The  notice 
must  be  so  clear  that  the  purchaser  cannot  take  and  hold  the 
property  without  fraud.' 

§  730.  Same  subject  continued — Illustrations. — A  pur- 
chaser is  not  charged  with  notice  of  the  existence  of  an  ad- 
verse unrecorded  deed  to  a  piece  of  land  by  the  mere  fact  that 

1  Jacques  v.  Weeks,  7  Watts,  261,  chaser  from  him  with  knowledge  of 
267,  per  Sergeant,  J.  a    secret    trust,    that    it    requires    a 

2  Lament  v.  Stimson,  5  Wis.  443.  mere  definite  notice  than  a  remark 
Reputed  ownership  in  the  neighbor-  by  a  party  in  interest  "he  under- 
hood  of  land  by  parties  claiming  un-  stood  the  grantee  had  taken  the 
der  a  prior  unrecorded  deed  cannot  land  for  seven  years  to  pay  ofif  the 
be  regarded  as  notice  to  subsequent  grantor's  debts,"  and  a  question  "if 
grantees  not  living  in  the  neighbor-  he  knew  whose  land  he  was  trad- 
hood :  Hopkins  v.  O'Brien,  57  Fla.  ing  for."  See,  also,  Shepard  v. 
444,  49  So.  936.  Shepard,  Z6   Mich.   173;  Wailes  v. 

3  Hall  V.  Livingston,  3  Del.  Ch.  Cooper,  24  Miss.  208;  Hawley  v. 
348.  In  this  case,  where  a  grantee  Bullock,  29  Tex.  222;  Martel  v. 
held  under  an  absolute  deed,  it  was  Somers,  26  Tex.  551;  Wethered  v. 
held  that  to  aflfect  a  bona  Me  pur-  Boon,   17  Tex.   143;   Bugbee's  Ap- 


CHAP.    XXIII.]         THE    DOCTRINE    OF    NOTICE.  1353 

he,  sometime  before  his  purchase,  had  an  interview  with  his 
grantor,  who  told  him  that  he  was  not  able  at  that  time  to 
make  a  good  title,  but  in  a  brief  time  would  be.*  Nor  is  pay- 
ment of  taxes  by  the  grantee  in  an  unrecorded  deed  of  itself 
notice  to  a  subsequent  purchaser  of  his  claim  of  title.^  "While 
it  is  difficult  to  lay  down  a  general  rule  as  to  what  facts  would, 
in  every  case,  be  sufficient  to  charge  a  party  with  notice  or  put 
him  upon  inquiry,  yet  it  is  safe  to  say,  that  the  information 
received  ought  to  be  of  that  character  that  a  prudent  person, 
by  the  exercise  of  reasonable  and  ordinary  diligence,  could, 
upon  inquiry  and  investigation,  arrive  at  the  fact  that  a  prior 
conveyance  had  been  made."  ®  Speaking  of  the  statute  of 
Pennsylvania,  Sharswood,  J.,  says :  "We  are  bound  to  apply 
to  the  interpretation  of  this  statute  that  principle  in  regard  to 
constructive  notice  which  has  been  so  long  and  well  settled — 
that  whatever  puts  a  party  on  inquiry  amounts  in  judgment 
of  law  to  notice,  provided  the  inquiry  becomes  a  duty,  as  in 
case  of  purchasers  and  creditors,  and  would  lead  to  the  knowl- 
edge of  the  requisite  fact  by  the  exercise  of  ordinary  diligence 
and  understanding.  Even  a  general  rumor  of  a  conveyance 
would  not  have  been  enough  to  have  made  it  the  duty  of  the 
plaintiff  to  search  the  record.  Notice  of  such  a  rumor  is  not 
considered  as  either  actual  or  implied  notice.  Indeed,  to  set 
on  foot  an  inquiry  into  the  foundation  of  mere  rumors,  would 
in  most  cases  be  a  vain  and  impracticable  pursuit.  There  must 
be  some  act,  some  declaration  from  an  authentic  source — 
which  a  person  would  be  careless  if  he  disregarded — which 
is  necessary  to  put  a  party  on  inquiry,  and  call  for  the  exercise 

peal,   110  Pa.  St.  331;  Lambert  v.  ^The   City  of   Chicago   v.   Witt, 

Newman,  56  Ala.  623;   Ratteree  v.  supra,  per  Mr.  Justice  Craig.     And 

Conley,  74  Ga.   153.  see  Sicher  v.  Rambousek,   193  Mo. 

4  The  City  of  Chicago  v.  Witt,  75  113,  91  S.  W.  68;  Rankin  Mfg.  Co. 
111.  211.  V.  Bishop,  137  Ala.  271,  34  So.  991; 

5  Shelden  v.  Powell,  31  Mont.  249,  McAlpinc:  v.  Resch,  82  Minn,  523, 
781,  78  Pac  491,  107  Am.  St  Rep.  85  N.  W.  545. 

429. 


■  1354  THE    LAW    OF    DEEDS.  [CHAP.    XXlll. 

of  reasonable  diligence."  "^  When  an  absolute  deed  contains 
a  recital  that  the  purchase  money  has  been  paid,  the  grantor, 
when  seeking  to  enforce  as  against  a  sub-purchaser  for  a 
valuable  consideration,  a  lien  on  the  land  for  the  unpaid  pur- 
chase money,  has  the  burden  of  proving  that  such  sub-pur- 
chaser had  notice.  And  the  positive  testimony  of  the  sub- 
purchaser himself  denying  notice,  cannot  be  overcome  by  proof 
of  conversations  or  declarations,  repeated  after  an  interval  of 
fourteen  or  fifteen  years,  and  not  appearing  to  have  been  con- 
nected with  any  circumstances  apt  to  impress  them  on  the 
memory.' 

§  731.  Partnership  property. — If,  under  separate 
deeds  of  different  dates  and  from  different  grantors,  two  per- 
sons hold  undivided  interests  in  the  same  piece  of  land,  a 
party  who  deals  in  good  faith  with  one  of  them  with  re- 
spect to  his  interest,  is  not  charged  with  notice  of  the  char- 
acter of  the  property  as  partnership  property  from  the  knowl- 
edge merely  that  the  owners  are  partners,  and  use  the  premises 
for  the  purposes  of  the  partnership,  where  the  records  con- 
tain nothing  indicating  a  partnership  holding.  "The  record 
ought  generally  to  be  the  guide  on  which  parties  may  safely 
rely  in  dealing  with  the  titles  which  appear  there,"  said  Mr. 
Chief  Justice  Cooley,  "and  they  should  not  be  held  chargeable 
with  notice  of  equities  controlling  the  title  on  facts  which 
are  ambiguous.  Real  estate  held  by  partners  may  or  may 
not  be  partnership  property,  but  usually  it  is  not  so  unless 

7  Maul  V.  Rider,  59  Pa.   St.  167,  Foy,  43  Miss.  260,  55  Am.  Rep.  484 
171.  Wailes    v.    Cooper,   24    Miss.    208 

8  Lambert  v.  Newman,  56  Ala.  Epley  v.  Witherow,  7  Watts,  163, 
623.  See,  also,  as  to  the  insuffi-  Hood  v.  Fahnestock,  1  Barr.  470. 
ciency  of  mere  rumor  to  charge  a  44  Am.  Dec.  147;  Wilson  v.  McCul- 
purchaser  with  notice,  Loughbridge  lough,  23  Pa.  St.  440,  62  Am.  Dec. 
V.  Bowland,  52  Miss.  546;  Miller  v.  347;  Churcher  v.  Guernsey,  3 
Cresson,  5  Watts  &  S.  284;  Butler  Wright,  84. 

V.  Stevens,  26  Me.  484;  Parker  v. 


CHAP.    XXIII.]        THE   DOCTRINE   OF    NOTICE.  1355 

partnership  assets  have  been  used  to  purchase  it,  or  unless  it 
was  put  in  originally  as  a  part  of  the  joint  estate.  But  gen- 
erally the  fact  that  two  or  more  persons  make  use  of  property 
in  which  their  interests  are  apparently  several,  for  partnership 
purposes,  is  very  far  from  indicating  an  understanding  that 
others  would  be  found  to  take  notice.  The  several  interests 
still  remain  several,  and  each  may  deal  with  his  own  as  he 
will,  and  any  private  arrangement  that  would  change  this 
could  not  bind  third  parties  who  had  acted  in  ignorance  of 
it."  ^  But  where  the  lands  are  bought  by  the  firm,  and  title 
taken  in  the  firm  name,  a  purchaser  from  one  of  the  partners 
is  chargeable  with  notice  of  the  rights  of  the  others.^ 

§  731a.  Information  imparted  to  purchaser  that  title 
is  in  one  partner. — Likewise  if  the  title  stands  on  record 
in  the  names  of  two  persons,  and  the  purchaser  is  informed 
prior  to  the  completion  of  the  purchase  that  a  claim  is  made 
to  the  whole  of  the  land  by  one  of  such  persons  or  his  gran- 
tee, the  title  is  taken  subject  to  this  claim,  and  may  be  de- 
feated by  showing  that  the  land  had  been  acquired  by  the 
owners  of  record  as  partners,  and  on  a  settlement  of  their 
partnership  affairs  it  had  been  awarded  to  one  of  them.^ 
On  the  same  principle,  a  purchaser  of  land  may  be  charged 
with  notice  of  the  existence  of  a  vendor's  lien  on  land  if  he 
knows,  at  the  time  of  his  purchase,  that  a  part  of  the  consider- 
ation still  remained  unpaid.  Information  of  this  character 
will  impose  upon  him  the  duty  of  inquiring,  and  he  will  be 
charged,  in  accordance  with  the  rules  of  notice,  with  what  h*» 
might  with  reasonable  diligence  have  ascertained.^ 

9  Reynolds  v.  Ruckman,  35  Mich.  3  Woodall   v.  Kelly,  85  Ala,  368, 

80,  81.  7  Am.    St.   Rep.   57. 

1  Brewer  v.  Browne,  68  Ala.  210. 

2  Murrell     v.      Mandelbaum,     85 
Tex.  22,  34  Am.  St.  Rep.  111. 


1356  THE    LAW    OF    DEEDS.  [CHAP.    XXIII. 

§  732.  Information  must  be  from  credible  source. — 
To  bind  a  subsequent  purchaser,  the  notice  must  come  from 
some  person  interested  in  the  property,*  or  from  some  source 
entitled  to  credit.^  Thus,  where  a  widow  had  the  legal  title 
to  a  piece  of  real  estate,  and  a  party  intending  to  purchase 
was  informed  by  the  grandfather  of  the  minor  children  of 
the  widow  that  the  equitable  title  had  been  in  the  deceased 
husband,  and  was  then  in  his  heirs,  it  was  held  that  the  grand- 
father was  a  proper  person  to  give  notice,  and  that  the  notice 
so  communicated  would  affect  such  party  if  he  subsequently 
purchased.^  So  a  person  is  bound  by  notice  derived  from  an 
uncle  of  a  female  in  a  state  of  idiocy^  "It  is  exceedingly  diffi- 
cult," says  Putman,  J.,  "if  not  impossible,  to  define  beforehand 
what  information  shall  or  shall  not  be  sufficient.  But  if  it  were 
given  by  those  persons  who  (as  in  the  case  at  bar)  knew  the 
party,  and  much  of  his  transactions,  and  who  spake  not  vague- 
ly, especially  if  the  party  himself,  who  was  to  be  affected  by 
the  notice,  was  so  well  satisfied  of  its  truth  as  again  and  again 
to  state  or  acknowledge  the  fact,  it  must  be  sufficient.  No 
honest  man  after  such  notice  could  undertake,  or,  if  he  did, 
should  be  permitted,  to  acquire  title  to  the  land,  which  from 
information  given  on  certain  knowledge  he  believed  had  been 
conveyed.  We  think  the  notice  should  be  so  express  and  sat- 
isfactory to  the  party,  as  that  it  would  be  a  fraud  in  him  sub- 

*Van  Duyne  v.  Vreeland,  12  N.  Said  Gibbon,  C  J.:  "Now,  although 

J.   Eq.   142;   Peebles  v.   Reading,  8  a  purchaser  may  disregard  rumors 

Serg.  &  R.  484;  Rogers  v.  Hoskins,  set   afloat   by   those   who   have   no 

14  Ga.  166;  Lamont  v.  Stimson,  5  right  to   intermeddle,   he   is   bound 

Wis.  443 ;  Barnhart  v.  Greenshields,  to  attend  to  the  admonitions  of  a 

9    Moore    P.    C.    C.    18,    36;    Natal  party  in  interest.     Here  the  daugh- 

Land  Co.  v.  Good,  2  Law  R.  P.  C.  ters,   although   actually   charged   to 

121 ;  Parkhurst  v.  Hosford,  21  Fed.  the    township,    had    an    interest    of 

Rep.  827.  their  own,  from  attending  to  which 

5  Curtis   V.    Mundy,  3   Met.   405;  they  were  disabled  by  idiocy;  and 
Mulliken  v.  Graham,  72  Pa.  St.  484.  surely  one  so  near  in  blood  as  an 

6  Butcher   v.   Yocum,   61    Pa.    St.  uncle  might  lawfully  interpose  for 
168,   100  Am.  Dec.  625.  their  protection." 

'Ripple  V.  Ripple,  1  Rawle,  386. 


CHAP.    XXIII.]         THE    DOCTRINE    OF    NOTICE.  1357 

sequently  to  purchase,  attach,  or  levy  upon  the  land,  to  the 
prejudice  of  the  first  grantee."  * 

§  733.  Inadequacy  of  price. — The  price  for  which  the 
land  may  be  offered  for  sale  may  be  so  small  that  a  purchaser 
must  know  that  it  is  intended  to  sacrifice  somebody's  rights, 
and  he  may  accordingly  be  held  to  be  put  upon  the  strictest 
inquiry.  "It  is  not  necessary,  in  order  to  charge  a  purchaser 
with  bad  faith,  that  he  should  have  definite  knowledge  or  no- 
tice of  the  exact  character  and  condition  of  the  right  which 
he  attempts  to  defeat.  If  the  circumstances  are  such  as  to  in- 
form him  loudly  that  some  wrong  is  about  to  be  perpetrated, 
he  cannot  blindly  shut  his  eyes,  and  then  come  into  court  in 
the  character  of  a  bona  Ude  purchaser."  '  The  circumstances 
that  one  knowing  that  a  parcel  of  land  was  worth  between 
two  thousand  and  three  thousand  dollars,  purchased  it  for  one 
hundred  dollars,  and  knowing  also  that  although  the  title  of 
his  grantor  was  acquired  several  years  previously,  the  origi- 
nal owner  still  continued  to  reside  upon  the  land,  are  suf^cient 
to  put  such  purchaser  upon  the  strictest  inquiry  as  to  the  rights 
of  other  parties.^  Still,  as  it  is  unnecessary  to  set  out  the  full 
price  paid  for  the  land,  it  does  not  follow  because  a  price  less 
than  the  actual  value  of  the  land  is  stated  in  the  deed  as  the 
consideration,  that  this  is,  of  itself,  a  suspicious  circumstance 
requiring  a  purchaser  to  take  notice  of  it.* 

8  In  Curtis  v.  Mundy,  3  Met.  405,  Kan.  790,  26  L.R.A.(N.S.)  681,  106 

407.  Pac.  1048. 

9Hoppin   V.   Doty,   25   Wis.   573,  i  Hoppin   v.    Doty,   25   Wis.    573. 

591,  per  Paine,  J.;  Peabody  v.  Fin-  But  see  Beadles  v.  Miller,  9  Bush, 

ton,     3     Barb.     Ch.     451;     Eck     v.  405.      See,   also,    Conway   v.    Rock, 

Hatcher,    58    Mo.    235.      See,    also,  139  Ga.  162,  117  N.  W.  273;  Wis. 

Hoyt   V.   Hoyt,   8  Bosw.    511;   Til-  etc.   Co.   v.   Selover,   135   Wis.   594, 

linghast  V.   Champlin,  4  R.  I.   173,  16  L.R.A.(N.S.)    1073,   116   N.   W. 

67    Am.    Dec.    510;    Interstate    etc.  265. 

Co.  V.  Bailey,  29  Ky.  L.  Rep.  468,  «  Stewart's  Appeal,  98  Pa.  St  377. 
93  S.  W.  578;  Morris  v.  Wicks,  81 


1358  THE    LAW    OF    DEEDS.  [CHAP.    XXIII. 

§  734.  Statement  from  holder  of  adverse  title. — If  a 
person  about  to  purchase  a  piece  of  property  from  one  assum- 
ing to  act  as  owner  is  informed  by  a  third  party  that  the  lat- 
ter possesses,  or  claims  to  possess,  some  adverse  title  or  in- 
terest in  the  property,  this  statement  is  sufficient  to  afifect  such 
intending  purchaser  with  notice.  Thus,  if  A  has  an  unrecord- 
ed deed  for  certain  land,  and  B  hears  A  say  that  he  has  title 
to  the  land,  B  has  sufficient  notice  of  A's  title  to  put  him  on 
further  inquiry,  and,  if  B  afterward  purchases  the  land  from 
another  without  making  such  inquiry,  he  is  held  to  have  pur- 
chased with  notice  of  A's  title. ^  If  there  is  an  equitable  en- 
cumbrance upon  a  piece  of  land,  and  the  owner  sells  it,  and 
informs  the  purchaser  that  no  such  encumbrance  exists,  yet, 
if  the  purchaser,  at  the  time  of  making  the  purchase,  had 
knowledge  of  the  facts  by  which  the  equitable  encumbrance 
was  created,  he  takes  the  land  subject  to  the  charge,  notwith- 
standing that  he  has  paid  all  that  the  land  was  worth,  and 
had  searched  the  record  title,  and  found  it  clear,  and  took  his 
deed  in  the  belief  that  in  neither  law  nor  equity  could  such  an 
encumbrance  be  enforced.*  The  fact  that  a  party  has  notice 
of  an  owner's  intention  to  execute  a  deed  is  not  sufficient  to 
show  that  he  has  notice  of  the  contents  of  the  deed  as  exe- 
cuted.* Land  was  owned  in  common  by  three  parties,  who 
may  be  designated  as  A,  B,  and  C.  A  portion  of  the  land  was 
charged  as  against  them  with  an  equitable  encumbrance,  which 
did  not  appear  of  record.  D  purchased  without  notice,  in 
good  faith,  and  for  full  value,  the  uridivided  interest  of  A. 
Subsequently  B  conveyed  his  undivided  interest  to  E,  who  pur- 
chased for  full  value,  but  with  notice  of  the  encumbrance. 

•  Bartlett  v.  Glasscock,  4  Mo.  62.  it   where  they  buy  with   no  inten- 

Where  a  man  gave  a  mortgage  on  tion   of    paying   off   the    mortgage : 

land  after  having  invested  his  wife  Christopher    v.    Ferris,    SS    Wash, 

with   full   title  thereto,   said  mort-  534,  104  Pac.  818. 
gage  is  void  but  purchasers   from  *  Blatchley   v.    Osborn,    33   Conn, 

the  wife  take  it  free  of  the  mort-  226. 
gage  although  they  have  notice  of  ^  Ponder  v.  Scott,  44  Ala.  241. 


CHAP.    XXIII.]         THE    DOCTRINE    OF    NOTICE.  1359 

An  amicable  and  equal  partition  of  the  land  was  afterward 
made  between  C,  D,  and  E,  D  being  still  ignorant  of  the  en- 
cumbrance. The  part  assigned  to  E,  under  the  exchange  of 
deeds,  included  the  whole  of  the  portion  that  was  encum- 
bered. This  portion  was  estimated  at  its  full  value,  and  no 
allowance  was  made  for  the  encumbrance.  A  bill  in  equity 
was  brought  against  E  for  the  purpose  of  establishing  the 
encumbrance,  and  it  was  held  that  he  could  not  avail  himself 
of  the  want  of  notice  on  the  part  of  D,  to  afford  protection 
to  the  title  to  the  part  which  he  then  owned  in  several ty.° 

§  735.  Information  given  by  recorder. — If  the  record- 
er tells  a  person  who  is  about  to  purchase  property  that  the 
seller  has  already  given  a  deed  to  another  person  which  had 
been  deposited  for  record,  but  had  been  withdrawn  before 
it  was  actually  recorded,  this  information  is  sufficient  to  put 
such  purchaser  upon  inquiry.  "The  rules  in  respect  to  notice 
to  purchasers,"  said  Rhodes,  J.,  "of  adverse  titles  or  claims, 
other  than  such  as  is  imparted  by  the  records,  are  not  founded 
upon  any  arbitrary  provisions  of  law,  but  have  their  origin 
in  the  considerations  of  prudence  and  honesty  which  guide 
men  in  their  ordinary  business  transactions.  No  man,  on  being 
told  by  the  recorder  that  a  certain  deed  had  been  filed  in  his 
office,  and  that  it  had  been  withdrawn,  would  doubt  that  the 
deed  existed;  and  if  he  was  intending  to  purchase  the  prop- 
erty, common  prudence  would  dictate  to  him  the  necessity  of 
making  inquiry  of  the  grantee  for^the  deed,  unless  he  was  in- 
correctly advised  that  deeds  took  precedence  solely  from  pri- 
ority of  record."  ""    A  purchaser  who  has  knowledge  of  an  er- 

^Blatchley   v.   Osborn,   33   Conn.  10  Mon.  B.  184;  Hudson  v.  Warn- 

226.     See,  also,  Epley  v.  Witherow,  er,  2  Har.  &  G.  415 ;  Price  v.  Mc- 

7  Watts,  163;  Barnes  v.  McClinton,  Donald,    1    Md.    403,    54   Am.   Dec. 

3  Pen.  &  W.  67,  23  Am.  Dec.  62;  657. 

Nelson   v.    Sims,   23    Miss.   383,    57  '  Law  ton  v.  Gordon,  37  Cal.  202; 

Am.   Dec.    144;   Jacques  v.  Weeks,  207. 
7   Watts,    261;    Russell    v.    Petree, 


1360 


THE   LAW   OF   DEEDS. 


[chap.    XXIII. 


ror  in  the  description  of  mortgaged  property,  or  is  able  from 
his  knowledge  of  the  property  to  interpret  the  record,  giv- 
ing it  the  meaning  intended,  becomes  a  purchaser  with  notice.' 

§  736.  Time  of  payment  of  consideration. — If  the  no- 
tice has  been  given  to  the  intending  purchaser  before  he  has 
paid  any  part  of  the  consideration,  there  is  no  doubt  that  he 
thus  becomes  a  purchaser  with  notice,  and  if  he  sees  proper 
to  pay  the  money,  he  acquires  a  title  subject  to  the  rights  of 
whose  existence  he  had  notice.'  But  where  a  part  payment 
has  been  made  at  the  time  of  receiving  notice,  there  is  a  dif- 
ference of  opinion.  It  is  held  in  England  that  if  notice  is 
given  before  the  whole  of  the  consideration  has  been  paid, 
the  party  is  charged  with  notice.^    In  this  country  the  authori- 


8  Carter  v.  Hawkins,  62  Tex.  393. 

9Hardingham  v.  NichoUs,  3  Atk. 
304;  Kitteridge  v.  Chapman,  36 
Iowa,  348;  Price  v.  McDonald,  1 
Md.  403,  54  Am.  Dec.  657;  Wood  v. 
Mann,  1  Sum.  506;  Baldwin  v. 
Sager,  70  111.  503 ;  Maitland  v.  Wil- 
son, 3  Atk.  814;  English  v.  Waples, 
13  Iowa,  57 ;  Penfield  v.  Dunbar,  64 
Barb.  239;  Flagg  v.  Mann,  2  Sum. 
486;  Palmer  v.  Williams,  24  Mich. 
338.  See  Farmers'  Loan  Co.  v. 
Maltby,  8  Paige,  361 ;  Blanchard  v. 
Tyler,  12  Mich.  339,  86  Am.  Dec. 
57;  Murray  v.  Ballon,  1  Johns.  Ch. 
566;  Keys  v.  Test,  33  111.  316;  Ben- 
nett V.  Titherington,  6  Bush,  192 ; 
Haughwout  V.  Murphy,  21  N.  J. 
Eq.  (6  Green,  C.  E.)  118;  Wells 
V.  Morrow,  38  Ala.  125;  More  v. 
Mahow,  1  Cas.  Ch.  34;  Story  v. 
Lord  Windsor,  2  Atk.  630;  Tildes- 
ley  V.  Lodge,  3  Smale  &  G.  543 ; 
Moshier  v.  Knox  College,  32  111. 
155 ;  Boone  v.  Chiles,  10  Peters, 
209,  9  L.  ed.  399;  Wormley  v. 
Wormley,  8  Wheat.   429,  5  L.   ed. 


653;  Jones  v.  Stanley,  2  Eq.  Cas. 
Abr.  685 ;  Union  Canal  Co.  v. 
Young,  1  Whart.  410,  30  Am.  Dec. 
212;  Wilson  v.  Hunter,  30  Ind.  466; 
Patten  v.  Moore,  32  N.  H.  382; 
Collinson  v.  Lister,  7  De  Gex,  M. 
&  G.  634,  20  Beav.  356;  Tourville 
V.  Naish,  3  P.  Wms.  306;  Rayne 
V.  Baker,  1  Giff.  241;  Brown  v. 
Welch,  18  111.  343,  68  Am.  Dec. 
549;  Wigg  v.  Wigg,  1  Atk.  382; 
Schultze  V.  Houfes,  96  111.  335.  See, 
also,  Beattie  v.  Crewdson,  124  Cal. 
577,  57  Pac.  463;  Stone  v.  Ga.  etc. 
Trust  Co.,  107  Ga.  524,  33  S.  E. 
861;  Trice  v.  Comstock,  61  L.R.A. 
176,  121  Fed.  620,  57  C.  C.  A.  646 ; 
Steele  v.  Robertson,  75  Ark.  228, 
87  S.  W.  117;  Mackey  v.  Bowles, 
98  Ga.  730,  25  S.  E.  834;  Lain  v. 
Morton,  23  Ky.  L.  Rep.  438,  63  S. 
W.  286;  Cline  v.  Osborne,  (Ky.) 
63  S.  W.  1083;  Edwards  v.  R.  Co., 
82  Mo.  App.  96;  Halloran  v. 
Holmes,  13  N.  D.  411,  101  N.  W. 
310. 

1  Tildesly    v.    Lodge,   3    Smale   & 


CHAP.    XXIII.]        THE   DOCTRINE   OF    NOTICE.  1361 

ties  are  divided.  On  the  one  hand,  it  is  held  that  where  pay- 
ment has  been  made,  but  notice  has  been  given  before  the  de- 
Hvery  of  the  deed,  the  purchaser  is  affected  with  notice.*  But 
on  the  other  hand,  it  is  held  that  the  payment  of  the  pur- 
chase money  before  the  receipt  of  notice  is  sufficient  to  allow 
the  purchaser  to  claim  protection  as  a  bona  fide  purchaser.^  If 
a  person  taking  a  mortgage  had  a  previous  notice  of  a  pre- 
existing lien  upon  the  land,  the  fact  that  he  has  forgotten  it  at 
the  time  he  took  the  mortgage  will  not  be  sufficient  to  free 
him  from  the  consequences  of  such  notice.* 

§  737.     Intimate  relationship  or  business  connections. 

— ^As  a  question  of  evidence  whether  a  person  had  no- 
tice, much  attention  has  sometimes  been  paid  to  the  circum- 
stance that  there  was  a  close  relationship  or  personal  inti- 
macy between  the  grantee  and  grantor.  Thus,  a  person  ap- 
pointed an  agent  to  purchase  a  piece  of  land,  and  gave  him 
some  money  to  pay  on  account.  The  agent's  son  subsequently 
bought  the  land  with  the  knowledge  of  the  father,  and  received 

G.  543;  Jones  v.  Stanley,  2  Eq.  Cas.  742;  Wells  v.  Morrow,  38  Ala.  125; 
Abr.  685 ;  Sharpe  v.  Foy,  Law  R.  4      Bennett    v.    Titherington,    6    Bush, 


Ch.  35 ;  Rayne  v.  Baker,  1  Giff.  241 
Story  V.  Lord  Windsor,  2  Atk.  630 
More   V.    Mahow,    1    Cas.    Ch.   34 


192;  Pillow  V.  Shannon,  3  Yerg. 
508;  Halstead  v.  Bank  of  Ken- 
Morris  V.  Meek,  57  Tex.  385- 


Wigg  V.  Wigg,  1   Atk.  382;  Tour-  3  Leach  v.  Ansbacher,  55  Pa.  St 

ville  V.  Naish,  3  P.  Wms.  307;  Cot-  85;  Carroll  v.  Johnson,  2  Jones  Eq. 

linson  v.   Lister,   7  De  Gex,   M,   &  120;    Gibler    v.    Trimble,    14    Ohio, 

G.  684,  20  Beav.  356.  323;   Baggarly  v.  Gaither,  2  Jones 

-  Osborn  v.  Carr,  12  Conn.   195;  Eq.  80;  Mut.  etc.  Society  v.  Stone, 

Doswell  V.  Buchanan,  3  Leigh,  394,  3  Leigh,  218.     See  on  the  general 

23  Am.  Dec.  280;  Fash  v.  Ravesics,  subject,   Baldwin  v.   Sager,   70  III. 

32  Ala.  451;  Duncan  v.  Johnson,  13  503;     Wormley     v.     Wormley,     8 

Ark.  190;  Blight  v.  Banks,  6  Mon.  Wheat.  421,   5  L.  ed.  651,   Wheat- 

192,  17  Am.  Dec.   136;   Peabody  v.  on  v.  Dyer,  15  Conn.  307;  Zollman 

Fenton,    3    Barb.    Ch.    451;    Simms  v.  Moore,  21  Gratt.  313;  Phelps  v. 

V.   Richardson,  2  Litt.  274;    Grim-  Morrison,  24   N.   J.   Eq.    195.     See 

stone    V.    Carter,   3    Paige,   421,   24  Morris  v.  Meek,  57  Tex.  385. 

Am.   Dec.   230;    Blair   v.   Owles,    1  *Hunt  v.   Clark's  Administrator, 

Munf.  38;   Moore  v.   Clay,  7  Ala.  6  Dana,  56. 
Deeds,  VoL  TL— 80     . 


1362  THE    LAW    OF    DEEDS.  [CHAP.    XXIII. 

a  deed  for  it.  The  principal  brought  an  action  in  ejectment 
for  the  land  against  the  father  and  the  son.  The  court  held 
that  it  was  not  error  to  charge  the  jury  that  the  knowledge 
by  the  son  of  the  trust  might  be  inferred  from  the  relation 
of  father  and  son  existing  between  the  defendants,  and  from 
their  transactions  as  to  the  contract  between  the  principal  and 
the  father,  and  the  other  circumstances  of  the  case.^  It  is 
unnecessary  to  say  that  a  bona  fide  purchaser  for  value  of  the 
real  estate  of  a  partnership,  the  legal  title  to  which  is  vested  in 
the  copartners,  or  in  one  of  them  for  the  firm,  will,  if  he  pos- 
sesses no  notice  of  the  equitable  rights  of  others  in  it  as  a  part 
of  the  copartnership  funds,  be  protected  upon  the  ground  of 
his  own  equities  as  such  purchaser.  But  where  a  person  buys 
the  undivided  half  of  a  planing-mill  and  other  property  from 
a  surviving  partner  of  a  firm  of  housewrights,  knowing  that 
the  mill  was  built  with  money  belonging  to  the  copartnership, 
and  knowing  that  the  dissolving  firm,  if  not  insolvent,  was 
greatly  in  debt,  and  that  the  surviving  partner  had  paid  none 
of  its  debts,  and  where  the  deed  was  taken,  and  the  money 
paid  secretly,  the  vendor  absconding  with  it  on  the  same  night, 
the  purchaser,  notwithstanding  that  no  proof  can  be  adduced 
of  his  actual  participation  in  the  acts  of  his  vendor,  may  be 
held  to  be  affected  by  these  circumstances  with  constructive 
notice  of  the  breach  of  trust  intended  by  the  partner  from 
whom  he  received  his  d^ed.®  A  person  took  a  deed  to  land 
in  his  own  name  alone,  but  purchased  it  with  money  belong- 
ing jointly  to  himself,  his  mother,  brother,  and  sister.  To 
one  of  his  individual  creditors  he  subsequently  made  an  offer 
to  pay  him  by  a  sale  or  lease  of  the  land,  or  to  secure  him  by 

8  Trefts  V.  King,  18  Pa.  St.  157.  the    cause.      This    instruction    was 

Said  Coulter,  J.:     "The  judge  told  right.     In  regard  to  such  transac- 

the  jury   that  they   ought   to   con-  tions   it   is   impossible  to  shut  our 

sider    the    relation    of    the    parties  eyes  to  the  relations  of  the  parties." 

being    father    and    son,    and    their  ^  Tillinghast  v.  Champlin,  4  R.  I. 

transactions  in  relation  to  the  con-  173,  67  Am.   Dec.  510. 
iract,  and  alj  the  other  evidence  .in 


CHAP.    XXIII.]        THE   DOCTRINE   OF    NOTICE.  1363 

a  mortgage  upon  It.  The  creditor  took  a  mortgage,  and  said 
afterward  to  a  third  person  that  he  preferred  a  mortgage  for 
the  reason  that  he  feared  that  the  title  was  not  clear,  and  that 
other  parties  might  claim  some  right  to  the  land.  The  creditor 
was  on  intimate  terms  with  the  grantor,  and  his  mother,  broth-, 
er,  and  sister,  and  there  was  nothing  to  show  that  any  other 
person  asserted  any  claim  to  the  premises.  The  court  held 
that  notice  on  the  part  of  the  creditor  of  the  rights  of  the 
mother,  sister,  and  brother  of  the  grantor,  at  the  time  he  took 
the  mortgage,  was  sufficiently  shown  by  these  and  similar 
facts,  and  that  his  mortgage  should  be  made  subject  to  their 
equities,'  But  in  all  these  cases  the  fact  of  relationship  or  inti- 
macy has  been  connected  with  others,  from  all  of  which,  taken 
together,  the  court  drew  the  inference  of  notice.  Notice, 
however,  would  not  reasonably  be  inferred  from  the  exist- 
ence of  close  relationship  or  intimate  acquaintance  unconnect- 
ed with  other  circumstances.' 

§  738.  Notice  of  a  trust. — If  a  person  has  notice  of 
a  trust  and  purchases  the  trust  property  from  the  trustee,  he 
will  hold  the  property  thus  acquired  subject  to  the  same  trust 
as  that  under  which  the  trustee  held  it.^    But  if  the  purchaser 

'  Spurlock    V.    Sullivan,   36   Tex.  Reed    v.    Dickey,    2    Watts,    459; 

51 1.     See,   also,   Hoxie  v.   Carr,   1  Smith    v.    Walter,    49     Mo.    250; 

Sum.    173,    192;    Flagg  v.    Mann,  2  Clarke    v.    Hackerthorn,    3    Yeates, 

Sum.  487.  269;   Ryan  v.  Doyle,  31   Iowa,  53; 

8  Dubois   V.    Barker,    4    Hun,    80,  Caldwell    v.    Carrington,    9    Peters, 

86.  86;  Wormley  v.  Wormley,  8  Wheat. 

9Le  Neve  v.  Le  Neve,  Amb.  436;  421,  5  L.  ed.  651;  Pugh  v.  Bell,  1 
Liggett  V.  Wall,  2  Marsh.  A.  K.  Marsh.  J.  J.  403;  Cary  v.  Eyre,'  1 
149;  Bailey  v.  Wilson,  1  Dev.  &  De  Gex,  J.  &  S.  149;  Case  v.  James, 
B.  Eq.  182;  Peebles  v.  Reading,  8  29  Beav.  512;  PoUer  v.  Sanders, 
Serg.  &  R.  495;  West  v.  Fitz,  109  6  Hare,  1;  Kennedy  v.  Daly,  1 
111.  425 ;  Murray  v.  Ballou,  1  Johns.  Schoales  &  L,  355 ;  Crofton  v. 
Ch.  566;  Wright  v.  Dame,  22  Pick.  Ormsby,  2  Schoales  &  L.  583; 
55;  Jones  v.  Shaddock.  41  Ala.  362;  Wigg  v.  Wigg,  1  Atk.  383;  Adair  v. 
Wilkins  v.  Anderson,  1  Jones,  399;  Shaw,  1  Schoales  &  L.  262;  Mack- 
James    V.    Cowing,    17    Hun,    256;  reth    v.    Symmons,    19    Ves.    Z67 ; 


1364 


THE   LAW   OF   DEEDS. 


[chap.    XXIII. 


has  neither  actual  nor  constructive  notice  of  the  trust,  and 
acquires  the  title  for  a  valuable  consideration,  he  will  hold  the 
property  freed  from  the  trust.^  Where  the  purchaser  obtains 
his  deed  with  notice  of  the  trust,  he  cannot,  by  buying  in  other 
interests,  defeat  the  interest  of  the  cestui  que  trust.^    Notice 


Benzien  v.  Lenoir,  1  Car.  Law  Rep. 
504;  Taylor  v.  Stibbert,  2  Ves.  Jr. 
437;  Ferras  v.  Cherry,  2  Vern.  384; 
Daniels  v.  Davidson,  16  Ves.  Sr. 
249;  Brooke  v.  Bulkely,  2  Ves.  Sr. 
498;  Grant  v.  Mills,  2  Ves.  &  B. 
306;  Mead  v.  Orrery,  3  Atk.  238; 
Birch  V.  Ellames,  2  Anstr.  427; 
Saunders  v.  Behew,  2  Vern.  371 ; 
Dunbar  v.  Tredennick,  2  Ball  &  B. 
319;  Jennings  v.  Moore,  2  Vern. 
609,  2  Brown  Pari.  C.  278 ;  Mansell 
V.  Mansell,  2  P.  Wms.  681 ;  Phayre 
V.  Peree,  3  Dow,  129;  Oliver  v. 
Piatt,  3  How.  333,  11  L.  ed.  622; 
Massey  v.  Mcllwaine,  2  Hill  Eq. 
426. 

1  See  for  various  instances,  Trull 
V.  Bigelow,  16  Mass.  406,  8  Am. 
Dec.  144;  Dana  v.  Newhall,  13 
Mass.  498;  Connecticut  v.  Bradisli, 
14  Mass.  296;  Boynton  v.  Rees,  8 
Pick.  329,  19  Am.  Dec.  326 ;  Learn 
ed  V.  Tritch,  6  Colo.  432;  Coles- 
bury  v.  Bart,  58  Ala.  573;  Brackett 
v.  Miller,  4  Watts  &  S.  102;  Lacy 
v.  Wilson,  4  Munf.  413;  Dixon  v. 
Caldwell,  15  Ohio  St.  412,  86  Am. 
Dec.  487;  High  v.  Batte,  10  Yerg. 
335;  Blight  v.  Banks,  6  Mon.  198, 
17  Am.  Dec.  136;  Alexander  v. 
Pendleton,  8  Cranch,  462,  3  L.  ed. 
624;  Dillaye  v.  Commercial  Bank, 
51  N.  Y.  345;  Hamilton  v.  Mound 
City  Mutual  L.  Ins.  Co.,  3  Tenn. 
Ch.  124;  Tompkins  v.  Powell,  6 
Leigh,  576;  Owings  v.  Mason,  2 
Marsh.    A.    K.    380;    Goodtitle    v. 


Cummings,  8  Blackf.  179;  Heilner 
V.  Imbrie,  6  Serg.  &  R.  401 ;  Brown 
V.  Budd,  2  Cart.  442;  Bumpus  v. 
Platner,  1  Johns.  Ch.  213;  Curtis 
v.  Lanier,  6  Munf.  42;  Griffith  v. 
Griffith,  9  Paige,  315;  Maywood  v. 
Lubcock,  1  Bail.  Eq.  382;  Fletcher 
v.  Feck,  6  Cranch,  87,  3  L.  ed.  162; 
Boone  v.  Chiles,  10  Peters,  177,  9 
L.  ed.  388;  Varick  v.  Briggs,  6 
Paige,  325;  Siddon  v.  Charnells, 
Bunb.  298;  Willoughby  v.  Will- 
oughby,  1  Term.  Rep.  765;  Charl- 
ton v.  Low,  3  P.  Wims.  328;  Har- 
court  v.  Knowell,  2  Vern.  159; 
Goleborn  v.  Alcock,  2  Sim.  552; 
Blake  v.  Hungerford,  Prec.  Ch. 
158;  Shine  v.  Gough,  1  Ball  &  B. 
536;  Jerrard  v.  Saunders,  2  Ves. 
Jr.  457;  Sanders  v.  Deligne,  Freem. 
123;  Jones  v.  Powles,  3  Mylne  & 
K.  581;  Walwyn  v.  Lee,  9  Ves.  24; 
Hughson  V.  Mandeville,  4  Desaus. 
Eq.  87;  Watson  v.  Le  Roy,  6  Barb. 
485;  Demarest  v.  Wynkoop,  3 
Johns.  Ch.  147,  8  Am.  Dec.  467; 
Howell  v.  Ashmore,  1  Stockt.  Ch. 
82,  57  Am.  Dec.  371;  Mundine  v. 
Pitts,  14  Ala.  84;  Woodruflf  v. 
Cook,  1  Gill  &  J.  270;  Whittick  v. 
Kane,  1  Paige,  202;  Halstead  v. 
Bank  of  Kentucky,  4  Marsh.  J.  J. 
554;  Fletcher  v.  Peck,  6  Cranch, 
87,  3  L.  ed.  162;  Vattier  v.  Hinde, 
7  Peters,  252,  8  L.  ed.  675 ;  Holmes 
v.  Stout,  3  Green  Ch.  492. 

2  Brooke  v.   Bulkely,  2  Ves.   Sr. 
498;  Kennedy  v.   Daly,  1   Schoales 


CHAP.    XXIII.]         THE    DOCTRINE    OF    NOTICE. 


1365 


of  the  trust  to  the  agent  while  engaged  in  the  transaction  is 
notice  to  the  principal.'  A  person  who  secures  a  deed  by  fraud 
becomes  a  trustee,  and  if  another  take  a  deed  from  him  with 
full  knowledge  of  the  fraud,  such  second  grantee  will  hold 
the  property  as  a  trustee.*  A  deed  made  on  a  good,  as  dis- 
tinguished from  a  valuable,  consideration,  will  not  be  suffi- 
cient to  bar  the  title  of  the  cestui  que  trust.^  To  enable  the 
purchaser  to  claim  protection  as  a  bona  fide  purchaser  without 
notice  of  the  trust,  the  money  must  have  been  paid  before 
he  received  notice.^     Where  a  deed  made  to  a  person  as  a 


&  L.  37;  Maloney  v.  Kernan,  2  Dru. 
&  Walsh,  31;  Bovey  v.  Smith,  1 
Vern.   145. 

3  Hood  V.  Fahnestock,  8  Watts, 
489,  34  Am.  Dec.  489;  Bank  of 
United  States  v.  Davis,  2  Hill,  451; 
Aster  V.  Wells,  4  Wheat.  466;  Jack- 
son V.  Winslow,  9  Cowen,  13;  Ho- 
vey  V.  Blanchard,  13  N.  H.  145; 
Jackson  v.  Leak,  19  Wend.  339; 
Winchester  v.  Baltimore  R.  R.  Co., 
4  Md.  231;  Griffith  v.  Griffith,  9 
Paige,  315;  Jackson  v.  Sharp,  9 
Johns.  163,  6  Am.  Dec.  267;  Barnes 
V.  McChristie,  3  Pa.  67;  Bracken 
V.  Miller,  4  Watts  &  S.  108;  Fuller 
V.  Bennett,  2  Hare,  394;  Worsley  v. 
Scarborough,  3  Atk.  392;  Preston 
V.  Tubbin,  1  Vern.  286;  Tunstall 
V.  Trappes,  3  Sim.  301 ;  Espin  v. 
Pemberton,  3  De  Gex  &  J.  547; 
Maddox  v.  Maddox,  1  Ves.  61; 
Ashley  v.  Baillie,  2  Ves.  Sr.  368; 
Tylee  v.  Webb,  6  Beav.  552;  Finch 
V.  Shaw,  19  Beav.  500;  Warwick 
V.  Warwick,  3  Atk.  291 ;  Mountford 
V.  Scott,  3  Madd.  34;  Howard  Ins. 
Co.  V.  Halsey,  4  Seld.  271,  59  Am. 
Dec.  478;  Blair  v.  Owles,  1  Munf. 
38;  Westerwelt  v.  Hoflf,  2  Sand.  98; 
Newstead  v.  Searles,  1  Atk.  265; 
Brotherton  v.  Hiett,  2  Vern.  574. 


4  Smith  V.  Bowen,  35  N.  Y.  83; 
Sadler's  Appeal,  87  Pa.  St.  154; 
Lyons  v.  Bodenhamer,  7  Kan.  455 ; 
Saunders  v.  Dehew,  2  Vern.  271 ; 
Pye  v.  George,  1  P.  Wms.  128. 

5  Boone  v.  Baines,  23  Miss.  136; 
Patten  v.  Moore,  32  N.  H.  382; 
Everts  v.  Agnes,  4  Wis.  343,  65 
Am.  Dec.  314;  Swan  v.  Ligan,  1 
McCord  Ch.  232;  Upshaw  v.  Har- 
grove, 6  Smedes  &  M.  292;  Frost 
v.  Beekman,  1  Johns.  Ch.  288. 

6  Warner  v.  W^hittaker,  6  Mich. 
133,  72  Am.  Dec.  65 ;  Dugan  v.  Vat- 
tier,  3  Blackf.  245,  25  Am.  Dec.  105 ; 
Christie  v.  Bishop,  1  Barb.  Ch.  105 ; 
Blanchard  v.  Tyler,  12  Mich.  339, 
86  Am.  Dec.  57;  Dixon  v.  Hill,  5 
Mich.  404;  Thomas  v.  Stone,  Walk. 
Ch.  117;  Stone  v.  Welling,  14  Mich. 
514;  Perkinson  v.  Hanna,  7  Blackf. 
400;  Rhodes  v.  Green,  36  Ind.  10; 
Lewis  V.  Phillips,  17  Ind.  108,  79 
Am.  Dec.  457;  Jackson  v.  Cadwell, 

1  Cowen,  622;   Heatley  v.   Finster, 

2  Johns.  Ch.  19;  High  v.  Batte,  10 
Yerg.  555;  Jewett  v.  Palmer,  7 
Johns.  Ch.  65,  11  Am.  Dec.  401; 
Patten  v.  Moore,  32  N.  H  382; 
Hunter  v.  Simrall,  5  Litt.  62;  Mc- 
Bee  V.  Loftes,  1  Strob.  Eq.  90;  Pal- 
mer   V.    Williams,    24    Mich.    333; 


1366  THE   LAW    OF   DEEDS.  [ClIAP.    XXIII. 

trustee  for  a  town  did  not  disclose  the  existence  of  the  trust, 
and  the  trustee  bargained  to  sell  the  land  to  one  who  entered 
into  possession  and  erected  improvements,  but  received  no 
deed,  and  was  unaware  of  the  equities  of  the  town,  it  was 
held,  in  a  suit  in  equity  brought  by  the  town  to  compel  the 
execution  of  a  deed,  that,  on  the  ground  where  the  equities 
are  equal,  possession  prevails,  the  decree  should  be  for  the 
amount  of  the  purchase  money  paid  for  the  land,  and  not  for 
a  conveyance.' 

§  738a.  Designation  of  grantee  as  "trustee." — The 
general  rule  that  prevades  the  whole  doctrine  of  notice  is 
that,  whenever  sufficient  facts  exist  to  put  a  person  of  com- 
mon prudence  upon  inquiry,  he  is  charged  with  constructive 
notice  of  everything  to  which  that  inquiry,  if  prosecuted  with 
proper  diligence,  would  have  led.  Therefore,  if  a  deed  is  made 
to  a  person  designated  "trustee,"  although  the  nature  of  the 
trust,  or  the  beneficiary  under  it,  is  not  disclosed,  still  a  pur- 
chaser is  obligated  to  inquire  as  to  the  nature  and  limitations 
of  the  trust.^    In  a  case  in  Massachusetts,  where  stock,  issued 

Story  V.  Winsor,  2  Atk.  630;  Tour-  96  Mass.  526;  Loring  v.  Salisbury, 

ville    V.    Naish,    3    P.    Wms.    387;  125  Mass.  151 ;  Fisher  v.  Brown,  104 

Wigg  V.  Wigg,  1  Atk.  384.  Mass.   259,   6   Am.    Rep.   235;    So- 

7  St.  Johnsbury  v.  Morrill,  55  Vt.  lari  v.  Snow,  101  Cal.  387,  35  Pac. 
165.  See,  also,  Jeffersonville  etc.  Rep.  1004.  See,  also,  Golson  v, 
R.  R.  Co.  V.  Oyler,  60  Ind.  383;  Fielder,  2  Tex.  Civ.  App.  400,  21 
Indiana  B.  &  W.  Ry.  Co.  v.  Mc-  S.  W.  Rep.  173.  "It  is  a  familiar 
Broom,  114  Ind.  198,  15  N.  E.  Rep.  doctrine,"  said  Mitchell,  J.,  "that  a 
831;  Paul  v.  Connersville  etc.  R.  R.  purchaser  is  chargeable  with  no- 
Co.,  51  Ind.  527;  Chicago  etc.  R.  tice  of  facts  recited  in  deeds  under 
Co.  V.  Wright,  153  III.  307,  38  N.  E.  or  through  which  he  takes  title; 
Rep.  1062.  and,    while    the    word    'trustee'    in 

8  Mercantile  Nat.  Bank  v.  Par-  a  deed  gives  no  notice  of  the  name 
sons,  54  Minn.  56,  55  N.  W.  Rep.  of  the  beneficiary,  or  of  the  char- 
825,  40  Am.  St.  Rep.  299;  Marbury  acter  of  the  trust,  yet  it  does  give 
V.  Ehlen,  72  Md.  206,  20  Am.  St.  notice  of  a  trust  of  some  descrip- 
Rep.  467;  Shaw  v.  Spencer,  100  tion,  which  imposes  the  duty  of 
Mass.  382,  97  Am.  Dec.  107,  1  Am.  inquiry  as  to  its  character  and  Hm- 
Rep.    115;    Sturtevant    v.    Jacques,  itations;  and  whatever  is  sufficient 


CHAP.    XXIII.]         THE    DOCTRINE    OF    NOTICE.  1367 

to  a  person  described  as  "trustee,"  had  been  pledged  to  se- 
cure his  own  debt,  the  court  held  that,  unless  this  term  should 
be  regarded  as  a  mere  descriptio  persomz,  and  rejected  as  a 
nullity,  there  was  notice  of  the  existence  of  a  trust  of  some 
kind.  It  held,  however,  that  this  term  showed  that  the  holder 
was  a  trustee  for  someone  whose  name  was  not  disclosed,  and 
that,  in  legal  effect,  it  was  the  same  as  if  the  beneficiary  had 
been  named,  as  all  persons  were  charged  with  notice  of  the 
existence  of  a  trust  of  some  description.^  Where  a  deed  is 
signed  by  one  of  the  grantors,  on  the  assumption  that  he  is 
the  attorney  in  fact  for  the  other,  but  he  has  in  fact  no  au- 
thority,  such  signature  is  sufficient  to  charge  the  purchaser 
with  notice  of  the  character  and  extent  of  the  principal's  in- 
terest in  the  land,  of  such  pretended  relation  of  agency  exist- 
ing at  the  time  of,  and  antecedent  to,  the  purchase  of  the 
land,  and  the  purchaser  acquires  a  title  subject  to  the  interest 
of  the  person  described  as  principal.^  A  purchaser  is  not 
charged  with  notice  of  a  trust  in  favor  of  a  wife  from  the 
fact  that  she  was  living  on  the  land  with  her  husband,  where 

to   put  a  person   of   ordinary  pru-  S.  W.  616,  rehearing  denied  125  S. 

dence  upon  inquiry  is  constructive  W.  881 ;  Chandley  v.  Robinson,  (N. 

notice  of  everything  to  which  that  J.)    75   Atl.    180;    Smith   v.   Fuller, 

inquiry     would     presumably     have  152  N.   C,  7,  67   S.   E.  48;   Hardy 

led":  Mercantile  Nat.  Bank  v.  Par-  Oil    Co.    v.    Burnham,    (Tex.    Civ. 

sons,  54  Minn.  56,  40  Am.  St.  Rep.  App.)    124  S.  W.  221 ;  In  re  Mul- 

299.     The   word   "trustee"   follow-  holland's    Estate,   224    Pa.    536,   7Z 

ing  the  name  of  the  grantee  in  a  Atl.     932;     Moorhcad     v.     Ellison, 

deed,  is  notice  sufficient  to  put  those  (Tex.  Civ.  App.)    120  S.  W.   1049; 

dealing    with    him    concerning    the  Binder  v.  Weimberg,  94  Miss.  817, 

property  on  inquiry  as  to  the  ex-  48  So.  1013;  Newbery  v.  Barkalow, 

istence    and    nature    of    the    trust:  (N.  J.  Eq.)  71  Atl.  752;  Teaguc  v. 

Snyder  v.  Collier,  85  Neb.  552,  123  Sowder,  121  Tenn.  132,   114  S.  W. 

N.  W.  1023.     So  as  a  general  rule  484;  Crosdale  v.  Hill,  78  Kan.  140, 

a  person  will  be  bound  by  recitals  96  Pac.  37;  Nelson  v.  Brown,  (Tex. 

in  the  conveyance  to  him  or  in  the  Civ.  App.)  Ill  S.  W.  1106. 

chain  of  title :    William  etc.  Co.  v.  ^  Shaw  v.  Spencer,  100  Mass.  382, 

King,   (Tex.  Civ,  App.)    122  S.  W.  97  Am.  Dec.  107,  1  Am.  Rep.   115. 

581;  Davidson  v.  Ryle,  (Tex.)   124  »  Solari  v.  Snow,  101  Cal.  387. 


1368  THE    LAW    OF    DEEDS.  [CHAP.    XXIH. 

the  title  stood  in  his  name.^  A  grantee  is  not  obliged  to  in- 
quire if  there  is  an  outstanding  trust  unless  he  has  notice  that 
there  is  one  in  existence.'  As  said  by  Mr.  Justice  Holmes: 
"When  the  title  to  land  is  dealt  with,  the  intent  of  the  registry 
laws  is  that  purchasers  should  not  be  required  to  look  beyond 
the  registry  of  deeds  further  than  is  absolutely  necessary."  * 

§  739.  Structures  upon  the  land. — It  has  been  fre- 
quently held,  in  accordance  with  the  soundest  equitable  prin- 
ciples, that  the  fact  that  structures  visible  to  every  one  exist 
upon  land  is  sufficient  to  make  it  the  duty  of  the  purchaser  to 
inquire  by  what  right  they  exist,  and  to  affect  him  with  no- 
tice of  an  easement.  If  there  is  an  open,  graded  railway  track 
across  land,  with  its  embankments  and  excavations  capable 
of  being  seen  by  everybody,  a  person  who  purchases  the  land 
under  these  circumstances  takes  his  deed  with  notice  of  what- 
ever rights  in  the  track  there  may  be  outstanding  in  others. 
The  warranty  deed  of  his  grantor  is  powerless  to  effect  such 
outstanding  rights  in  third  persons.  "The  purchaser  of  real 
estate  in  the  possession  of  a  third  person,"  said  Biddle,  C.  J., 
"is  bound  to  take  notice  of  such  person's  title  to  the  posses- 
sion, whether  his  title  be  legal  or  equitable.  This  is  a  familiar 
principle  of  law,  and  we  think  the  same  rule  should  apply  to  a 
railroad  track,  graded  and  established  at  the  time  the  vendee 
makes  his  purchase.  Such  a  track,  he  must  know,  is  incon- 
sitsent  with  any  exclusive  right  to  the  lands  over  which  it 
runs."  ^  Where  land  has  been  conveyed  without  a  reserva- 
tion, the  occupation  of  an  easement  in  land  adjoining  that 
conveyed  is  inconsistent  with  the  grant.  It  follows,  there- 
fore, that  a  purchaser  from  the  grantee  in  such  deed  has  no- 

2Paulus  V.  Latta,  93  Ind.  34.  118,  46  N.  E.  426,  60  Am.  St.  Rep. 

•  Swasey  v.  Emerson,   168  Mass.      368. 

118,  46  N.  K  426,  60  Am.  St.  Rep.  ^  PauI  v.  Connersvillc  etc.  R.  R. 

368.  Co.,  51  Ind.  527,  530. 

*  Swasey  v.   Emerson,   168  Mass. 


CHAP.    XXIII.]         THE    DOCTRINE    OF    NOTICE.  1369 

tice  of  a  reservation  by  parol  of  the  easement.  A  was  the  own- 
er of  a  piece  of  land  on  which  a  mill  had  been  erected,  and 
he  had  the  privilege  of  diverting  the  water  into  the  appurte- 
nant millrace  on  the  land  of  B,  who  had  an  equitable  title 
only.  A  subsequently  obtained  the  legal  title  to  the  whole 
tract,  and  conveyed  by  deed  the  legal  title  of  that  part  of  the 
tract  on  which  the  race  and  dam  stood  to  B,  free  from  en- 
cumbrances. The  deed  contained  covenants  of  seisin,  but 
made  no  reservation  or  mention  of  the  millrace.  The  deed 
was  recorded.  The  fact  that  A  subsequently  occupied  the 
mill  and  used  the  race  was  held  to  be  a  sufficient  notice  to  a 
purchaser  from  B  of  a  parol  reservation  in  favor  of  A  of  the 
right  to  the  race.®  But  it  has  been  held  that  knowledge  merely 
that  land  is  under  cultivation  is  not  of  itself  notice  to  a  pur- 
chaser of  an  unrecorded  deed  therefor.''^ 

A  purchaser  will  be  bound  by  the  terms  of  an  unrecorded 
agreement,  where  he  has  knowledge  of  such  facts  as  would 
excite  the  suspicion  of  a  prudent  man  dealing  with  the  prop- 
erty. If  a  purchaser  is  aware  that  a  house  projects  on  the 
land  purchased  by  him  and  has  been  in  that  position  for  a 
number  of  years,  although  he  may  not  know  that  this  was 
done  in  accordance  with  an  oral  agreement,  fixing  the  bound- 
ary line,  it  would  be  unjust  and  inequitable  to  eject  the  owner 
of  such  house  from  such  occupation,  and  in  such  a  case  it 
will  be  presumed  that  the  purchaser  acquired  title  in  view 
of  the  fact  of  the  possession  by  the  adjoining  owner  of  that 
portion  of  the  lot  occupied  by  the  house;  that  is  the  presump- 
tion is  that  his  purchase  was  made  with  the  understanding  that 
the  boundaries  visibly  marked  on  the  ground  constituted  the 

« Randall    v,    Silverthorn,    4    Pa.  563,   97    Am.    Dec.    287;    Davis    v. 

St.  173.    For  further  illustrations  of  Sear,  Law  R.  7  Eq.  427.     And  see 

this  rule,  see  Hervey  v.  Smith,  22  Atlantic  City  v.  Pier  Co.,  63  N.  J. 

Beav.   299;    Raritan   Water    Power  Eq.  644,  53  Atl.  99. 

Ca   V.   Veghte,  21    N.    J.    Sq.   463,  '  Cox  v.  Devinney,  65  N.  J.  Law, 

478;  Blatchley  v.  Osborn,  33  Conn.  389,  47  AtL  569. 
226;  Hoy  v.  Bramhall,  19  N.  J.  Eq. 


1370 


THE    LAW    OF    DEEDS. 


[chap.   XXIII. 


limits  of  the  lot,  and  that  the  price  paid  was  fixed  in  accordance 
with  the  value  of  the  property  as  thus  marked  and  used.'* 

§  740.  Searching  the  record  not  alone  sufficient. — 
When  a  person  has  received  such  information  as  to  place 
upon  him  the  duty  of  making  an  inquiry,  he  cannot  discharge 
that  duty  by  a  mere  examination  of  the  records.*  "The  rec- 
ord, consequently,  did  not  disprove  the  fact  of  which  they  were 
notified,  but  was  merely  silent  on  the  subject;  and  to  hold  that 
they  might  rely  upon  it  without  further  inquiry,  would  be 
equivalent  to  holding  that  notice  of  an  unrecorded  deed  must 
always  be  ineffectual,  at  least  unless  the  deed  itself  is  pro- 
duced. The  authorities  warrant  no  such  doctrine,  and  it  is 
inconsistent  with  the  statute  itself,  which  defeats  such  unre- 
corded deeds  only  at  the  instance  of  subsequent  purchasers 
in  good  faith  whose  deeds  are  duly  recorded.  There  is  no 
ground  for  saying  that  one  is  a  purchaser  in  good  faith  who, 
being  notified  of  an  unrecorded  deed,  and  having  the  means 
of  determining  the  truth  of  the  notice,  instead  of  making 
use  of  such  means,  resorts  only  to  a  record  which  can  give 
him  no  information  respecting  unrecorded  instruments,  and 


'*  Campbell  v.  Grennan,  13  Cal. 
App.  481. 

The  price  is  presumed  to  have 
been  fixed  according  to  the  value  of 
the  property  defined  and  used 
where  the  boundary  is  visibly 
marked  by  buildings  up  to  the 
agreed  line :  Young  v.  Blakeman, 
153  Cal.  483,  95  Pac.  888.  The 
court  in  the  13  Cal.  App.  distin- 
guishes the  case  from  those  where 
there  has  been  a  joint  occupancy  or 
where  the  possession  is  according 
to  the  legal  title.  See,  in  that  con- 
nection, the  following  cases  cited 
in  the  opinion :  Smith  v.  Yule,  31 
Cal.  185,  89  Am.  Dec.  167;  Taylor 
V.  Central  Pac.  R.  R.  Co.  67  Cal. 


615,  8  Pac.  436;  Schumacher  t. 
Truman,  134  Cal.  431,  66  Pac.  591 ; 
Harris  v.  Mclntyre,  118  111.  275,  8 
N.  E.  182;  Lindley  v.  Martindale, 
78  Iowa  379,  43  N.  W.  233 ;  Atwood 
V.  Bearss,  47  Mich.  12,  10  N.  W. 
112;  Wells  v.  American  Mont  Co. 
109  Ala.  430,  20  So.  136;  Pope  v. 
Allen,  90  N.  Y.  298;  McCarthy  v. 
Nicrosi,  72  Ala.  332,  47  Am.  Rep. 
418;  Townsend  v.  Little,  109  U.  S. 
154,  3  Sup.  Ct.  Rep.  357. 

8  Pringle  v.  Dunn,  37  Wis.  449, 
19  Am.  Rep.  772;  Littleton  v.  Gid- 
dings,  47  Tex.  109;  Munroe  v. 
Eastman,  31  Mich.  283;  Brinkman 
v.  Jones,  44  Wis.  498.  See,  also, 
Witter  V.  Dudley,  42  Ala.  616. 


CHAP.    XXIIT.]         THE    DOCTRINE    OF    NOTICE.  1371 

then  purchases  in  disreg-ard  of  the  rights  of  the  real  owner. 
A  second  purchaser  defeats  the  first  conveyance  only  by  bring- 
ing himself  within  the  letter  of  the  statute;  but  he  is  not 
within  it,  if  knowingly  he  buys  of  one  who  has  no  title  to 
sell."  • 

§  741.  Further  inquiry.— To  say  that  an  examination 
of  the  record  alone  is  sufficient,  is  in  effect  to  defeat  the  doc- 
trine of  notice.  An  inquiry  should  at  least  be  made  among  the 
vendor's  neighbors.^  A  mortgage  was  made  to  a  railroad  com- 
pany, but  was  defectively  recorded.  A  person  subsequently 
purchased  a  part  of  the  mortgaged  premises,  and  "had  heard 
that  there  was  a  defective  railroad  mortgage  upon  tliem,  but 
did  not  look  for  it,  because  his  abstract  did  not  show  it."  He 
was  made  a  defendant  in  an  action  upon  the  mortgage,  and 
it  was  held  that  he  must  be  considered  as  having  had  actual 
notice  of  the  mortgage.^  But  where  a  person  equitably  en- 
titled to  a  conveyance  is  in  the  open  and  adverse  possession 
of  the  premises,  but  the  legal  owner  fraudulently  mortgages  the 
land  to  one  who  acts  in  good  faith,  and  has  no  knowledge 
of  the  possession  and  claims  of  the  party  equitably  entitled 
to  a  conveyance,  the  mortgagee  is  not  chargeable  with  notice 
because  he  did  not  inquire  who  was  in  possession,  and  con- 
fined his  search  to  the  record  title.^  The  records  will  protect 
a  purchaser  examining  them  so  far  as  they  can  protect  him, 
but  he  necessarily  assumes  the  risk  that  the  actual  state  of  the 
title  may  not  correspond  with  that  whicli  the  records  disclose.* 

§  742.     Contradiction     of     information. — Where     the 
grantor  says  that  his  title  has  been  defective,  or  has  been  en- 

«Mr.  Justice  Cooky,  in  Shotwell  2  Pringle   v.   Dunn,   37   Wis.   449, 

V.  Harrison,  30  Mich.  179,  in  which  19  Am.  Rep.  772. 

case  Barnard  v.  Campau,  29  Mich.  3  Harral  v.  Leverty,  50  Conn.  46, 

162,  is  distinguished.  47  Am.  Rep.  608. 

1  Littleton    v.    Gidding,   47    Tex.  *  Reck  v.  Clapp,  98  Pa.  St.  581. 
109. 


1372  THE    LAW    OF   DEEDS.  [CHAP.    XXIll. 

cumbered,  the  purchaser  has  received  sufficient  information  to 
put  him  upon  inquiry,  and  the  fact  that  the  grantor  adds  that 
his  title  has  been  made  perfect,  or  the  encumbrance  has  been 
removed,  will  not  relieve  the  purchaser  from  making  inquiry, 
and  determining  this  fact  for  himself."*  In  one  case  the  court 
said  that  it  must  have  been  known  to  a  purchaser  "that  a 
man  who  was  proposing  to  sell  land,  if  he  was  doing  it  in  fraud 
of  the  heirs  of  his  vendee,  could  easily  manufacture  a  tale 
of  falsehood,  and  would  do  it.  If  it  would  be  sufficient  dili- 
gence to  rely  upon  his  mere  word  of  denial,  and  stop  further 
inquiry  on  that  account,  it  would  not  likely  be  wanting  in 
any  case."  ^  If  a  purchaser  is  informed  by  his  grantor  that 
there  is  a  mortgage  upon  the  property,  but  that  the  mortgage 
has  been  satisfied,  and  he  acts  upon  this  statement  without 
making  further  inquiry,  he  does  so  at  his  own  peril.  Before 
takine  his  deed,  he  should  have  endeavored  to  ascertain  the 
truth  of  the  statement  from  the  mortgagee.'^  But  where  the 
information  is  given  by  a  stranger,  accompanied  by  a  state- 
ment that  the  adverse  claim  no  longer  exists,  the  rule  is  dif- 
ferent.' 

§  743.  What  is  due  inquiry. — It  is  impossible  to  lay 
down  any  absolute,  unqualified  rule  to  determine  what  is  the 
due  inquiry  which  a  person  is  compelled  to  make  when  he 
has  received  such  information  as  to  make  it  his  duty  to  in- 
quire. The  law  holds  him  to  good  faith  and  reasonable  dili- 
gence.    Each  case  must  depend  for  its  decision  upon  its  own 

B  Price  V.  McDonald,  1  Md.  403,  ^  Russell   v.    Petree,    10  Mon.   B. 

54  Am.  Dec.  657;  Littleton  v.  Gid-  184,  186. 

dings,    47    Tex.    109;    Hudson    v.  » Buttrick  v.  Holden,  13  Met.  355 ; 

Warner,  2  Har.  &  G.  415 ;  Bunting  Williamson    v.    Brown,    IS    N.    Y. 

V.  Ricks,  2  Dev.  &  B.  Eq.  130;  Rus-  354;  In  re  Bright's  Trusts,  21  Beav. 

sell  V.  Petree,  10  Mon.  B.  184.    See  430;    Rogers   v.   Wiley,    14  111.  65, 

Rogers  v.  Jones,  8  N.  H.  264 ;  Jones  56  Am.  Dec.  49L 
V.  .Smith,  1  Hare,  43. 

6  Littleton   v.    Giddings,  47   Tex. 
109,  118. 


CHAP.    XXIII.]         THE    DOCTRINE    OF    NOTICE.  1373 

peculiar  facts.  Still  it  is  apparent  to  every  reasonable  man, 
that  by  resort  to  certain  sources  for  information  he  will,  in 
all  probability,  learn  the  truth.  He  may  not  learn  the  true 
facts  after  he  has  made  inquiry,  but  a  neglect  to  prosecute 
his  search  in  certain  directions  is  sufficient  to  show  that  he 
has  not  made  that  due  inquiry  which  the  law  exacts.  He 
should,  for  instance,  make  inquiry  of  his  grantor  as  to  the 
truth  of  any  matter  upon  which  he  is  put  upon  inquiry,  and 
an  omission  to  do  so  would  manifest  an  absence  of  due  care.® 
He  should  also  examine  the  records  which  may  give  him  the 
very  information  he  seeks.  If  he  fails  to  do  so,  he  may  be 
said  to  have  failed  in  making  due  inquiry.*  A  purchaser  is 
guilty  of  bad  faith  if  he  has  knowledge  of  such  facts  as  would 
cause  a  prudent  man  to  make  inquiry,  which  if  followed,  with 
ordinary  diligence  would  cause  him  to  have  knowledge  of  the 
rights  claimed  by  others  adversely  to  the  grantor  and  he  fails 
to  institute  such  an  inquiry.^ 

§  743a.  Due  diligence. — While  due  diligence  is  re- 
quired of  a  purchaser  to  learn  the  status  of  his  grantors  at 
the  time  when  they  acquired  title  and  conveyed  it,  he  is  not 
obligated  to  go  beyond  the  record  for  the  purpose  of  ascer- 
taining if  any  grantor  possessed  an  eC[uity  before  he  acquired 
title  or  whether  he  was  married  or  unmarried  at  the  time  of 
the  acquisition  of  the  equity.'  If,  however,  the  purchaser  is 
aware  that  a  deed  to  another  has  been  placed  in  escrow  but, 
on  account  of  a  failure  to  comply  with  the  conditions,  it  had 
been  returned,  he  is  not  required  to  inquire  as  to  the  disposi- 

9  Sergeant  v.  Ingersoll,  7  Pa.  St.  10  Watts,  13,  28;  Jackson  v.  Van 

340.      See    Espin    v.    Pemberton,    3  Valkenburgh,  8  Cowen,  260. 
De  Gex  &  J.  547.     But  see  Grund-  ^Cooper  v.  Flesner,    (Okla.)    103 

ies  V.  Reid,  107  111.  304.  Pac.   1016,  23  L.R.A.(N.S.)    1180. 

1  Barnard    v.    Campau,   29    Mich.  '  Attebery   v.    O'Neil,   42    Wasli. 

162;  Van  Keuren  v.  Central  R.  R.,  487,  85  Pac  270. 
38  N.  J.  L.  165;  Bellas  r,  McCarty, 


1374  THE    LAW    OF    DEEDS.  [CHAP.    XXIII. 

tion  of  the  deed.*  If  a  person  has  sufficient  notice  to  place 
him  upon  inquiry  and  does  not  take  advantage  of  the  means 
at  his  command  to  learn  the  facts  he  must  be  considered  as 
knowing  the  facts.^  Where  a  purchaser  has  notice  of  an  ad- 
verse claim,  he  ought  to  be  held  to  have  such  information  as 
would  have  been  disclosed  by  a  fair  and  reasonable  inquiry.^ 
He  should  be  charged  with  notice  in  all  cases  not  only  where 
there  is  a  presumption  from  the  evidence  that  he  knew,  but  also 
where  a  just  ground  exists  for  the  inference  that  if  he  had 
exercised  reasonable  diligence,  he  would  have  discovered  the 
truth,'  If  one  has  notice  of  a  fact  which  should  have  caused 
him  to  make  an  inquiry  to  learn  the  truth,  and  if  by  due  dili- 
gence he  might  have  learned  the  truth,  he  will  not  be  allowed 
to  claim  the  protection  afforded  to  a  purchaser  without  no- 
tice.® If  a  purchaser  is  allowed  a  certain  period  in  which  to 
look  up  the  title,  with  the  privilege  of  reconveying  if  he  finds 
the  title  defective,  the  fact  that  he  finds  a  defect  and  does  not 
reconvey  is  not  notice  of  another  defect.'  That  a  purchaser 
has  notice  may  be  proven  by  direct  evidence  or  it  may  be  in- 
ferred from  circumstances,  but  the  proof  should  be  so  clear 
as  to  affect  his  conscience,  and  must  cast  upon  him  the  imputa- 

4  Kenney  v.  Jaynes,  26  Colo.  154,  35  Tex.  Civ.  App.  485,  80  S.  W. 
56  Pac.  562.  562;  Levi  v.  Gardner,  53  S.  C.  24, 

5  Breaux-Renoudet  Cypress  Lum-  30  S.  E.  617 ;  Lyon  v.  Gombert,  63 
ber  Co.  v.  Shadel,  52  La.  Ann.  2094,  Neb.  630,  88  N.  W.  474;  Cornish 
28  So.  292.  V.    Woolverton,    32    Mont.   456,   81 

6  Drey  v.  Doyle,  99  Mo.  459,   12  Pac.  4,   108  Am.   St.  598. 

S.  W.  287.  8  Sicher  v.   Ramboiisek,    193   Mo. 

'Oliver  v.  Sanborn,  60  Mich.  346,  113,  91   S.  W.  68;  Ray  v.  Yarntil, 

27   N.   W.   527.     See,    also,   Ozark  118  Ind.  112,  20  N.  E.  705;  Hawes 

Lumber    Co.    v.    Franks,    156    Mo.  v.   Chaille,    129  Ind.  435,  28  N.   E. 

673,   57  S.  W.  540;   Equitable   Se-  96;  Smith  v.  Schweigerer,  129  Ind. 

curities  Co.  v.  Green,  113  Ga.  1013,  363,  28  N.   E.  696;  Oliver  v.  San- 

39  S.  E.  434;  Converse  v.  Blumrich,  born,  60  Mich.  346,  27  N.  W.  527; 

14    Mich.    109,    90    Am.    Dec.    230 ;  Jackson,  L.  &  S.  R.  Co.  v.  Davison, 

Barnard  v.  Campau,  29  Mich.  162;  65  Mich.  416,  32  N.  W.  726. 

Hayward   v.   Cain,   110  Mass.  273;  » Allen   v.    Anderson,   96    S.    W. 

Gardner  v.  Gardner,  123  Mich.  673,  54. 
82  N.  W.  522;  Derrett  y,  Britton. 


CHAP.    XXIII.]        THE   DOCTRINE   OF    NOTICE.  1375 

tion  of  bad  faith.* 

§  743b.  How  notice  may  be  proven. — If,  after  hav- 
ing pursued  the  inquiry  with  proper  diHgence,  he  fails 
to  obtain  knowledge  of  the  unrecorded  deed,  notice  will 
not  be  presumed.  Notice,  therefore,  is  the  ultimate  fact 
to  be  proven,  and  possession  is  evidence  upon  that  is- 
sue and  it  may  or  may  not  be  sufficient  according  to 
the  circumstances  of  of  the  particular  case;  it  being  un- 
derstood of  course,  that  the  open,  notorious  and  exclusive 
possession  of  the  prior  purchaser  is  sufficient  to  put  the  sub- 
sequent purchaser  upon  inquiry,  and  from  that  fact  alone  no- 
tice of  the  unrecorded  deed  should  be  found,  unless  he  shows 
that  he  pursued  the  inquiry  with  proper  diligence,  and  failed 
to  attain  knowledge  of  the  deed.^  A  person  who  fails  to  make 
inquiry  where  the  land  is  in  the  possession  of  a  third  person 
cannot  urge  that  such  inquiry,  if  prosecuted,  would  have  been 
of  no  avail. ^  "The  general  rule  is,"  said  Mr.  Justice  Rhodes, 
" — except,  in  cases  of  conclusive  presumptions  like  the  record- 
ed deed,  actual  notice  of  the  deed  to  the  agent  of  the  subsequent 
purchaser,  the  recital  in  his  deed  of  a  former  deed,  etc. — that 
whatever  puts  the  party  upon  inquiry,  provided  inquiry  be- 
comes his  duty,  is  in  judgment  of  law  notice  to  him.  Take 
the  case  where  the  holder  of  the  unrecorded  deed  is  personally 
in  the  open,  notorious  and  exclusive  possession  of  the  prem- 
ises, and  who  upon  inquiry  being  made  as  to  his  title,  asserts 
a  claim  derived  from  a  hostile  source;  or  the  case  where  the 
person  apparently  in  possession  is  subsequently  shown  to  be 
the  servant  of  the  owner,  and  who  refuses  to  answer  any  in- 
quiry concerning  the  title  by  which  he  holds;  in  neither  case 
will  notice  be  implied.  And  so  in  every  case,  where  posses- 
sion in  any  of  its  various  characters  is  proven  if  the  facts  of 
the  case  are  not  sufficiently  certain  as  to  time,  place,  persons 
and  circumstances,  to  put  the  subsequent  purchaser  upon  in- 
quiry, or,  if,  after  having  pursued  the  inquiry  with  proper 

iHunton  v.  Wood,  101  Va.  54,  43  spair  v.  Stevenot,  29  Cal.  486. 

S.  E.  186 ;  Fischer  v.  Lee,  98  Va.  »  Randall  v.  Lingwall,  43  Or.  383, 

139,  35  S.  E.  441,  7Z  Pac.  1. 


1376  THE    LAW    OF    DEEDS.  [CHAP.    XXIIL 

diligence,  he  fails  to  attain  the  knowledge  of  the  unrecorded 
deed,  notice  will  not  be  presumed.  Notice,  therefore,  is  the 
ultimate  fact  to  be  proven,  and  possession  is  evidence  upon 
that  issue,  and  it  may  or  may  not  be  sufficient,  according  to 
the  circumstances  of  the  particular  case;  it  being  understood, 
of  course,  that  the  open,  notorious  and  exclusive  possession  of 
the  prior  purchaser  is  sufficient  to  put  the  subsequent  pur- 
chaser upon  inquiry,  and  from  that  fact  alone,  notice  of  the 
unrecorded  deed  should  be  found,  unless  he  shows  that  he 
pursued  the  inquiry  with  proper  diligence,  and  failed  to  at- 
tain knowledge  of  the  deed."  * 

§  744.  Third  persons. — And  in  many  cases  the  proper 
course  to  pursue  would  be  to  make  inquiry  of  third  persons. 
When  such  a  course  is  the  one  that  a  reasonable  and  prudent 
man  would  adopt,  it  must  be  pursued,  or  else  there  will  not 
be  sufficient  diligence  to  enable  the  purchaser  to  say  that  he 
has  made  due  inquiry.* 

§  745.  Presumption  may  be  rebutted. — The  presump- 
tion that  a  person  has  knowledge  of  such  facts  as  he  might 
learn  after  making  due  inquiry,  when  he  has  notice  of  such 
facts  as  to  put  him  upon  inquiry,  is  not  conclusive.  He  may 
rebut  the  presumption  by  showing  that  he  made  due  inquiry 
and  did  not  acquire  the  knowledge.     "The  true  doctrine  on 

*Fair  v.  Stevenot,  29  Cal.  490.  Witherow,  7  Watts.  163;  McGehee 

SLiuleton   v.    Giddings,   47   Tex.  v.    Gondrat,   20   Ala.   95;    Hunt   v. 

t09;  WiUer  v.  Dudley,  42  Ala.  616;  Elmes,    2    De    Gex,    F.    &   J.    578; 

Russell  V.  Sweezey,  22  Mich.  235;  Greenfield  v.   Edwards,  2  De  Gex, 

Penney    v.    Waits,    1    Macn.    &    G.  J.  &  S.  582;  Ware  v.  Lord  Egmont, 

\50,    165;    Broadbent  v.   Barlow,  3  4  De  Gex,  M.  &  G.  460;  Wilson  v. 

De   Gex,   F.  &  J.   570;   Hewitt   v.  McCullough,    23    Pa.    St.    440,    62 

Loosemore,  9  Hare,  449;  Hopgood  Am.  Dec.  347;  Credland  v.  Potter, 

V.  Ernest,  3  De  Gex,  J.  &  S.  116;  Law  R.  10  Ch.  8;  Ratcliffe  v.  Bar- 

Atterbury  v.  Wallis,  8  De  Gex,  M.  nard,  Law  R.  6  Ch.  652;   Roberts 

&  G.  454;  Maxfield  v.  Burton,  Law  v.  Croft,  2  De  Gex  &  J.  1. 
R.   17   Eq.   15.     And   see   Epley  v. 


CHAP.    XXIII.]        THE    DOCTRINE    OF    NOTICE.  1377 

this  subject  is,  that  where  a  purchaser  has  knowledge  of  any 
fact,  sufficient  to  put  him  upon  inquiry  as  to  the  existence 
of  some  right  or  title  in  conflict  with  that  he  is  about  to  pur- 
chase, he  is  presumed  either  to  have  made  the  inquiry  and 
ascertained  the  extent  of  such  prior  right,  or  to  have  been 
guihy  of  a  degree  of  negHgence  equally  fatal  to  his  claim  to 
be  considered  as  a  bona  fide  purchaser.  This  presumption, 
however,  is  a  mere  inference  of  fact,  and  may  be  repelled  by 
proof  that  the  purchaser  failed  to  discover  the  prior  right,  not- 
withstanding the  exercise  of  proper  diligence  on  his  part."  * 
A  deed  conveying  the  premises  to  the  wife 'of  the  tenant  in 
possession  was  duly  executed  and  delivered.  The  deed  con- 
tained a  condition  that  if  the  wife  paid  a  certain  sum  in  a  speci- 
fied time,  the  deed  should  be  in  force,  otherwise  it  should  be 
void.  The  deed  was  not  aclmowledged,  but  was  left  in  the 
hands  of  the  grantor  for  the  purpose  of  having  him  acknowl- 
edge it.  The  grantor  on  the  same  day  made  a  mortgage  to 
another  person.  At  the  time  of  making  the  first  mortgage, 
he  exhibited  the  first  deed  and  declared  that  no  delivery  of  it 

6  Williamson  v.  Brown,  15  N.  Y.  feet,   Acer  v.   Westcott,   46   N.   Y. 

354,  360,  per  Selden,  J.,  and  cases  384,  7  Am.  Rep.  355;   McGehee  v. 

cited.      See,   also,   Jones   v.    Smith,  Gondrat,   20   Ala.   95;    Schweiss   v. 

1  Hare,  43;  Hewitt  v.  Loosemore,  Woodruff,  73  Mich.  473,  41  N.  W. 

9   Hare,   449;   Whitbread   v.    Boul-  Rep.  511;  Thompson  v.  Pioche,  44 

nois,  1  Younge  &  C.  303;  Flagg  v.  Cal.  508;  Parker  v.  Conner,  93  N. 

Mann,  2  Sum.  486,  554;   Hanbury  Y.   118,  45   Am.   Rep.   178;   Bell  v. 

V.   Litchfield,   2   Mylne   &   K.   629;  Davis,  75  Ind.  314;  Wilson  v.  Wil- 

Griffith  V.  Griffith,  1  Hoff.  Ch.  153;  Hams,  25  Tex.  54.     That  the  ques- 

Hunt  V.  Elmes,  2  De  Gex,  F.  &  J.  tion    of    diligence    is    one    of    fact, 

578;  Espin  v.  Pembrrton,  3  De  Gex  see   Schutt  v.  Large,  6  Barb.  373; 

&  J.   547.     In   Rogers   v.   Jones,   8  Nute  v.  Nute,  41  N.  H.  60;  Rogers 

N.  H.  264,  269,  Mr.  Justice  Parker  v.   Wiley,    14  111.   65,  56  Am.   Dec. 

said:      "To    say    that    he    was    put  491;    Parker   v.   Conner,  93   N.    Y. 

upon  inquiry,  and  that  having  made  118,    45    Am.    Rep.    178;    Chiles    v. 

all    due    investigation    without    ob-  Conley,  2  Dana,  21;   McMechan  v. 

taining  any  knowledge  of  title,  he  Griffing,  3   Pick.   149,   15  Am.  Dec. 

was  still  chargeable  with  notice  of  198.     That    it    is    one    of   law,    see 

a    deed,    if    one    really    did    exist,  Morris  v.  Daniels,  35  Ohio  St.  406; 

would  be  absurd."    See,  to  same  ef-  Follak  v.  Davidson,  87  Ala.  551. 
Deeds,  Vol.  H.— 87 


1378 


THE    LAW    OF    DEEDS. 


[chap.    XXIII. 


had  been  made.  There  was  no  evidence  of  any  change  of  pos- 
session or  acts  of  ownership  after  the  execution  of  the  first 
deed,  nor  was  there  any  other  fact  to  give  notice  of  its  being 
a  valid  conveyance.  It  was  held  under  these  circumstances 
that  the  mortgagee  whose  conveyance  was  first  recorded  had 
the  priority.'  But  if  the  purchaser  fails  to  make  due  inquiry, 
the  presumption  of  notice  is  conclusive.' 

§  746.  Second  purchaser  without  notice. — Although 
the  first  purchaser  has  notice,  and  takes  title  accordingly,  yet 
a  second  purchaser  from  him  for  value  and  without  notice 
is  a  bona  fide  purchaser,  and  takes  a  valid  title.'    The  second 


'Rogers  v.  Jones,  8  N.  H.  264. 

8  Maul  V.  Rider,  59  Pa.  St.  167; 
Chicago  etc.  R.  R.  v.  Kennedy,  70 
111.  350;  Kennedy  v.  Green,  3 
Mylne  &  K.  699;  Helms  v.  Chad- 
bourne,  45  Wis.  60;  Loughbridge 
V.  Bowland,  52  Miss.  546;  MuUi- 
son's  Estate,  68  Pa.  St.  212;  Max- 
field  V.  Burton  Law  R.  17  Eq. 
15;  Petcher  v.  Rawlins  Law  R.  11 
Eq.  53;  Briggs  v.  Jones,  Law  R. 
10  Eq.  92;  Bellas  v.  McCarty,  10 
Watts.  13.  On  the  question  as  to 
whether  a  subsequent  purchaser  is 
presumed  to  have  become  such  in 
good  faith  the  authorities  are  di- 
vided. On  one  hand  it  is  held 
that  he  is  presumed  to  be  a  pur- 
chaser in  good  faith,  and  that  he 
who  attacks  the  deed  has  the  bur- 
den of  proof:  Hiller  v.  Jones,  66 
Miss.  636;  Vest  v.  Michie,  31  Gratt. 
149,  31  Am.  Rep.  722;  Roll  v.  Rea, 
50  N.  J.  L.  264;  Foust  v.  Moor- 
man, 2  Ind.  17;  Marshall  v.  Dun- 
ham, 66  Me.  539;  Holmes  v.  Stout, 
10  N.  J.  Eq.  419;  Anthony  v. 
Wheeler,  130  111.  128,  17  Am.  St. 
Rep.  281;  Coleman  v.  Barklew,  27 


N.  J.  L.  357;  Rogers  v.  Wiley,  14 
111.  65,  56  Am.  Dec.  491;  Morrison 
v.  Kelly,  22  111.  610,  74  Am.  Dec. 
169;  Wood  v.  Chapin,  13  N.  Y.  509, 
67  Am.  Dec.  62;  Wilkins  v.  An- 
derson, 11  Pa.  St.  399;  Spofford  v. 
Weston,  29  Me.  140;  Pomroy  v. 
Stevens,  11  Met.  244;  Butler  v. 
StevenSy  26  Me.  484;  McGahee  v. 
Sneed,  1  Dev.  &  B.  Eq.  333;  Bush 
v.  Golden,  17  Conn.  594;  Lacustrine 
Fertilizer  Co.  v.  Lake  Guano  &  F. 
Co.,  82  N.  Y.  476;  Ryder  v.  Rush, 
102  111.  338.  On  the  other  hand, 
it  is  held  that  one  claiming  to  be 
innocent  purchaser  must  prove  the 
facts  showing  him  to  be  such.  See 
MooTt  V.  Curry,  36  Tex.  668;  Wat- 
kins  v.  Edwards,  23  Tex.  447; 
Hamman  v.  Keigwin,  39  Tex.  34; 
Colton  V.  Seavey,  22  Cal.  496;  Gal- 
land  V.  Jackman,  26  Cal.  79,  85 
Am.  Dec.  172;  Landers  v.  Bolton, 
26  Cal.  393;  Root  v.  Bryant,  57 
Cal.  48;  Wallace  v.  Wilson,  30  Mo. 
335 ;  Nolen  v.  Heirs  of  Gwyn,  16 
Ala.  725;  Sillyman  v.  King,  36 
Iowa,  207. 
8  Price  V.   Martin,  46  Miss.  489; 


CHAP.    XXIII.]         THE    DOCTRINE    OF    NOTICE.  1379 

purchaser  is  entitled  to  protection   for  his  own  good   faith. 
It  would  be  inequitable  to  visit  upon  him  the  consequences 
of  the  notice  possessed  by  his  grantor.     An  additional  reason 
for  this  rule  is  the  insecurity  of  title  that  would  otherwise 
result.     If  a  man,  acting  in  the  utmost  good  faith,  paying  a 
valuable  consideration,  and  not  in  any  manner  charged  with 
notice,  should  be  liable  to  lose  his  title  because  the  person  from 
whom  he  purchased  had  notice,  no  title  would  be  safe.     Its 
validity   would   depend   upon   the    fact   that   all   the   persons 
through  whom  the  last  owner  derived  title  were  entirely  free 
from  notice  of  the  rights  of  others,  and  a  title  apparently 
invulnerable  might  at  any  time  be  overthrown.    Where  A  exe- 
cuted" a  deed  to  B,  which  was  never  recorded,  B  conveyed  to 
C  by  a  deed  which  was  placed  on  record,  and  subsequently 
B  surrendered  to  A  the  deed  received  from  him,  and  it  was 
tlien  destroyed,  and  D,  who  knew  of  the  fraudulent  cancel- 
lation of  A's  first  deed,  received  a  deed  from  A,  and  he,  D, 
conveyed  to  E,  a  purchaser  for  a  valuable  consideration,  with- 
out notice  of  the  fraud,  it  was  decided  that  E's  title  was  su- 
perior to  that  of  C.^     "Courts  of  equity  grant  relief  against 

Paris  V.  Lewis,  85  111.  597;  Tomp-  8   West   Coast  Rep.   533;   Sayward 

kins  V.  Powell,  6  Leigh,  576;  Har-  v.    Thompson,    11    Wash.    706,    40 

din   V.   Harrington,    11    Bush,  367;  Pac.  Rep.  379;  Lee  v.  Cato,  27  Ga. 

Pringle  v.   Dunn,  37  Wis.   449,   19  637,  1Z  Am.  Dec.  746;  Hoit  v.  Rus- 

Am.    Rep.   772;    Varick   v.    Briggs,  sell,   56   N.   H.   569;   Bell   v.   Twi- 

6   Paige,   323;    Demarest   v.   Wyn-  light,  18  N.   H.   159,  45  Am.   Dec. 

koop,  3  Johns.  Ch.  129,  8  Am.  Dec.  367;  Moore  v.  Curry,  36  Tex.  668; 

467;  Glidden  v.  Hunt,  24  Pick.  221.  Sydnor  v.  Roberts,  13  Tex.  598,  65 

And  see  Fallass  v.  Pierce,  30  Wis.  Am.  Dec.  84;  Hill  v.  McNichol,  1^ 

443;  Jackson  v.  Van  Valkenburgh,  Me.  314;  Slattery  v.   Schwannecke, 

8  Cowen,  260;  Truluck  v.  Peeples,  118  N.  Y.  543,  23  N.  E.  Rep.  922; 

3  Kelly,  446;  Knox  v.  Silloway,  10  Decker    v.    Boice,    83    N.    Y.    215; 

Me.    201;    Mallory    v.    Stodder,    6  Danbury  v.  Robinson,  14  N.  J.  Eq. 

Ala.   801;    Connecticut   v.   Bradish,  213,   82    Am.    Dec.   244;    Smith    v. 

14    Mass.    296;    Somes    v.    Brewer,  Vreeland,   16  N.  J.  Eq.   198;  Jones 

2  Pick.  184,  13  Am.  Dec.  406 ;  Wood  v.  Hudson,  23  S.  C.  494.    See,  also, 

V.   Mann,   1    Sum.   506;   Galatian  v.  Phillips   v.   Buchanan   etc.   Co.,   151 

Erwin,    Hopk.    Ch.    48;    Snyder   v.  N.  C.  519,  66  S.  E.  603. 
Board  of  Commrs.  of  Boulder  Co.,  ^  Knox  v.   Silloway,  10  Me.  201. 


1380 


THE    LAW    OF    DEEDS. 


[chap.  xxm. 


purchasers  with  notice  for  the  reason  alone  that  to  purchase 
under  such  circumstances  is  a  fraud  on  the  rightful  claimant 
or  owner;  but  this  rule  has  never  been  carried  so  far  as  to 
grant  relief  against  an  innocent  purchaser,  although  his  grant- 
or may  have  purchased  in  bad  faith,  and  to  do  so  would  be 
to  subvert  the  very  principle  upon  which  the  relief  is  given."  ^ 

§  747.  Second  purchaser  with  notice  from  bona  fide 
purchaser. — Where  a  person  has  bought  land  for  value, 
without  notice,  or  in  other  words,  is  a  bona  fide  purchaser, 
he  has  a  valid  title  so  far  as  rights  are  concerned,  of  which 
he  has  neither  actual  nor  constructive  notice.  He  is  the  owner 
of  the  property.  But  his  ownership  would  be  practically  x^alue- 
less  to  him  unless  the  right  of  disposition  was  an  inseparable 
incident  of  it.  To  say  that  he  can  sell  it  only  to  persons  who 
have  no  notice,  is  to  limit  the  field  of  purchasers,  and  possibly 
to  deprive  him  of  the  power  of  disposition  altogether.  His 
title  is  worth  nothing  to  him  unless  he  has  the  right  to  sell  to 
whoever  desires  to  buy.  It  is  for  these  reasons,  a  well-settled 
rule  that  when  a  bona  Ude  purchaser  acquires  land,  he  holds 
it  free  from  equities  of  which  he  had  no  notice,  and  may  con- 
vey his  title  as  he  holds  it  to  others  who  have  notice.^    And  the 


2  Hardin's  Executors  v.  Harring- 
ton, 11  Bush,  367,  372,  per  Pryor, 
J. 

^Funkhouser  v.  Lay,  78  Mo.  458; 
Harrison  v.  Forth,  Prec.  Ch.  51; 
Brandlyn  v.  Ord,  1  Atk.  571;  Va- 
rick  V.  Briggs,  6  Paige,  323;  Lind- 
sey  V.  Rankin,  4  Bibb,  482;  Holmes 
V.  Stout,  3  Green  Ch.  492;  Dana  v. 
Newhall,  13  Mass.  498;  Fletcher  v. 
Peck,  6  Cranch,  87,  3  L.  ed.  162; 
Webster  v.  Van  S'^eenbergh,  46 
Barb.  211;  Moore  v.  Curry,  36  Tex. 
668;  Allison  v.  Hagan,  12  Nev.  38; 
McShirlcy  v.  Birt,  44  Ind.  382; 
Blight's    Heirs    v.    Banks,    6    Mon. 


192,  17  Am.  Dec.  136;  Curtis  v. 
Lunn,  6  Munf.  42;  Shinn  v.  Shinn, 
IS  Bradw.  (111.)  141 ;  Trull  v.  Bige- 
low,  16  Mass.  406,  8  Am.  Dec.  144; 
Lacy  V.  Wilson,  4  Munf.  313;  Hal- 
stead  V.  Bank  of  Kentucky,  4 
Marsh.  J.  J.  554 ;  Ferrars  v.  Cherry, 
2  Vern.  383;  Lowther  v.  Carlton, 
2  Atk,  242;  McQueen  v.  Farquhar, 
11  Ves.  467;  Sweet  v.  Southcote,  2 
Bro.  Ch.  66;  Pringle  v.  Dunn,  2)7 
Wis.  449,  19  Am.  Rep.  772;  Moore 
V.  Allen,  26  Colo.  197,  57  Pac.  698, 
77  Am.  St.  Rep.  255  (citing  text)  ; 
Phillips  V.  Lumber  Co.,  151  N.  C 
519,  66  S.  E.  603 ;  Southern  R.  Co. 


CHAP.    XXIII.]         THE    DOCTRINE    OF    NOTICE. 


1381 


same  rule  in  relation  to  the  rights  of  subsequent  purchasers 
applies  in  case  of  fraud,  as  well  as  in  those  cases  which  we 
have  been  treating.     "If  a  suit  be  brought  to  set  aside  a  con- 


V.  Carroll,  86  S.  C.  56,  67  S.  E.  4; 
Hawkes  v.  Hoffman,  56  Wasn.  120, 
24L.R.A.(N.S.)  1038,  105  Pac.  156; 
Phillips  V.  Buchanan  etc.  Co.,  151 
N.  C.  519,  66  S.  E.  603;  Southern 
Ry.  Co.  V.  Carroll,  86  S.  C.  56,  67 
S.  E.  4;  Vattier  v.  Hinde,  7  Peters, 
252,  8  L.  ed.  675 ;  Griffith  v.  Griffith, 

9  Paige,  315;  Fletcher  v.  Peck, 
6  Cranch,  87,  3  L.  ed.  162; 
Alexander  v.  Pendleton,  8  Cranch, 
462,  3  L.  ed.  624;  Boone  v.  Chiles, 

10  Peters,  177,  9  L.  ed.  388 ;  Boyn- 
ton  V.  Rees,  8  Pick.  329,  19  Am. 
Dec.  326;  Peavy  v.  Deire,  131  Ga. 
104,  62  S.  E.  47;  Hendricks  v.  Cal-. 
loway,  211  Mo.  536,  111  S.  W.  60; 
Rutgers  v.  Kingsland,  3  Halst.  Ch. 
178;  Bracken  v.  Miller,  4  Watts  & 
S.  102;  Abadie  v.  Lobero,  36  Cal. 
390;  Rorer  Iron  Co.  v.  Trout,  83 
Va.  397,  5  Am.  St.  Rep.  285,  2  S. 
E.  Rep.  713;  Hill  v.  T^IcNichol,  76 
Me.  314;  Blatchley  v.  Osborn,  33 
Conn.  226;  Whitfield  v.  Riddle,  78 
Ala.  99,  Bartlett  v.  Varner,  56  Ala. 
580;  Fargason  v.  Edrington,  49 
Ark.  207,  4  S.  W.  Rep.  161 ;  Holmes 
V.  Buckner,  67  Tex.  107,  2  S.  W. 
Rep.  452;  Lewis  v.  Johnson,  68 
Tex.  448,  4  S.  W.  Rep.  644;  Gulf 
etc.  Ry.  Co.  v.  Gill,  5  Tex.  Civ. 
App.  496,  23  S.  W.  Rep.  142 ;  Grace 
V.  Wade,  45  Tex.  522;  Peterson  v. 
McCauley,  (Tex.  Civ.  App.)  25  S. 
W.  Rep.  826;  Arrington  v.  Arring- 
ton,  114  N.  C.  151,  19  S.  E.  Rep. 
351;  Wallace  v.  Cohen,  111  N.  C. 
103,  15  S.  E.  Rep.  892;  Shotwell 
V.  Harrison,  22  Mich.  410;  Foster 
V.  Bailey,  82  S.  C.  378,  64  S.  E. 


423;  Thomason  v.  Berwick,  (Tex. 
Civ.  App.)  113  S.  W.  567;  Brown 
V.  Cody,  115  Ind.  484,  18  N.  E.  Rep. 
9;  Klinger  v.  Lemler,  135  Ind.  11, 
34  N.  E.  Rep.  698;  Arnold  v.  Smith, 
80  Ind.  417;  Trentman  v.  Eldridge, 
98  Ind.  525;  Evans  v.  Nealis,  69 
Ind.  148;  Sharpe  v.  Davis,  76  Ind. 
17;  Doyle  v.  Wade,  23  Fla.  90, 
11  Am.  St.  Rep.  334,  1  So.  Rep. 
516;  Eldridge  v.  Post,  20  Fla.  579; 
Day  v.  Clark,  25  Vt.  397;  Barber 
V.  Richardson,  57  Vt.  408;  Church 
V.  Ruland,  64  Pa.  St.  432;  Ash- 
ton's  Appeal,  IZ  Pa.  St.  153;  Col- 
quitt V.  Thomas,  8  Ga.  258;  Lee  v. 
Cato,  27  Ga.  637,  11  Am.  Dec.  746 
Pierce  v.  Faunce,  47  Me.  507 
Brackett  v.  Ridlon,  54  Me.  426 
Card  V.  Patterson,  5  Ohio  St.  319 
East  V.  Pugh,  71  Iowa,  162;  Hen- 
ninger  v.  Heald,  51  N.  J.  Eq.  74,  29 
Atl.  Rep.  190;  Roll  v.  Rea,  50  N. 
J.  L.  264,  12  Atl.  Rep.  905;  Glid- 
den  v.  Hunt,  24  Pick.  221;  Lacus- 
trine Fer.  Co.  v.  Lake  Guano  &  F. 
Co.,  82  N.  Y.  476;  St.  Joseph  Mfg. 
Co.  V.  Daggett,  84  111.  556;  Bart- 
lett v.  Varner,  56  Ala.  580;  Cala- 
han  V.  Monroe,  56  Ala.  303.  And 
see  Bumpus  v.  Plattner,  1  Johns. 
Ch.  213 ;  Demarest  v.  W5mkoop,  3 
Johns.  Ch.  129,  8  Am.  Dec.  467; 
Mott  v.  Clark,  9  Barr.  399,  49  Am. 
566;  Church  v.  Church,  1  Casey, 
278;  Filby  v.  Miller,  1  Casey,  264; 
City  Council  v.  Page,  Spear  Eq.  159 
See,  also,  Ryan  v.  Staples,  78  Fed. 
563,  23  C.  C.  A.  551;  English  v. 
Lindley,  194  111.  181,  62  N.  E.  522; 
Buck   V.    Foster,    147   Ind.    530,   46 


1382  THE    LAW    OF    DEEDS.  [CHAP.    XXIII. 

veyance  obtained  by  fraud,"  said  Chief  Justice  Marshall,  "and 
the  fraud  be  clearly  proved,  the  conveyance  will  be  set  aside 
as  between  the  parties;  but  the  rights  of  third  persons,  who  are 
purchasers  without  notice  for  a  valuable  consideration,  can- 
not be  disregarded.  Titles  which,  according  to  every  legal 
test,  are  perfect,  are  acquired  with  that  confidence  which  is 
inspired  by  the  opinion  that  the  purchaser  is  safe.  If  there 
be  any  concealed  defect,  arising  from  the  conduct  of  those 
who  held  the  property  long  before  he  acquired  it,  of  which  he 
had  no  notice,  that  concealed  defect  cannot  be  set  up  against 
him.  He  has  paid  his  money  for  a  title  good  at  law;  he  is 
innocent,  whatever  may  be  the  guilt  of  others,  and  equity  will 
not  subject  him  to  the  penalties  attached  to  that  guilt.  All 
titles  would  be  insecure,  and  the  intercourse  between  man 
and  man  would  be  very  seriously  obstructed,  if  this  principle 
be  overturned."  *  Where  a  person  fraudulently  acquires  the 
equity  of  redemption  of  land  on  which  there  is  a  bo7ia  fide 
mortgage,  he  may,  by  purchasing  at  the  mortgage  sale  obtain 
an  indefeasible  title.^ 

§  748.  Former  owner  with  notice. — There  is  another 
rule  in  relation  to  this  subject,  which,  while  it  may  be  con- 
sidered an  exception,  is  clearly  just.  If  the  title  be  conveyed 
to  a  person  without  notice,  he  is  a  bona  -fide  purchaser  and 
may  transfer  his  title,  freed  from  equities  of  which  he  had 

N.   E.  920,  62  Am.    St.   Rep.  427 ;  96  S.  W.  54.    But  see  Johns  v.  Se- 

Livingstone  v.   Murphy,    187   Mass.  well,  33  Ind.  1,  where  it  was  held 

315,    72    N.    E.    1012,    105    Am.    St.  that  where  the  first  purchaser  is  a 

Rep.    400;    Equitable    etc.    Co.    v.  mere  volunteer,  this   rule  does  not 

Sheppard,  78  Miss.  217,  28  So.  842;  apply. 

Ford   V.   Axelson,   74  Neb.  92,   103  *  Fletcher  v.  Peck,  6  Cranch,  87, 

N.  W.   1039;  Paul  v.  Kerswell,  60  133,   3   L.   ed.    162,    177.     And   see 

N.  J.  L,  273,  37  Atl.  1102;  Long  v.  Galatian  v.   Erwin,   Hopk.  Ch.  48; 

Fields,  31   Tex.   Civ.  App.  241,  71  Wood  v.  Mann,  1  Sum.  506;  Somes 

S.    W.    774;    Garner    v.    Boyle,    34  v.  Brewer,  2  Pick.  184  13  Am.  Dec. 

Tex.  Civ.  App.  421,  77  S.  W.  987;  406. 

Allen  y.  Anderson  (Tex.  Civ.  App.)  ^  Punkhouser  v.  Lay,  78  Mo.  458w 


CttAP,    XXIII.]        THE    DOCTRINE    OF    NOTICE,  1383 

no  notice,  to  all  persons  but  a  former  ozvner'oi  the  same  land 
who  had  notice.  When  the  land  comes  back  to  such  a  person 
again,  it  is  subject  to  all  the  equities  that  attached  to  it  while 
he  held  it.^ 

§  749.     Tenant  in  common  without  notice. — A  tenant 

in  common  who  has  notice  cannot  avail  himself  of  the  want 
of  notice  of  his  cotenant.  We  have  referred  to  a  case  in  a 
previous  section  where  this  principle  was  involved.'  The  rea- 
son that  courts  give  to  a  purchaser  without  notice,  protection, 
is,  that  having  acted  in  good  faith,  he  should  not  suffer  from 
the  negligence  of  him  whose  duty  it  was  to  notify  the  public 
of  his  interest  by  the  means  afforded  by  law.  But  if  he  has 
notice,  he  cannot  claim  any  benefit  from  the  fact  that  another 
has  no  notice.  The  latter  may  claim  this  protection,  if  other- 
wise he  would  suffer  injury.  But  this  defense  is  personal  to 
himself.  His  want  of  notice  cannot  avail  a  cotenant,  who 
must  suffer  the  consequences  arising  from  knowledge  of  an 
outstanding  encumbrance.  In  case  of  a  partition,  the  encum- 
brance may  be  enforced  against  the  part  of  the  land  held  by 
him  in  severalty.' 


•Ashton's  Appeal,  73  Pa.  St.  153 
Trentman  v.  Eldridge,  98  Ind.  525 
Church  V.  Ruland,  64  Pa.  St.  432 


than  he  was  justly  entitled  to  in 
making  the  division,  when  he  had 
full  knowledge  of  Blatchley's  rights, 


Kennedy  v.  Daly,  1   Schoales  &  L.  he    clearly    ought    not    to    be    per- 

355 ;  Troy  City  Bank  v.  Wilcox,  24  mitted  now  to  deprive  the  petition- 

Wis.  671 ;  Allison  v.  Hagan,  12  Nev.  er  of  his  rights  to  the  passway,  be- 

38;   Schutt  v.  Large,  6  Barb.  373;  cause    of   an   injury   which   he   has 

Church  v.  Church,  25  Pa.  St.  278;  brought    upon    himself.     The   peti- 

Bourquin  v.  Bourquin,  120  Ga.  115,  tioner   must   suffer  a  great   wrong 

47  S.  E.  639.     And  see  Andrews  v.  if  deprived  of  his  passway,  and  he 

Robertson,  111  Wis.  334,  54  L.R.A.  is  in  every  respect  an  innocent  par- 

673,  87  N.  W.  190,  87  Am.  St.  Rep.  ty.    The  respondent  does  not  stand 

870.  in   this   favorable  light  toward  the 

"^  See    §   734,   ante.  petitioner,    whose    equitable    inter- 

8  Blatchley   v.    Osborn,    33    Conn.  est  he  attempted  to  take  away  on 

226.      The    court    said    that    if    E  the  ground  that  it  had  not  become 

"saw  fit  heedlessly  to  accept  of  less  vested    in    him    by    virtue    of    any 


1384  THE    LAW    OF    DEEDS.  [CHAP,    XXIIL 

§  750.  Notice  of  intention  to  execute  a  deed. — A  pur- 
chaser is  not  bound  by  notice  of  the  intention  of  parties  to 
execute  a  deed.  Until  the  deed  is  actually  executed,  notice 
of  what  the  parties  have  in  contemplation  cannot  affect  him. 
Until  the  intention  has  been  carried  out,  the  title  has  not 
passed,  and  it  may  be  that  the  intention  of  the  parties  will  be 
altered  by  other  causes,  or  may  fail  of  being  consummated. 
A  purchaser  had  information  that  a  draft  of  a  deed  had  been 
prepared,  but  not  that  the  deed  had  in  fact  been  executed.  It 
was  held  that  although  the  deed  had  really  been  executed,  he 
could  be  charged  with  notice  of  it  as  a  deed.'  So,  on  the 
same  principle,  where  one  or  two  creditors  of  an  insolvent 
debtor  knew  only  that  a  deed  was  being  executed  to  convey 
the  land  of  the  debtor  to  the  other  creditor,  and  attached  the 
land  before  the  deed  was  recorded,  but  not  before  its  execu- 
tion and  delivery,  the  lien  of  the  attachment  was  allowed  to 
prevail  against  the  deed.  "It  was  not,  therefore,"  said  Par- 
*  ker,  C.  J.,  "the  knowledge  of  an  intent  to  convey  or  attach, 
which  will  prevent  the  legal  effect  of  an  attachment  by  an- 
other creditor,  which  gets  to  be  first  in  point  of  time,  but  the 
knowledge  of  an  actual  passing  of  the  title  which  is  complete 
against  everyone  with  notice,  whether  by  registry  or  per- 
sonal." » 

§  751.     Fraud  and  mistake. — Where  a  person  is  asked 
if  he  has  an  encumbrance  or  claim  upon  an  estate,  and  answers 

legally   recorded    deed,    and   if   his  *  Gushing  v.   Hurd,  4  Pick.  252, 

-speculation    instead    of    proving    a  256,    16  Am.   Dec.   335.     See,    also, 

isuccess  has  operated  to  his  ptcun-  Brackett  v.  Wait,  6  Vt.  411 ;  Stew- 

iary  injury,  it  is  the  subject  of  less  art  v.  Thompson,  3  Vt.  264;  Den- 

iregret   than   would   have   been   oc-  ton  v.   Perry,   5   Vt.   382;   Warden 

casioned    if    he   had    succeeded    in  v.  Adams,   15  Mass.  233,  237;  Mc- 

unjustly  depriving  the  petitioner  of  Mechan    v.    Griffing,    3    Pick.    149, 

his  equitable  ownership  in  the  pass-  154,    15    Am.    Dec.    198.     And    see 

way."  Priest  v.  Rice,  1  Pick.  168,  11  Am. 

»  Cothay  v.  Sydenham,  2  Bro.  Ch.  Dec.  156. 
291. 


CHAP.    XXIII.]        THE    DOCTRINE    OF    NOTICE.  1385 

that  he  has  not,  he  will,  if  the  circumstances  are  strong  enough 
to  justify  a  court  in  pronouncing  him  guilty  of  fraud,  be  post- 
poned in  the  enforcement  of  his  rights  to  the  party  whom  he 
has  misled.^  "There  is  no  principle  better  settled,  nor  one 
founded  on  more  solid  considerations  of  equity  and  public 
utility,  than  that  which  declares  that  if  one  knowingly,  though 
he  does  it  passively  by  looking  on,  suffers  another  to  purchase 
and  spend  money  on  land,  under  an  erroneous  opinion  of  title, 
without  making  known  his  claim,  he  shall  not  afterward  be 
permitted  to  exercise  his  legal  right  against  such  person. 
...  In  equity,  when  a  man  has  been  silent  when  in  consci- 
ence he  ought  to  have  spoken,  he  shall  be  debarred  from 
speaking  when  conscience  requires  him  to  be  silent."  '  An 
owner  of  land  executed  two  mortgage  deeds  of  it  on  the  same 
day  to  A  and  B,  the  interest  of  A  having  afterward  been 
assigned  to  C.  D  attached  the  land  as  the  property  of  B,  and 
obtained  a  judgment  against  him.  He  sent  an  agent  to  C, 
who  knew  of  the  judgment,  to  ascertain  if  his  mortgage  was 
entitled  to  priority,  and  C  responded  that  there  was  no  pri- 
ority, that  both  instruments  had  been  executed  at  the  same 

■Fay  V.   Valentine,   12   Pick.  40,  Dec.    316;    Berrisford   v.    Milward, 

22  Am.  Dec.  397;   Miller  v.  Bing-  2    Atk.   49;    Evans    v.    Bicknell,   6 

ham,  29  Vt.  82;  Piatt  v.  Squire,  12  Ves.  174;  Plumb  v.  Fluitt,  2  Anst. 

Met.   494;    McKelvey   v.   Truby,   4  432;   Beckett  v.  Cordley,   1   Brown 

Watts  &   S.   323;   Lee  v.   Munroe,  Ch.   353;    Peter   v.    Russell,    1    Eq. 

7  Cranch,  366,  3  L.  ed.  373 ;  Chester  Cas.  Abr.  322 ;  Broome  v.  Beers, 
V.  Greer,  5  Humph.  26;  Heane  v.  6  Conn.  198;  L'Amoureux  v.  Van- 
Rogers,  9  Barn.  &  C.  577;  Stafford  denburgh,  7  Paige,  316,  32  Am.  Dec. 
V.  Vallou,  17  Vt.  329;  Otis  v.  Sill,  635.    And  see,  also,  Bright  v.  Boyd, 

8  Barb.  102;  Lesley  v.  Johnson,  1  Story,  478;  Nicholson  v.  Hooper, 
41  Barb.  359;  Chapman  v.  Ham-  4  Mylne  &  C.  179;  Chautauquc  Co. 
ilton,  19  Ala.  121;  Folk  v.  Beidel-  Bank  v.  White,  6  Barb.  589;  Carr 
man,  6  Watts,  339;  Lee  v.  Kirk-  v.  Wallace,  7  Watts,  394;  Pilling 
Patrick,  1  McCart.  Eq.  (14  N.  J.  v.  Armitage,  12  Ves.  78;  Crocker 
Eq.)  264;  Wendell  v.  Van  Rensse-  v.  Crocker,  31  N.  Y.  507,  88  Am. 
laer,  1  Johns.  Ch.  344;  Schitheimer  Dec.  291. 

T.  Eiseman,  7  Bush,  298;  Storrs  v.  ^  Carr  v.  Wallace,  7  Watts,  394, 

Barker,  6  Johns.  Ch.  166,  10  Am.      400,  per  Rogers,  J.    Sec,  also,  Ep- 


1386  THE   LAW    OF    DEEDS.  [cHAP.    XXIIl. 

time,  and  that  A  had  given  a  writing  to  that  effect.  This 
representation  was  not  true,  as  the  mortgage  to  A  had  been 
dehvcred  first.  But  D  took  a  mortgage  from  B  to  secure  his 
claim,  B  being  insolvent,  and  it  was  held  that  C  was  precluded 
by  these  facts  from  claiming  the  priority  to  which  otherwise 
he  Vi^ould  have  been  entitled.*  But  there  is  no  fraud  if  the 
holder  of  a  recorded  mortgage  prepare  as  counsel  a  subsequent 
mortgage,  and  maintain  silence  as  to  his  own.^  If,  under  a 
contract  to  purchase  land,  the  nonpayment  of  the  joint  and 
several  purchase-money  note  on  a  day  specified  is  to  work  a 
forfeiture,  and  if  two  of  the  obligors  fraudulently  neglect  to 
pay  their  share,  a  forfeiture  thereby  resulting,  and  if,  at  the 
same  time,  they  deposit  the  money  in  the  hands  of  another  to 
avail  himself  of  the  forfeiture,  a  purchaser  with  notice  can 
acquire  no  rights  superior  to  those  of  the  other  obligors.* 
Where  a  deed  is  duly  signed  and  acknowledged  by  husband  and 
wife,  a  purchaser  has  the  right  to  presume  that  the  wife  acted 
freely  and  with  full  knowledge  of  the  effect  of  the  deed.  If 
he  has  no  knowledge  of  the  fraud  of  others  in  inducing  her  to 
sign,  he  is  not  affected.'''  If  the  purchaser  has  notice  before 
completing  his  purchase  that  the  title  of  the  vendor  is  to  be 
disputed  for  fraud,  a  court  of  equity  will  extend  to  him  no 
consideration  if  the  fraud  be  proven.'  If  a  party  procures  a 
judgment  in  partition  by  a  concealment  of  such  material  facts 
as  would,  if  known,  have  defeated  the  action,  and  the  party 
suppressing  has  sold  a  part  of  the  land  set  off  to  him  to  a 
purchaser  who  has  knowledge  of  the  facts,  suppressed,  the 
purchaser  is  not  protected.'  A  grantee  acting  as  the  grantor's 
agent  for  the  sole  purpose  of  conveying  the  property  to  a 

ley  T.  Witherow,  7  Watts,  163;  Mc-  Marston  v.  Brackett,  9  N.  H.  336; 

Cormick    v.    McMurtrie,    4    Watts,  Rice  v.  Dewey,  54  Barb.  455. 

195.  «  Hulett  V.  Fairbanks,  40  Ohio  St. 

*  Broome  v.  Beers,  6  Conn.   198.  233. 

6  Paine   v.    French,   4   Ohio,   318.  "^  Pierce  v.  Fort,  60  Tex.  464. 

See  Palmer  v.   Palmer,  48  Vt.  69;  'Peter  v.  Wright,  6  Ind.    183. 

Brinckcrhoff   v.    Lansing,   4   Johns.  »  Daleschal  v.  Geiser,  36  Kan.  374, 

Ch.  65,  8  Am.  Dec  538.    See,  also,  13  Pac.  595. 


CHAP.    XXIII  ]        THE    DOCTRINE    OF    NOTICE.  1387 

third  person,  knowing  that  the  deed  to  his  grantor  was  fraudu- 
lent, cannot  claim  protection  by  rehance  on  tlie  record  title.* 
An  attorney  employed  by  a  grantor,  and  having  actual  knowl- 
edge of  the  fraud  practiced  by  the  grantee  upon  such  grantor, 
in  procuring  a  deed,  is  not  a  purchaser  in  good  faith  when  he 
immediately  takes  a  conveyance  of  the  land  from  such  gran- 
tee.' A  person  acquiring  title  \vith  full  knowledge  of  prior 
legal  or  equitable  rights  is  not  considered  a  purchaser  in  good 
faith.'  If  a  life  tenant  under  a  will  has  the  power  of  sale  and 
exercises  such  power  by  selling  to  the  injury  of  the  remainder- 
man for  a  price  grossly  inadequate,  to  a  person  whose  agent 
had  full  knowledge  of  all  the  circumstances  of  the  transac- 
tion, the  remainder-man  will  be  protected  and  the  purchaser 
will  hold  subject  to  his  equities.*  A  party  purchasing  with 
notice  that  deeds  by  mistake  of  all  parties  did  not  contain  a 
description  of  a  strip  of  hnd  intended  to  be  conveyed  will  take 
subject  to  the  equities.^  If  a  mortgagee  has  knowledge  that  the 
title  of  his  mortgagor  has  been  obtained  by  fraud  the  fraud 
may  be  set  up  against  him.^  But  if  the  mortgagee  has  no 
knowledge  of  the  fraud  he  will  be  protected  as  an  innocent 
purchaser.' 

§  752.  Negligence. — There  may  be  cases  where  a  per- 
son has  acted  so  negligently  as  to  put  it  in  the  powder  of  an- 
other to  induce  a  third  person  to  purchase  in  ignorance  of  the 
existence  of  other  rights,  and  the  party  guilty  of  such  negli- 
gence may  lose  the  priority  of  his  claim. ^    Thus,  an  owner  of 

1  Ford  V.  Ticknor,  169  ATass.  276,  6  Brummond  v.  Krause,  8  N.  D. 

47  S.  E.  877.  573,  80  N.  W.  686. 

*  Jordan    v.    Cathcart,    126    Iowa,  '  State  v.  Matthews,  44  Kan.  596, 
600,  102  N.  W.  510.  10  L.R.A.  308,  25  Pac.  36;  Parsons 

3  Smith  V.   Schweigerer,  129  Ind.       v.   Crocker,   128  Iowa,  641,   105   N. 
363,  28  N.  E.  696.  W.  162;   Hedden  v.   Cowell,  Zl  N. 

*  Price  V.  Bassett,  168  Mass.  598,      J.  Eq.  89. 

47  N.  E.  243.  »  See  Waldron  v.  Sloper,  1  Drew. 

6  Fond  dn  Lac  Land  Co.  w  ^W\-       193;    Briggs   v.   Jones,   Law    R.    10 

klejohn,  118  Wis.  340,95  N.  W.  142.      Eq.  92;  Rice  v.  Rice,  2  Drew.  73; 


1388  THE    LAW    OF    DEEDS.  [CHAP.    XXIII. 

land  mortgaged  it  to  A,  and  afterward  confessed  judgment 
in  favor  of  B.  Later,  he  and  his  wife  executed  a  deed  of  the 
land  to  C,  and  on  the  day  following  the  execution  of  the  deed, 
A  executed  a  release  to  the  mortgagor  and  former  owner,  recit- 
ing payment  of  the  mortgage  debt,  and  some  days  subsequently 
C  executed  a  mortgage  to  A.  The  court  held,  that  although 
the  mortgage  debt  may  not  have  been  paid,  yet  A  by  releas- 
ing the  mortgage,  and  reciting  payment  of  the  debt,  forfeited 
the  benefit  of  the  mortgage  lien,  and  that  all  liens  attaching 
to  the  property  prior  to  the  date  of  the  second  mortgage  were 
superior  to  it.'  A  somewhat  hard  case  under  this  principle 
is  where  a  mortgagee  canceled  his  mortgage  and  took  a  deed 
of  the  land,  but  prior  to  the  execution  of  the  deed,  the  mort- 
gagor had  executed  a  second  mortgage  upon  the  land.  Under 
these  circumstances  the  decision  was  that  in  the  absence  of 
fraud  the  first  mortgage  would  not  be  revived,  nor  would  the 
second  mortgagee  lose  the  benefit  of  his  priority  obtained  by 
the  cancellation  of  the  first  mortgage.* 

§  753.  Notice  of  right  of  way  from  ordinance. — A  pur- 
chaser has  notice  of  the  existence  of  a  right  of  way  over  land 
from  the  fact  that  the  legislature  had  authorized  the  opening 
of  a  street,  the  council  of  the  city  in  which  the  land  was  situ- 
ated had  passed  an  ordinance  directing  it  to  be  laid  out,  and 

Frazee  v.  Inslee,  2  N.  J.  Eq.  (1  any  proof  of  fraud  by  the  corn- 
Green)  239;  Banta  v.  Garmo  1  plainant  or  his  agent,"  said  the 
Sand.  Ch.  383;  Garland  v.  Harri-  Chancellor,  "when  the  mortgage 
son,  17  Mo.  282;  Woollen  v.  Hillen,  was  canceled  intentionally  and  un- 
9  Gill,  185,  52  Am.  Dec.  690;  Smith  derstandingly  by  the  defendant,  and 
V.  Brackett,  36  Barb.  571 ;  Camp-  a  deed  taken  for  the  same  prop- 
bell's  Appeal,  29  Pa.  St.  401,  12  erty,  I  cannot,  upon  any  safe  prin- 
Am.  Dec.  641 ;  Hewit  v.  Loosemore,  ciple,  revive  the  mortgage,  or  pre- 
9  Hare,  443 ;  Neidig  v.  Whiteford,  vent  the  complainant  from  reaping 
29  Md.  178.  the  benefit  of  his  rights  as  a  first 

8  Neidig    v.    Whiteford,    29    Md.  mortgagee.     This   would  be  giving 

178.  encouragement    to    negligence,    and 

1  Frazee   v.   Inslee,   2   N.   J.   Eq.  destroy  the  value  of  a  public  rec- 

(1  Green)  239.    "In  the  absence  of  ord." 


CHAP.    XXIII.]         THE    DOCTRINE    OF    NOTICE.  1389 

a  survey  had  been  made  by  the  proper  officer,  and  filed  before 
the  purchaser  received  his  deed.^ 

§  754.  Laying  down  sidewalk. — Among  the  evidences 
of  ownership  to  be  considered  in  passing  upon  the  question 
of  notice,  is  the  fact  that  the  party  claiming  title  had  laid 
down  a  sidewalk,  and  it  is  immaterial  whether  the  sidewalk 
is  constructed  by  order  of  the  city  or  not.'  It  may  be  that  this 
circumstance  alone  taken  by  itself  would  not  be  sufficient  to 
create  a  presumption  of  notice;  it  is  nevertheless  a  fact  to  be 
taken  into  consideration.  In  most  of  the  cases  that  come  be- 
fore the  courts  where  the  question  of  notice  is  involved,  notice 
is  generally  dependent  upon  a  collection  of  facts  which,  in  the 
aggregate,  are  considered  sufficient  to  put  a  party  upon  inquiry. 

§  755.  Deed  from  surviving  widow. — A  widow  who 
had  qualified  under  the  statute  in  Texas  as  the  survivor  of  the 
community,  had  sold  land  belonging  to  her  husband  in  his 
lifetime,  and  the  purchaser  had  paid  most  of  the  purchase  price. 
It  was  held  that  as  against  one  who  derived  title  through  an 
unrecorded  deed  made  by  the  husband  in  his  lifetime,  but  who 
never  gave  any  notice  of  his  claim,  the  purchaser  from  the 
widow  would  be  protected  as  an  innocent  purchaser  for  value.* 

§  756.  Notice  of  lien. — It  is  sufficient  to  charge  a  party 
with  notice  of  all  the  particulars  of  a  lien  to  show  that  he  had 
notice  of  the  lien.  If  a  person  takes  a  deed  of  land  upon 
which  there  is  a  mortgage,  of  which  he  had  notice,  he  is  affect- 
ed with  all  the  notice  which  it  is  fair  to  presume  he  would 
obtain  in  regard  to  the  mortgagee's  claim  to  a  lien  if  he  had 
made  inquiry  from  the  mortgagee.^    A  party  is  not  authorized 

2  Bailey   v.    Miltenberger,  31    Pa.  Barr  v.  Kinard,  3  Strob.  73;  Wil- 

St.  37.  link    V.    Morris    Canal    &    Banking 

8  Hatch  V.  Bigelow,  39  III.  546.  Co.,  4   N.  J.   Eq.    (3   Green)    377; 

*  Morris   v.    Meek,   57   Tex.    385.  George  v.  Kent,  7  Allen,  16;   Pike 

'Martin   v.   Cauble,   72   Ind.   67;  v.  Goodnow,  12  Allen,  472;  Taylor 


1390  THE    LAW    OF    DEEDS.  [CHAP.    XXIII. 

to  assume  that  an  encumbrance  is  already  known  to  him  when 
he  hears  that  land  is  encumbered.* 

§  757.  Exception  of  encumbrance  in  covenant. — 
Where  a  deed  contains  a  covenant  of  warranty,  an  exception 
of  a  mortgage  from  such  covenant,  although  the  mortgage 
may  not  be  recorded,  charges  the  grantee  in  the  deed  with 
notice.  In  such  case  no  cause  of  action  can  arise  against  the 
grantor  "in  favor  of  the  grantee  from  a  foreclosure  and  sale 
of  the  mortgaged  property.'  But  where  a  mortgagor  inserts 
in  the  mortgage  a  covenant  "to  pay  and  discharge  all  legal 
mortgages  and  encumbrances,  of  whatever  nature  and  de- 
scription," on  the  mortgaged  property,  a  person  who  acquires 
title  by  deed  from  the  mortgagor  is  not  put  upon  inquiry  as 
to  any  mortgages  or  encumbrances  not  of  record.  And  if  the 
mortgage  is  not  entitled  to  registration,  the  grantee  would  not 
be  charged  with  constructive  notice  of  it,  though  it  may  in  fact 
be  spread  upon  the  records.' 

§  758.     Deed    modified    by    annexed    schedule. — The 

general  words  of  conveyance  in  a  deed  may  be  modified  by  an 
annexed  schedule,  and  a  purchaser  takes  with  notice  of  the 
facts  stated  in  such  schedule.  An  owner  of  land  had  con- 
veyed certain  lots  to  a  person  by  a  deed  absolute  in  form, 
but  intended  as  security  for  the  payment  of  certain  notes. 
Subsequently  he  conveyed  all  his  property,  real  and  personal, 
without  any  particular  description  in  the  body  of  the  deed, 
but  in  a  schedule  which  he  annexed  to  the  deed,  the  land  con- 

V.   Stibbert,  2  Ves.  Jr.  437;  Jones  Y.    269;    Wilson    v.    Vaughan,    61 

V.  Williams,  24  Beav.  47;  Gulf  etc.  Miss.  472.     But  see  Morris  v.  Mur- 

Ry.   Co.  V.  Gill,  5  Tex.   Civ.  App.  ray,  82  Ky.  36. 

496,  23  S.  W.  Rep.   142;  Ijames  v.  6  Jones  v.  William?,  24  Beav.  47. 

Gaither,   93    N.    C.    358;    Webb    v.  "?  Morrison  v.  Morrison,  38  Iowa, 

Robbins,    V    Ala.    176.      See,    also,  11,  80. 

Simons  v.  First  Nat.  Bank,  93  N.  8  Racouillat  v.  Rene,  32  CaL  4Sa 


CHAP.    XXIII.]         THE    DOCTRINE    OF    NOTICE.  1391 

veyed  as  security  for  the  payment  of  the  notes  was  described 
as :  "Lots  of  ground  in  Stuart  Street,  the  title  to  which  is  in 
name  of  David  Dunham,  given  as  collateral  security  to  pay 
certain  notes."  This  deed,  absolute  in  form,  but  in  reality  a 
mortgage,  had  never  been  recorded,  but  the  court  held  that 
the  language  of  the  schedule  was  notice  of  its  existence  to 
the  grantee,  and  that  he  could  not  obtain  a  priority  by  the 
first  registration  of  his  deed.^ 

§  759.     Notice  from  title  deeds  not  between  parties. — 

In  controversies  between  grantor  and  grantee,  for  the  pur- 
pose of  determining  their  respective  rights,  the  rule  that  a 
grantee  is  chargeable  with  constructive  notice  of  circumstances 
which  came  to  the  knowledge  of  his  attorney  or  agent,  for  the 
purchase  or  in  the  examination  of  the  title,  or  that  notice  of  a 
deed  is  constructive  notice  of  its  contents,  does  not  apply.  The 
rules  as  to  constructive  notice  are  adopted  by  the  courts  for 
the  purpose  of  upholding  the  prior  equitable  rights  of  third 
parties  against  subsequent  purchasers,  who  are  endeavoring  to 
defeat  such  prior  rights.  Therefore,  if  an  owner  of  land,  mis- 
apprehending his  legal  rights  sells  the  land  which  had  been 
constructively  dedicated  for  the  purposes  of  a  public  street, 
under  the  terms  of  the  deeds  of  adjoining  lots  to  prior  pur- 
chasers, and  represents  that  the  lot  will  not  be  taken  for  a 
street  without  payment  to  the  grantee  of  its  full  value,  but 
does  not  communicate  the  facts  upon  which  are  founded  the 
rights  of  the  prior  purchasers,  the  grantee,  if  the  lot  is  in 
fact  worth  nothing  at  the  time  of  the  purchase,  is  entitled  to  re- 
lief against  a  bond  and  mortgage  given  for  the  purchase 
money.  ^ 

9  Dunham  v.  Dey,  15  Johns.  555,  l  Champlin  v.  Laytin,6  Paige,  189. 

8  Am.  Dec.  282. 


1392 


THE    LAW    OF    DEEDS.  [CHAP.    XXIII. 


PART    II. 


Possession. 


§  760.  Possession  as  notice. — It  is  well  established 
both  in  England  and  in  this  country,  that  the  open,  visible, 
notorious,  and  exclusive  possession  of  land,  is  either  notice 
itself  of  the  rights  of  the  party  in  possession,  or  is  sufficient  to 
put  a  person  upon  inquiry  as  to  his  rights.'    Where,  therefore, 


2  For  an  exhaustive  discussion  of 
possession  of  land  as  notice  of  ti- 
tle, see  13  L.R.A.(N.S.)   49-140. 

»  Haworth  v.  Taylor,  108  111.  275 ; 
Penny  v.  Watts,  1  Macn.  &  G.  150; 
Holmes  v.  Powell,  8  De  Gex,  M. 
&  G.  572;  Hoover  v.  Redmond,  15 
Bradw.  (111.)  427;  Taylor  v.  Stib- 
bert,  2  Ves.  437;  Allen  v.  An- 
thony, 1  Mer.  282 ;  Galley  v.  Ward, 
60  N.  H.  331;  Rowe  v.  Ream,  105 
Pa.  St.  543;  Lord's  Appeal,  105 
Pa.  St.  451;  Yates  v.  Hurd,  8 
West  C.  Rep.  276;  Peasley  v.  Mc- 
Fadden,  9  West  C.  Rep.  715 ;  Phil- 
lips V.  Costley,  40  Ala.  486;  Woods 
v.  Farmere,  7  Watts,  382,  32  Am. 
Dec.  772;  Perkins  v.  Swank,  43 
Miss.  349;  Johnson  v.  Clark,  18 
Kan.  157;  Barnes  v.  Union  School 
Township,  91  Ind.  301 ;  Strickland 
V.  Kirk,  51  Miss.  795;  Webber  v. 
Taylor,  2  Jones  Eq.  9;  Preston  v. 
Nash,  76  Va.  1;  Sears  v.  Mun- 
son,  23  Iowa,  380;  Rogers  v.  Jones, 
8  N.  H.  264;  Cabeen  v.  Brecken- 
ridge,  48  111.  91 ;  Truesdale  v.  Ford, 
2,7  111.  210;  Dunlap  v.  Wilson,  32 
111.  517;  Baynard  v.  Norris,  5  Gill, 
468,  46  Am.  Dec.  647;  Cox  v.  Pra- 
ter, 67  Ga.  588;  Moss  v.  Atkin- 
son, 44  Cal.  3;  Killey  v.  Wilson, 
33  Cal.  690;   Maloney  v.   Shattuck, 


15  Bradw.  (111.)  44;  Bank  of  Or- 
leans V.  Flagg,  3  Barb.  Ch.  316; 
Sailor  V.  Hertzog,  4  Whart.  259; 
School  District  v.  Taylor,  19  Kan. 
287;  Noyes  v.  Hall,  7  Otto,  34; 
Loughbridge  v.  Bowland,  52  Miss. 
546;  McKinzie  v.  Perrill,  15  Ohio 
St.  162;  Diehl  v.  Page,  3  N.  J. 
Eq.  (2  Green  Ch.)  143;  Massey  v. 
Hubbard,  18  Fla.  688;  Ringold  v. 
Bryan,  3  Md.  Ch.  488;  Hull  v. 
Noble,  40  Me.  459;  Tankard  v. 
Tankard,  79  N.  C.  54;  Russell  v. 
Sweezey,  22  Mich.  235 ;  Morrison 
V.  Wilson,  13  Cal.  494,  73  Am. 
Dec.  593;  Glidewell  v.  Spaugh,  26 
Ind.  319;  Edwards  v.  Thompson, 
71  N.  C.  177;  Warren  v.  Richmond, 
S3  111.  52;  Keyes  v.  Test,  ZZ  111. 
3i7;  Reeves  v.  Ayers,  38  111.  418; 
Baldwin  v.  Johnson,  Saxt.  Ch.  441 ; 
Westbrook  v.  Gleason,  79  N.  Y. 
23 ;  Farmers'  Loan  &  Trust  Co.  v. 
Maltby,  8  Paige,  361;  Brown  v. 
Gaffney,  28  111.  149;  Stagg  v.  Small, 
4  Bradw.  (111.)  192;  Cowen  v. 
Loomis,  91  111.  132;  Stafford  v. 
Lick,  7  Cal.  479;  Morrison  v. 
March,  4  Minn.  422;  Doyle  v.  Stev- 
ens, 4  Mich.  87;  Havens  v.  Dale, 
18  Cal.  359;  Groff  v.  Ramsey,  19 
Minn.  44;  Emmons  v.  Murray,  16 
N.   H.  385;   Woodson   v.   McCune, 


CHAP.    XXIII.]        THE    DOCTRINE    OF    NOTICE. 


1393 


a  person  is  in  possession  of  land  under  an  unrecorded  agree- 
ment with  the  owner  for  its  purchase,  his  possession  is  suffi- 
cient notice  to  put  others  on  inquiry,  and  if  they  purchase 


17  Cal.  298;  Mullins  v.  Wimberly, 
50  Tex.  457;  Laraway  v.  Larue,  63 
Iowa,  407;  Laroe  v.  Gaunt,  62  Tex, 
481;  Moreland  v.  Richardson,  24 
Bcav.  33;  James  v.  Litchfield,  Law 
R.  9  Eq.  51;  Wilson  v.  Hart,  Law 
R,  1  Ch.  App.  463 ;  Taylor  v.  Stib- 
'  bert,  2  Ves.  Jr.  437.  And  see  Pell 
V.  McElroy,  36  Cal.  268;  Dauben- 
speck  V.  Piatt,  22  Cal.  330;  Brad- 
ley V.  Snyder,  14  111.  263,  58  Am. 
Dec,  564;  Watkins  v.  Edwards,  23 
Tex.  443;  Brown  v.  Volkening,  64 
N.  Y.  l(i;  Bogue  v.  Williams,  48 
111.  371;  Tunson  v.  Chamblin,  88 
111.  378;  Uhl  v.  Rau,  13  Neb.  357 
Cent,  R.  R.  v.  McCullough,  59  III 
166;  Warren  v.  Richmond,  53  111 
52;  Smith  v.  Gibson,  15  Mina  89 
O'Rourke  v.  O'Connor,  39  Cal.  442 
Button  V.  Warschauer,  21  Cal.  609, 
82  Am.  Dec.  765;  Rogers  v.  Hus 
sey,  36  Iowa,  664;  Van  Kueren  v 
Cent.  R.  R.  Co.,  38  N.  J.  L.  (9 
Vroom),  165;  Dixon  v.  Lacoste, 
1  Smedes  &  M.  107;  Stafford  Bank 
V.  Sprague,  17  Fed.  Rep.  784.  See 
Harral  v.  Leverty,  50  Conn.  46,  47 
Am.  Rep.  608;  Rorer  Iron  Co.  v. 
Trout,  83  Va.  397,  5  Am.  St.  Rep. 
285.  See,  also.  Gray  v.  Zellmer, 
66  Kan.  514,  72  Pac  228;  Butler 
V.  Thweatt,  119  Ala.  325,  24  So. 
545;  Neal  v.  Jones,  100  Ga.  765, 
28  S.  E.  427;  Burr  v.  Loomer,  103 
Ga.  159,  29  S.  E.  692;  Baldwin 
V.  Sherwood,  117  Ga.  827,  45  S.  E. 
216;  Austin  v.  So.  etc.  Assn.,  122 
Ga.  440,  50  S.  E.  382;  Bridger  v. 
Exchange  Bank,  126  Ga.  821,  8 
LR,A.(N.S.)  463,  56  S.  E.  91,  115 
Deeds,  Vol.  H.— 88 


Am.  St.  Rep.  118;  Mason  v.  Mul- 
lahy,  145  111.  383,  34  N.  E.  36; 
Joiner  v.  Duncan,  174  111.  252,  51 
N,  E.  323;  Dyer  v.  Eldridge,  136 
Ind.  654,  Ze  N.  E.  522;  Rothschild 
V,  Leonhard,  33  Ind.  App.  452,  71 
N.  E.  673;  Kruger  v.  Walker,  94 
la.  506,  63  N.  W.  320;  Corey  v. 
Smalley,  106  Midi.  257,  64  N.  W. 
13,  58  Am.  St.  Rep.  474;  Holmes 
V.  Deppert,  122  Mich.  275,  80  N. 
W.  1094;  Banks  v.  Allen,  127  Mich. 
80,  86  N.  W.  383 ;  Bartlett  v.  Smith, 
146  Mich.  188,  109  N.  W.  260,  117 
Am.  St.  Rep.  625 ;  Thompson  v. 
Borg,  90  Minn.  209,  95  N.  W.  896; 
Stovall  V.  Judah,  74  Miss.  747,  21 
So.  614;  Wiggenhorn  v,  Daniels, 
149  Mo.  160,  50  S,  W,  807;  Mul- 
lins V.  Butte  etc.  Co.,  25  Mont, 
525,  65  Pac.  1004,  87  Am.  St.  Rep. 
430;  Scharman  v.  Scharman,  38 
Neb.  39,  56  N.  W.  704;  Kahre  v. 
Rundle,  38  Neb.  315,  56  N.  W. 
888;  Pleasants  v.  Blodgett,  39  Neb. 
741,  58  N.  W.  423,  42  Am.  St.  Rep. 
624;  Monroe  v.  Hanson,  47  Neb. 
30,  66  N.  W.  12;  Best  v.  Zuta- 
vern,  53  Neb.  604,  74  N.  W.  64; 
Draper  v.  Taylor,  58  Neb.  787,  79 
N.  W.  709;  Fall  v.  Fell,  75  Neb, 
104,  106  N,  W.  412;  Holland  v. 
Brown,  140  N.  Y.  344,  35  N.  E. 
577;  Cornell  v.  Maltby,  165  N.  Y. 
557,  59  N,  E.  291;  Red  River  etc. 
Co.  V.  Smith,  7  N.  D.  236,  74  N. 
W.  194;  O'Toole  v.  Omlie,  8  N. 
D.  444,  79  N.  W.  849;  Dickson  v. 
Dows,  11  N.  D.  407,  92  N.  W. 
798;  Smith  v.  Phillips,  9  Okl.  297, 
60  Pac.  117;  Tate  v.  Clement,  176 


1394 


THE    LAW    OF    DEEDS. 


[chap.    XXIII. 


the  land  from  the  owner,  the  contract  of  purchase  may  be  en- 
forced against  them.*  "It  is  the  obvious  design  of  our  record- 
ing laws  to  protect  purchasers  fom  latent  legal  or  equitable 
titles.  Hence,  its  operation  in  such  cases  in  giving  notice  to 
the  world  protects  all  persons  against  fraud  by  the  grantors 
wrongfully  selling  lands  a  second  time.  And,  as  a  general 
rule,  when  the  same  person  has  executed  two  deeds  for  the 
same  land,  the  first  deed  recorded  will  hold  the  title,  unless  the 
junior  grantee  has  purchased  with  notice,  in  which  case  a  prior 
recording  of  his  deed  would  not  avail  against  the  prior  deed 
of  which  he  had  notice.  The  statute  has  only  given  the  pri- 
ority to  the  junior  deed  first  recorded,  when  the  grantee  has 
acted  in  good  faith.  If,  at  the  time  he  makes  the  purchase, 
he  has  notice  of  an  elder  unrecorded  deed,  he  must  be  regarded 
as  acting  in  bad  faith,  and  neither  principles  of  justice  nor 
the  policy  of  the  law  will  permit  him  to  avail  of  the  priority 
of  the  record.  It  then  follows  that  actual,  visible,  open  pos- 
session being  regarded  as  notice  equal  to  the  recording  of  the 
deed  under  which  the  grantee  is  in  possession,  the  person  hold- 
ing the  first  conveyance,  and  being  in  open,  visible  possession 
before  the  junior  deed  is  recorded,  must  be  held  to  be  the 
owner  of  the  title,  as  against  the  grantee  in  the  junior  deed."  ^ 
Where  an  owner  of  a  quarter  section  of  land  conveys  by  deed 
one  acre  of  the  tract  to  a  school  district,  the  school  district 


Pa.  550,  35  Atl.  214;  Ramirez  v. 
Smith,  94  Tex.  184,  59  S.  W.  258; 
Jinks  V.  Moppen,  (Tex.  Civ.  App.) 
80  S.  W.  390;  Frugia  v.  True- 
heart,  (Tex.)  106  S.  W.  736;  Lynch 
V.  Coviglio,  17  Utah,  106,  53  Pac. 
983;  Lowther  Oil  Co.  v.  Miller- 
Sibley  Oil  Co.,  53  W.  Va.  501,  44 
S.  E.  433,  97  Am.  St.  Rep.  1027; 
Schwoebel  v.  Storrie,  (N.  J.  Eq.) 
74  Atl.  969;  Smith  v.  Fuller,  152 
N.  C.  7,  67  S.  E.  48;  Hughes 
Bros.  V.  Redus,  90  Ark.  149,  118 
a  VV.  414;   Brady  v.   Sloman,   156 


Mich.  423,  120  N.  W.  795;  Morris 
V.  Blunt,  35  Utah,  194,  99  Pac. 
686;  Lucy  v.  Lucy,  107  Minn.  432, 
120  N.  W.  754;  Seberg  v.  la.  etc. 
Bank,  141  la.  99;  119  N.  W.  378; 
Runyan  v.  Snyder,  45  Colo.  156, 
100  Pac.  420.  But  see  Foster  v. 
Bailey  (S.  C  statute)  82  S.  C. 
378,  64  S.  E.  424. 

*  Moss  V.  Atkinson,  44  Cal.  3 ; 
Hyde  v.  Mangan,  88  Cal.  327,  and 
cases  cited. 

^  Cabeen  v.  Breckenridge,  48  IlL 
91,  93,  per  Walker,  J. 


CHAP.    XXIII.]         THE    DOCTRINE    OF    NOTICE.  1395 

taking  immediate  possession  of  such  acre,  building  a  school- 
house  thereon  and  occupying  the  same  for  school  purposes, 
but  never  recording  its  deed,  and  subsequently  the  grantor 
mortgages  the  whole  of  the  quarter  section  to  secure  a  promis- 
sory note,  and  the  mortgage  is  recorded  and  another  purchases 
the  note  and  mortgage  before  maturity,  having  previous- 
ly examined  the  records  and  made  inquiries  of  the  mortgagor 
as  to  the  existence  of  encumbrances,  but  obtaining  no  notice 
concerning  them,  and  having  no  actual  notice  of  the  claims 
of  the  school  district,  still,  the  possession  of  the  school  district 
is  sufficient  to  cause  him  to  inquire  of  it  or  of  its  agents  as  to 
its  interests  in  the  property.  For  a  failure  to  do  so,  the  inter- 
est of  the  purchaser  of  the  note  and  mortgage  becomes  sub- 
ordinate to  the  equities  of  the  school  district.^  Although  the 
land  may  be  incorrectly  described  in  the  deed,  yet  actual  pos- 
session as  against  a  subsequent  purchaser  with  knowledge,  con- 
fers title.'  Where  an  owner  of  land  conveys  it  by  deed  of 
trust  to  secure  a  debt,  and  a  year  later  executes  a  contract  of 
purchase,  the  vendee  paying  the  price  and  holding  possession 
continuously  and  notoriously  without  knowledge  of  the  trust 
deed,  which  was  not  recorded  until  eight  years  after  its  exe- 
cution; and  three  years  after  its  registration  and  eleven  years 
after  its  execution  the  land  is  advertised  for  sale  under  the 
trust  deed,  the  vendee's  rights  are  superior  to  those  of  the 
cestui  que  trust  in  the  trust  deed.^    Notice  by  possession  never 

*  School    District    v.    Taylor,    19  he    was    never    in    possession,    and 

Kan.  287.  others  had  controlled  the  property 

'Pike  V.  Robertson,  79  Mo.  615;  for  many  years,  when  an  examina- 
White  V.  White,  105  111.  313.  And  tion  would  have  disclosed  convey- 
see,  also,  Warbritton  v.  Demorett,  ances  inconsistent  with  the  full  va- 
129  Ind.  346.  But  see,  where  pos-  lidity  of  the  deed  under  which  the 
session  was  held  insufficient,  Lan-  grantor  claimed,  and  when  the  pur- 
ford  v.  Weeks,  38  Kan.  319,  5  Am.  chase  price  was  grossly  inadequate, 
St.  Rep.  748.  a  purchaser  may  be  charged   with 

8  Preston    v.     Nash,    76    Va.     1.  notice  of  the  invalidity  of  his  gran- 

Where    a    grantor   held   title   by    a  tor's    deed :    Knapp    v.    Bailey,    79 

deed    invalid    in    equity,    and   when  Me.   195,  1  Am.   St.  Rep.  295. 


1396  THE    LAW    OF    DEEDS.  [CHAP.    XXIU. 

extends  beyond  the  rights  of  the  occupant  and  of  those  under 
whom  he  claims.* 

§  761.  Possession  by  grantor — Comments. — Where  a 
grantor  remains,  after  the  execution  of  a  deed,  in  possession 
of  the  land  which  he  has  conveyed,  the  question  of  whether 
his  possession  under  these  circumstances  is  such  that  a  person 
contemplating  a  purchase  or  acquiring  some  interest  in  the 
land  is  compelled  to  take  notice  of  the  rights  of  such  grant- 
or, which  he  may  have  reserved,  or  which  may  exist  dehors 
his  deed,  is  a  question  on  which  the  authorities  are  not  agreed. 
By  one  class  of  decisions  the  rule  laid  down  is  that  a  grantor 
remaining  in  possession  is  entitled  to  protection  to  whatever 
rights  he  may  have  by  virtue  of  the  notice  thereof  given  by 
his  possession,  in  the  same  manner,  and  to  the  same  extent, 
that  any  other  person  would  be.  While  on  the  other  hand,  by 
another  class  of  decisions,  the  rule  is  said  to  be  that  a  person 
finding  that  the  one  in  possession  has  conveyed  away  his  rights 
by  a  deed  duly  recorded,  is  not  obliged  to  go  further  and 
inquire  whether  the  grantor  has  not  some  right  or  interest  not 
disclosed  by  the  record,  and  to  which  his  possession  may  be 
referred. 

§  762.  View  that  possession  is  notice  of  grantor's 
rights. — It  is  said  by  the  cases  holding  that  his  possession 
is  notice,  that  where  the  grantor  continues  in  the  open  and  ad- 
verse possession  of  land  after  the  formal  execution  of  a  deed, 
this  fact  is  in  conflict  with  the  legal  effect  of  his  deed.  It  is 
evidence  that  he  still  retains  some  interest  in  the  land  which 
by  the  record  he  has  absolutely  conveyed.  A  purchaser  is  put 
upon  inquiry,  and  is  subject  to  the  same  rules  as  would  gov- 
ern if  the  party  in  possession  was  a  stranger  to  the  record. 
Accordingly,  where  A,  an  owner  of  land,  conveyed  it  by  deed 
to  B,  which  was  immediately  recorded,  A  not  receiving  any 

9  Smith  V.   Fuller,   152  N.   C.   7,      67  S.  E.  4a  f 


CHAP.    XXIII.]        THE    DOCTRINE    OF    NOTICE. 


1397 


portion  of  the  purchase  money,  although  the  deed  recited  its 
payment,  and  B  subsequently  conveyed  the  land  to  C,  but  A 
remained  in  possession  after  the  execution  of  his  deed,  and 
was  in  possession  at  the  time  B's  deed  was  executed,  the  latter 
being  insolvent  when  he  executed  his  conveyance,  it  was  held 
in  an  action  brought  by  A  to  enforce  a  vendor's  lien  for  the 
purchase  money,  that  his  continued  possession  was  sufficient 
to  impart  notice  of  his  rights.^    Where  A  conveyed  his  farm 


iPell  V.  McElroy,  36  Cal.  268; 
Illinois  Cent.  R.  R.  Co.  v.  Mc- 
Cullough,  59  111.  166;  Wright  v. 
Bates,  13  Vt.  341 ;  Webster  v.  JNIad- 
dox,  6  Me.  256;  Metropolitan  Bank 
V.  Godfrey,  23  111.  579;  McKecknie 
V.  Hoskins,  23  Me.  230;  Grimstone 
V.  Carter,  3  Paige,  421,  24  Am. 
Dec.  230;  Hopkins  v.  Garrard,  7 
Mon.  B.  312;  Hansen  v.  Berthel- 
son,  19  Neb.  433;  Lamoreu  v.  Mey- 
ers, 68  Wis.  34,  60  Am.  Rep.  831; 
Stevens  v.  Castel,  63  Mich.  Ill; 
Davis  V.  Demming,  12  W.  Va.  246; 
Daubenspeck  v.  Piatt,  22  Cal.  330; 
McLaughlin  v.  Shepherd,  32  Me, 
143,  52  Am.  Dec.  646;  Boggs  v. 
Anderson,  50  Me.  161 ;  White  v. 
White,  89  111.  460;  Ford  v.  Mar- 
call,  107  111.  136;  New  v.  Wheaton, 
24  Minn.  406;  Turman  v.  Bell,  54 
Ark.  273,  26  Am.  St.  Rep.  35.  See 
Eylar  v.  Eylar,  60  Tex.  315.  In 
Pell  V.  McElroy,  supra,  Mr.  Jus- 
tice Sprague,  in  delivering  the  opin- 
ion of  the  court,  said  (p.  273)  : 
"The  simple,  independent  fact  of 
possession  is,  sufficient  to  raise  a 
presumption  of  interest  in  the 
premises  on  behalf  of  the  occu- 
pant. And  we  can  discover  no  just 
or  rational  ground  for  giving  to 
this  fact  less  significance  as  notice 
to  a  party  purchasing  the  legal  ti- 


tle from  one  not  in  possession,  in 
consequence  of  the  fact  that  such 
occupant  had  by  deed  divested  him- 
self of  the  legal  title.  For  instance, 
should  a  vendor  of  lands  make  an 
absolute  deed  which  is  put  of  rec- 
ord, and  immediately  take  from 
the  grantee  a  mortgage  upon  the 
same  lands  to  secure  a  part  or  all 
the  purchase  money,  by  the  terms 
of  which  mortgage  he  is  to  re- 
tain the  possession  until  the  entire 
purchase  money  is  paid,  and  such 
vendor  and  mortgagee  should  con- 
tinue in  the  exclusive  possession 
with  his  mortgage  unrecorded,  it 
is  very  clear  that,  under  the  deci- 
sions heretofore  referred  to,  a  par- 
ty purchasing  of  his  vendee  while 
such  a  possession  was  in  the  ven- 
dor would  take  the  premises  with 
presumptive  notice  of  the  equities 
of  the  occupant.  So,  if  a  vendor 
of  land  make  an  absolute  deed 
which  is  put  of  record,  and  take  a 
note  for  the  purchase  money,  and 
immediately  receive  from  his  ven- 
dee a  reconveyance  by  absolute 
deed  not  put  of  record,  which,  by 
a  verbal  agreement  of  the  parties, 
he  is  to  retain,  with  the  posses- 
sion, as  security  for  the  payment 
of  the  purchase  money,  while  such 
possession  continued,  it  manifestly 


1398 


THE    LAW    OF    DEEDS. 


[chap.  xxni. 


to  B  by  a  deed  duly  registered,  at  the  same  time  taking  back 
a  conveyance  to  himself  and  two  minor  sons,  the  latter  deed 
not  being  recorded,  but  A  remaining  in  possession  as  before, 
it  was  held  this  possession  was  sufficient  to  give  notice  of  the 
second  deed.^  If  a  vendor  of  land  leaves  a  deed,  after  exe- 
cution, in  the  hands  of  the  officer  taking  the  acknowledgment, 
for  dehvery  to  a  third  person,  to  hold  as  an  escrow  until  the 
payment  of  the  purchase  money,  but  the  deed,  without  delivery 


would  operate  as  presumptive  no- 
tice of  his  equities  to  purchasers  of 
his  grantees.  So,  in  this  case,  if 
before  or  at  the  maiunty  of  the 
note  given  by  McEh-oy  for  the 
purchase  money,  he  (McElroy) 
had  reconveyed  the  land  to  Pell 
in  consideration  of  the  surrender 
of  his  notes,  and  then,  before  Pell 
had  put  the  deed  of  record,  and 
while  he  was  still  in  the  exclusive 
possession  with  his  deed  in  his  poc- 
ket, McElroy  had  sold  and  con- 
veyed to  defendants  Kelly  and 
Hearst,  it  would  hardly  be  con- 
tended that  they  could  be  pro- 
tected as  purchasers  in  good  faith 
in  a  court  of  equity.  An  absolute 
deed  divests  the  grantor  not  only 
of  his  legal  title,  but  right  of  pos- 
session; and  when  such  grantor  is 
found  in  the  exclusive  possession 
of  the  granted  premises  long  after 
the  delivery  of  his  deed,  here  is  a 
fact  antagonistic  to  the  fact  and 
legal  effect  of  the  deed ;  and  we 
cannot  appreciate  the  justice  sound 
reason,  or  policy  of  a  rule  which 
would  authorize  a  subsequent  pur- 
chaser, while  such  fact  of  posses- 
sion continues,  to  give  controlling 
prominence  to  the  fact  and  legal 
effect  of  the  deed,  in  utter  disre- 
gard of  the  other  notorious,  prom- 
inent,   antagonistic    fact    of    exclu- 


sive possession  in  the  original 
grantor.  He  cannot  be  regarded 
a  purchaser  in  good  faith  who  neg- 
ligently or  wilfully  closes  his  eyes 
to  visible  pertinent  facts,  indicat- 
ing adverse  interest  in  or  encum- 
brances upon  the  estate  he  seeks  to 
acquire,  and  indulges  in  possibili- 
ties or  probabilities,  and  acts  upon 
doubtful  presumptions,  when  by  the 
exercise  of  prudent,  reasonable  dil- 
igence he  could  fully  inform  him- 
self of  the  real  facts  of  the  case." 
Sec,  also,  Smith  v.  Myers,  56  Neb. 
503,  76  N.  W.  1084;  Shiff  v.  An- 
dress,  147  Ala.  690,  40  So.  824;  Rea 
v.  Bluhm,  173  111.  277,  50  N.  E.  694 ; 
Georgia  etc.  Co.  v.  Faison,  114 
Ga.  655,  40  S.  E.  760;  Kahre  v. 
Rundle,  38  Neb.  315,  56  N.  W. 
888;  Jennings  v.  Salmon,  (Ky.) 
98  S.  W.  1026;  Bridger  v.  Ex- 
change Bank,  126  Ga.  821,  8  L.R.A. 
(N.S.)  4^3,  56  S.  E.  97,  115  Am. 
St.   Rep.   118. 

2  Webster  v.  Maddox,  6  Me.  (6 
Greenl.)  256;  Turman  v.  Bell,  54 
Ark.  273,  26  Am.  St.  Rep.  35. 
Creditors  of  the  grantee  are  bound 
as  effectually  by  notice  afforded  by 
possession  of  the  grantor  as  they 
are  by  possession  by  a  stranger  to 
the  title:  Groff  v.  State  Bank,  50 
Minn.  234,  36  Am.  St.  Rep.  640; 
citing  §§  761-765  of  text. 


CHAP.    XXIII.]         THE    DOCTRINE    OF    NOTICE.  1390 

to  the  depositary,  is  placed  upon  record  without  the  grantor's 
knowledge  or  consent,  he  remaining  in  possession  of  the  land, 
a  subsequent  purchaser  from  the  grantee  will  hold  subject 
to  the  equities  of  the  grantor.' 

§  763.  Opposite  view — Possession  not  notice  of  grant- 
or's rights. — On  the  other  hand,  by  many  authorities,  it 
is  held  that  while  possession  by  a  stranger  is  notice  of  any 
claim  he  may  have  to  the  property,  a  distinction  is  to  be  noted 
between  that  case  and  the  case  of  a  grantor  remaining  in 
possession  after  the  execution  of  a  deed.  In  a  case  in  New 
Jersey,  the  court  while  admitting  the  full  force  of  the  general 
rule  as  to  the  effect  of  notice  given  by  possession,  declares 
that  "this  rule  does  not  apply  to  a  vendor  remaining  in  pos- 
session, so  as  to  require  a  purchaser  from  his  grantee  to  in- 
quire whether  he  has  reserved  any  interest  in  the  land  con- 
veyed. So  far  as  the  purchaser  is  concerned,  the  vendor's  deed 
is  conclusive  upon  that  subject;  having  declared,  by  his  con- 
veyance, that  he  makes  no  reservation,  he  is  estopped  from 
setting  up  any  secret  arrangement  by  which  his  grant  is  im- 
paired. The  well-settled  rule  applies  to  this  case,  that  a  party 
is  estopped  from  impeaching  or  contradicting  his  own  deed, 
or  denying  that  he  granted  the  premises  which  his  deed  pur- 

'  Illinois    Central    R.    R.    Co.    v.  erty    without    consideration.      Sey- 

McCullough,  59  111.  166.     In  Grim-  mour    and    Welles    were    informed 

stone  V.  Carter,  3  Paige,  421,  439,  he    was    in    possession,    which,    by 

24   Am.    Dec.   230,    the    Chancellor  the   settled   law    of   the   land,    was 

says :     "This  is  undoubtedly  a  hard  sufficient   to  put    them   on    inquiry, 

case   for  the  purchasers   who   sup-  and  to  deprive  them  of  the  defense 

posed  they  were  getting  a  good  ti-  of    bona    fide    purchasers    without 

tie.      But    as   the    complainant    was  notice  of  his  rights.     And  they,  in 

not   aware    of    the    negotiation    for  the   language  of  Lord  Eldon,  hav- 

the  purchase  of  the  property,  and  ing   neglected   to   take  the  obvious 

therefore    had    no    opportunity    to  precaution    of    inquiring   as    to   the 

apprise  them  of  his  equitable  claim  nature    and    extent    of    a    tenant's 

to    a    reconveyance    of    the    north  interest  in  the  property,  must  suf- 

half  of  the  lot,  it  would  be  equally  fer   the   consequences   of  their   ne- 

hard  to   deprive   him  of   his  prop-  gleet." 

9 


1400 


THE    LAW    OF    DEEDS. 


[chap.  xxnL 


ports  to  convey."  *  In  a  case  in  Michigan,  Mr.  Justice  Chris- 
tiancy,  in  delivering  the  opinion  of  the  court,  after  adverting 
to  the  fact  that  open  and  peaceable  possession  is  notice  to  the 
world  of  the  claim  under  which  the  party  in  possession  holds, 
thus  continues:  "But  the  object  of  the  law  in  holding  such 
possession  constructive  notice,  where  it  has  been  so  held,  is 
to  protect  the  possessor  from  the  acts  of  others  who  do  not 
derive  their  title  from  him;  not  to  protect  him  against  his 
own  acts,  and  especially  against  his  own  deed.  If  a  party  exe- 
cutes and  dehvers  to  another  a  solemn  deed  of  conveyance  of 
the  land  itself,  and  suffers  that  deed  to  go  upon  record,  he 
says  to  all  the  world,  'whatever  right  I  have,  or  may  have 
claimed  to  have  in  this  land,  I  have  conveyed  to  my  grantee; 
and  though  I  am  yet  in  possession,  it  is  for  a  temporary  pur- 
pose, without  claim  of  right,  and  merely  as  a  tenant  at  suf- 
ferance to  my  grantee.'  This  is  the  natural  inference  to  be 
drawn  from  the  recorded  deed,  and  in  the  minds  of  all  men, 
would  be  calculated  to  dispense  with  the  necessity  of  further 
inquiry  upon  the  point.  All  presumption  of  right  or  claim  of 
right  is  rebutted  by  his  own  act  and  deed.  One  of  the  main 
objects  of  the  registry  law  would  be  defeated  by  any  other 
rule."  ^    It  was  said  by  the  Supreme  Court  of  Kansas  that  the 


*Van  Keuren  v.  Central  R.  R. 
Co.  of  New  Jersey,  38  N.  J.  L. 
(9  Vroom)  165,  167,  per  Van  Syc- 
kel,  J. 

5  Bloomer  v.  Henderson,  8  Mich. 
395,  405,  77  Am.  Dec.  453,  and  cases 
cited.  See,  also,  Woods  v.  Farmer, 
7  Watts,  382,  32  Am.  Dec.  772; 
Scott  V.  Gallagher,  14  Serg.  &  R. 
333,  16  Am.  Dec.  508;  Newhall 
V.  Pierce,  5  Pick.  450;  Rice  v. 
Rice,  2  Drew.  1 ;  White  v.  Wake- 
field, 7  Sim.  401;  Muir  v.  Jolly, 
26  Beav.  143 ;  Groton  Sav.  Bank 
V.  Beatty,  30  N.  J.  Eq.  133;  Quick 
V.   Milligan,   108  Ind.  419,   58  Am. 


Rep.  49;  Eylar  v.  Eylar,  60  Tex. 
319;  Hoffman  v.  Blume,  64  Tex. 
334;  Koon  v.  Trammel,  71  Iowa, 
132;  Abbott  v.  Gregory,  39  Mich. 
68;  Humphrey  v.  Hurd,  29  Mich. 
44;  May  v.  Sturdivant,  75  Iowa, 
116,  39  Mo.  Rep.  221,  9  Am.  St. 
Rep.  463 ;  Crassen  v.  Swoveland, 
22  Ind.  427;  Sprague  v.  White,  73 
Iowa,  670,  35  N.  W.  Rep.  751; 
Dodge  V.  Davis,  85  Iowa,  77,  52 
N.  W.  Rep.  2;  Tuttle  v.  Church- 
man, 74  Ind.  311;  Bell  v.  Twilight, 
18  N.  H.  159,  45  Am.  Dec.  367; 
Mateskey  v.  Feldman,  75  Wis.  103, 
43    N.   W.   Rep.    703:    Schwallback 


CHAP.    XXIII.]         THE    DOCTRINE    OF    NOTICE.  1401 

rule  sustained  by  the  great  weight  of  authority  Is  that  where 
the  grantor  remains  in  possession  he  will  not  be  permitted  to 
assert  secret  equities  in  his  favor  as  his  deed  is  a  declaration 
that  he  has  no  right  to  possession.  A  purchaser  from  the 
grantee  of  the  party  in  possession  is  not  obligated,  said  the 
court,  "to  inquire  whether  such  party  has  reserved  any  inter- 
est in  the  land  conveyed.  So  far  as  the  purchaser  is  con- 
cerned, the  actual  occupant's  deed  is  conclusive  upon  that  point. 
The  object  of  the  law  in  holding  possession  constructive  notice 
is  to  protect  the  possessor  from  the  acts  of  others  who  do  not 
derive  their  title  from  him,  not  to  protect  him  against  his  own 
acts,  nor  to  protect  him  against  his  own  deed.  Therefore, 
when  a  grantor  executes  and  delivers  a  deed  of  conveyance 
to  go  upon  record,  he  says  to  the  world :  'Though  I  am  yet  in 
the  possession  of  the  premises  conveyed,  it  is  for  a  temporary 
purpose,  without  claim  of  right,  and  merely  as  a  tenant  at 
sufferance  of  my  grantee.'  "  ^ 

§  764.     Comments. — It  is  perhaps  to  be  regretted  that 
courts  should  hold  parties  bound  by  any  other  notice  than  that 

V.  Milwaukee  etc.  Ry.  Co.,  69  Wis.  v.   Thuma,    68    Kan.   519,   75    Pac. 

292,  2  Am.   St.   Rep.  740;   Denton  486;  Red  River  etc.  Co.  v.  Smith, 

V.    White,   26    Wis.    769;    Hurt    v.  7  N.  D.  236,  74  N.  W.  194;  Smith 

Cooper,    63    Tex.    362;     Love    v.  v.  Phillips,  9  Old.  297,  60  Pac.  117; 

Breedlove,  75  Tex.   649,   13   S.   W.  Ramirez    v.    Smith,    (Tex.)    56    S. 

Rep.    222;    Hafter    v.    Strange,    65  W.   254;    Randall    v.    Luigwall,    43 

Miss.    323,    7    Am.    St.    Rep.    659;  Or.    383,    11    Pac.    1.      See,    also, 

Seymour    v.    McKinstrey,    106    N.  Harris  v.   Harris,   109  La.  914,  ZZ 

Y.   230;   Burt  v.   Baldwin,  8   Neb.  So.    918;    Eastham    v.    Hunter,    98 

487;  Van  Keuren  v.  Central  R.  R.  Tex.  560,  86  S.  W.  323. 

Co.,  38  N.  J.  L.  165.    And  see  New  ^  Hockman    v.    Thuma,    68    Kan. 

York    Life    Ins.    Co.    v.    Cutler,    3  519,  75  Pac.  486.     See,  also,  Koon 

Sand.    Ch.    176;    Cook    v.    Travis,  v.  Tramel,  71  Iowa,  132,  32  N.  W. 

20  N.  Y.  400;  Reed  v.  Gannon,  50  243;    Malette    v.    Wright,    120    Ga. 

N.    Y.    345 ;    Dawson    v.    Danbury  735,  48  S.  E.  229 ;  Exon  v.  Dancke, 

Bank,  15  Mich.  489;  Dodge  v.  Dav-  24  Or.  110,  32  Pac.  1045;  Watkins 

is,  85  la.  n,  52  N.  W.  2;   Crooks  v.    Sproul,   8   Tex.    Civ.    App.    427, 

v.  Jenkins,  124  la.  317,  100  N.  W.  28  S.  W.  356;   Eylar  v.  Eylar,  60 

82,  104  Am.  St.  Rep.  326;  Hockman  Tex.  315. 


14U2  TPIE    LAW    OF    DEEDS.  [ciIAP.    XXIIl. 

furnished  by  the  record.  Land  is  sold  in  many  instances  that 
the  party  purchasing  has  never  seen.  The  purchaser  rehes 
upon  the  records  for  the  purpose  of  ascertaining  his  vendor's 
title,  and  generally  considers  himself  safe  in  purchasing  when 
the  records  show  that  his  vendor's  title  is  indefeasible.  But 
it  may  happen  that  the  one  apparently  possessing  the  title 
has  no  title  whatever,  or  has  a  title  subject  to  liens  and  en- 
cumbrances not  disclosed  by  the  record,  but  manifested  by 
a  possession  sufficient  to  affect  subsequent^  purchasers  with 
notice.  Inasmuch  as  our  law  allows  possession  to  have  the 
effect  of  notice,  there  seems  to  us  no  good  reason  for  draw- 
ing a  distinction  between  cases  where  a  stranger  to  the  title 
has  possession,  and  where  the  grantor  remains  in  possession 
after  the  execution  of  his  deed,  under  some  title  or  claim  not 
shown  by  the  records.  The  possession  in  either  case  is  the 
same.  In  either  case,  it  is  a  fact  in  conflict  with  the  record 
title.  If  possession  by  a  stranger  is  sufficient  to  make  it  obli- 
gatory upon  purchasers  to  ascertain  his  rights,  a  possession 
by  the  grantor  himself,  after  the  execution  of  his  deed,  is  a 
circumstance  as  much  entitled  to  consideration,  and  as  apt  to 
cause  inquiry.  This  much  may  be  admitted.  But  it  is  said 
that  the  grantor  is  estopped  by  the  execution  of  his  deed.  We 
cannot  see  why  the  doctrine  of  estoppel  does  not  apply  with 
as  much  force  to  one  case  as  to  the  other.  A  stranger  who 
neglects  to  have  recorded  the  instrument  under  which  he  claims 
title  or  right  is  as  guilty  of  negligence  as  a  grantor  who  fails 
to  record  the  instrument  by  which  his  rights  are  conferred  or 
secured.  The  grantor  is  not  seeking  to  defeat  his  deed.  He,  of 
course,  is  estopped  from  assailing  his  own  deed.  But,  when 
he  remains  in  possession,  he  claims  some  right  dehors  his  deed. 
It  is  true  that,  in  many  instances,  that  right  could  have  been 
reserved  in  his  deed.  But  it  is  true  in  all  instances  that  his 
rights  either  could  have  been  conferred,  if  they  are  not,  by  a 
separate  instrument.  In  a  case  where  an  owner  of  land  con- 
veys it  by  deed  which  is  recorded,  and  takes  a  mortgage  as  se- 


CHAP.    XXIII.]         THE    DOCTRINE    OF    NOTICE.  1403 

curity  for  the  payment  of  the  purchase  money,  or  takes  an 
absolute  deed  intended  as  a  mortgage,  which,  by  the  agree- 
ment of  the  parties  or  the  grantor's  neglect,  is  not  recorded, 
and  it  is  agreed  that  the  grantor  is  to  remain  in  possession  un- 
til the  purchase  money  is  paid,  the  question  of  the  grantor's 
estoppel  by  his  deed,  it  seems  to  us,  is  not  involved.  The 
grantor  admits  the  execution  of  his  deed,  and  concedes  that  it 
is  as  operative  in  all  respects  as  it  purports  to  be.  But  he  has 
the  same  right  as  an3^one  else  to  acquire,  subsequently,  either  a 
legal  or  an  equitable  title  from  his  grantee.  If  he  does  so,  and 
does  not  put  the  instrument  giving  such  title  on  record,  he 
occupies  exactly  the  same  position,  as  a  purchaser  who  acquires 
a  title  by  deed  which  he  fails  to  record.  The  negligence  in  one 
case  is  as  great  as  in  the  other.  Neither  is  attempting  to  de- 
feat any  recorded  deed.  There  is  no  question  of  estoppel,  be- 
cause the  full  effect  of  the  recorded  conveyances  is  conceded. 
It  seems  to  us  that,  In  these  cases,  the  effect  of  a  possession 
by  a  stranger  and  by  a  grantor  ought  to  be  similar.  In  either 
case,  the  record  shows  that  the  title  Is  vested  in  one  other 
than  the  party  in  possession.  In  either  case,  the  possession  Is 
visible;  is  of  a  character  of  which  one  viewing  the  premises 
must  be  cognizant.  In  either  case,  the  possession  may  be  un- 
der permission  of  the  owner  as  he  appears  of  record,  without 
any  right  being  held  by  the  party  In  possession,  or,  In  either 
case,  the  party  In  possession  may  claim  under  an  adverse  title. 
If  possession  is  protection  to  one,  it  should  be  to  the  other. 
Whatever  can  be  said  as  to  the  danger  of  allowing  a  grantor, 
who  remains  In  possession  after  the  execution  of  his  deed,  to 
claim  a  title  In  conflict  with  the  record  title,  can  be  said  with 
equal  force  against  allowing  possession  by  anyone,  under  any 
circumstances,  to  affect  subsequent  purchasers  and  encum- 
brancers with  notice.'' 

■^  In    Groflf    V.     State    Bank,    50      for    the    views    expressed    by    the 
Minn.   234,   36   Am.    St.    Rep.   640,      court 
§§  761-765,  were  cited  as  authority 


1404  THE    LAW    OF    DEEDS.  [CHAP.    XXIII. 

§  765.  Absolute  deed  and  grantor's  possession  under 
unrecorded  defeasance. — It  is  held  in  accordance  with  the 
view  that  a  grantor's  possession  affords  notice  of  his  rights, 
that  where  a  person  conveys  land  by  a  deed  absolute  in  form, 
which  is  recorded,  taking  back  a  defeasance  which  is  not  re- 
corded, constituting  the  transaction  a  mortgage,  the  possession 
and  actual  occupation  of  the  land  by  the  mortgagor  are  no- 
tice of  his  title  to  a  purchaser  from  the  mortgagee.*  But  in 
Indiana,  it  is  held  on  the  other  hand  that  such  possession  is  not 
notice  of  an  unrecorded  defeasance,^  and  decisions  in  Massa- 
chusetts are  to  the  same  effect,^  As  already  stated,  we  are  of 
opinion  that  the  grantor  should  be  as  much  entitled  to  claim 
the  benefit  of  notice  arising  from  his  open  possession  as  any- 
one else.  It  has  been  held  in  New  York,  that  where  a  judg- 
ment debtor  continues  in  possession  of  the  land  which  has 
been  sold  under  execution  against  him,  his  possession,  it  may  be 
presumed,  is  under  the  title  of  the  purchaser.^  "It  is  quite 
true,  generally,"  said  Comstock,  J.,  "tliat  the  law  regards  the 
actual  occupancy  of  land  as  equivalent  to  notice  to  all  persons 
dealing  with  the  title,  of  the  claims  of  the  occupant.  But  this 
is  not  an  absolute  proposition  which  is  to  be  taken  as  true  in 
all  possible  relations.  The  circumstances  known  may  be  such 
that  the  occupancy  will  not  suggest  to  a  purchaser  an  inquiry 
into  the  title  or  claim  under  which  it  may  be  held ;  and  when 
the  inquiry  may  be  omitted  in  good  faith,  and  the  exercise  of 
ordinary  prudence,  no  one  is  bound  to  make  it.    Possession  out 

SDaubenspeck    v.    Piatt,    22    Cal.  ing  Co.  v.  Brophy  &  Dale  G.  &  S. 

330;  Pell  v.  McElroy,  36  Cal.  668;  Co.,    15    Nev.    101;    Parker   v.   Os- 

New  V.  Wheaton,  24  Minn.  406.  good,  3  Allen,  487 ;  Lamb  v.  Pierce, 

9  Crassen   v.    Swoveland,   22  Ind.  113  Mass.  Th;   Pomroy  v.   Stevens, 

427.  11    Met.    244;    Mara    v.    Pierce,    9 

1  Hennessy  v.  Andrews,  6  Cush.  Gray,    306 ;    Dooley    v.    Wolcott,    4 

170;    Newhall    v.    Pierce,    5    Pick.  Allen,   407;    Groton    Savings    Bank 

450;  Newhall  v.  Burt,  7  Pick.   156.  v.   Batty,  20  N.  J.   Eq.    (3  Stewt.) 

And  see  Kunkle  v.  Wolfersberger,  126. 

6  Watts,   126;    Corpman   v.   Bacca-  2  Cook  v.   Travis,  20  N.   Y.  400. 

stow,  84  Pa.  St.  363;  Brophy  Min- 


CHAP.    XXIII.]         THE    DOCTRINE    OF    NOTICE.  1405 

of  the  vendor  and  actually  in  another  person,  only  suggests 
an  inquiry  into  the  claim  of  the  latter.  Ordinarily,  that  inquiry 
should  be  made,  because  it  evinces  bad  faith  or  gross  neglect 
not  to  make  it.  But  the  .question  in  such  cases  is  one  of  ac- 
tual notice,  and  such  notice  will  be  imputed  to  a  purchaser  only 
where  it  is  a  reasonable  and  just  inference  from  the  visible 
facts.  He  cannot  wilfully  close  his  eyes  and  then  allege  good 
faith ;  nor  can  he  pause  in  the  examination  where  the  facts 
made  known  to  him  plainly  suggest  a  further  inquiry  to  be 
pursued.  The  adjudged  cases  which  have  been  the  most  care- 
fully considered  do  not  carry  the  doctrine  of  notice  as  implied 
or  inferred  from  circumstances  further  than  is  here  indi- 
cated." '  Possession  of  mortgaged  premises  is  notice  of  the 
equities  of  the  occupant  to  a  person  who  purchases  the  same  at 
a  trustee's  sale  under  a  power  of  sale.  Under  these  circum- 
stances, the  purchaser  at  the  trustee's  sale  will  acquire  a  title 
subject  to  any  equitable  rights  of  the  party  in  possession  to 
avoid  the  sale.*  Where  a  mortgagor  continues  in  possession 
after  a  foreclosure  sale,  it  is  held  in  Michigan  that  his  posses- 
sion is  not  constructive  notice  of  any  title  or  interest  subse- 
quently acquired  by  him  not  appearing  of  record.^  If  two  per- 
sons buy  a  tract  of  land,  each  being  equally  interested  and  each 
taking  his  part  of  the  land,  a  decree,  if  no  unfairness  in  the 
division  is  shown  may  be  entered  after  the  death  of  one  of 
the  parties  confirming  such  partition.® 

§  766.  Parol  evidence  to  show  grantor's  right  to  pos- 
session.— Notwithstanding  the  general  proposition  that  a 
reservation  of  an  interest  in  real  estate  can  be  made  only  by 
deed,  yet  in  an  action  for  use  and  occupation,  parol  evidence  is 
admissible  to  show  an  agreement  between  the  parties,  that  the 

'Cook  V.   Travis,  20  N.   Y.  402,  ^  Dawson    v.    Danbury    Bank,    15 

403.  Mich.  489. 

*Clevinger  v.  Ross,  109  111.  349.  6  irwin  v.   Dyke,    109   111.   528. 


1406  THE    LAW    OF    DEEDS.  [CHAP.    XXIIL 

grantor  might  continue  to  use  the  premises.'  The  effect  of 
such  evidence  is  not  to  contradict  the  deed,  but  to  explain  what 
was  the  actual  consideration,  and  parol  evidence  for  this  pur- 
pose is  admissible.' 

§  767.     Absolute  deed  with  mortgage  for  support. — 

A  husband  and  wife  who  had  been  for  several  years  in  the 
occupation  of  a  farm,  conveyed  it  to  their  son  and  took  back 
from  him  a  mortgage  conditioned  for  their  support.  They 
omitted,  however,  to  have  the  mortgage  recorded.  The  mort- 
gagees continued  in  the  possession  of  the  farm,  they  and  the 
son  forming  one  family,  and  all  aiding  in  and  contributing  to 
its  support  The  son,  some  years  after  the  execution  of  this 
mortgage,  executed  another  to  a  third  person.  The  latter  in- 
strument was  properly  recorded.  Under  these  circumstances, 
the  court  held  that  the  second  mortgagee  must  be  considered 
as  having  the  rights  of  the  first  mortgagees.'  Where  an  aged 
woman  executed  a  deed  to  her  daughter,  reciting  as  the  con- 
sideration "five  dollars  and  the  faithful  performance  of  a  cer- 
tain agreement,"  the  agreement  being  by  parol  that  the  daugh- 
ter should  support  the  mother  for  her  life,  and  the  daughter 
subsequently  married,  and  on  the  same  consideration  conveyed 
the  land  to  her  husband,  to  whom  the  mother  afterward  exe- 
cuted a  quitclaim  deed  for  the  purpose,  as  the  deed  expressed, 
of  correcting  a  misnomer,  and  the  husband  then  mortgaged 
the  land  to  a  person  who  had  knowledge  of  the  quitclaim  deed, 
it  was  held  that  the  mortgagee  was  affected  with  notice  of  the 
agreement,  which  might  have  been  ascertained  by  inquiry.^ 
But  it  is  said  that  possession  by  husband  and  wife  together 
will  impart  notice  of  her  equities  as  against  all  persons  not 

'  The  Aull  Savings  Bank  v.  AuU,  See    Harrison    v.    New   Jersey   etc. 

80  Mo.   199.  Transportation    Co.,    19    N.    J.    Eq. 

8  The  Aull  Savings  Bank  v.  Aull,  (4  Green,  C.  E.)  488. 

80   Mo.    199.  iDailey  v.  Kastell,  56  Wis.  444. 

8  Hoggs  V.  Anderson,  50  Me.  161. 


CHAP.    XXIII.]         THE    DOCTRINE    OF    NOTICE,  1407 

claiming  under  the  husband.^  The  presumption  arises  where 
there  is  a  joint  occupancy  of  land  by  husband  and  wife,  that 
the  possession  is  that  of  the  husband  and  he,  therefore,  is  a 
proper  person  of  whom  to  inquire  as  to  the  state  of  the  title.' 
Possession  of  real  property  by  husband  and  wife  together, 
however,  will,  it  is  said,  impart  notice  of  the  wife's  equity, 
against  all  persons  other  than  thoseSvho  claim  under  the  hus- 
band.* A  purchaser  is  not  put  upon  inquiry,  it  is  held,  to  as- 
certain the  rights  of  a  third  person,  from  whom  the  husband 
to  cover  his  own  fraud  took  a  lease  of  land  to  which  his  wife 
held  the  record  title,  when  the  existence  of  such  lease  is  un- 
known to  the  purchaser.^ 

§  769.  Character  of  possession. — The  possession  to 
have  the  effect  of  notice  must  be  of  that  character  that  the 
attention  of  a  purchaser  is  at  once  called  to  it.  It  must  be 
open,  distinct,  exclusive,  and  unequivocal.  If  the  land  is  used 
by  the  grantee  and  others  for  pasture,  and  there  are  no  build- 

*  Iowa  Loan  &  Trust  Co.  v.  King,  A  person  in  Utah  occupied  cer- 
58  Iowa,  598.                                              tain  premises  with  his  wife  and  A, 

3  Austin  V.  So.  etc.  Ass'n,  122  Ga.  a   polygamous  wife,  who  remained 

440,  50  S.  E.  382.  with  him  under  a  secret  agreement 

*  See  Walker  v.  Neil,  117  Ga.  733,  that  she  should  have  a  half  inter- 
45  S.  E.  387;  Kirby  v.  Talmadge,  est  in  the  property,  and  he  received 
160  U.  S.  379,  40  L.  ed.  463,  And  a  deed  for  the  land,  without  mak- 
see  Brunson  v.  Brooks,  68  Ala.  248.  ing  known  his  agreement  with  A. 
But  see  Neal  v.  Parkerson,  61  Ga.  Subsequently  third  parties  acquired 
345  (distinguished  in  Walker  v.  his  interest,  paying  a  valuable  con- 
Neil  supra)  ;  Garrad  v.  Hull,  92  sideration  and  having  no  notice  of 
Ga.  787,  20  S.  E.  357.  See  in  this  A's  equities.  As  against  these  par- 
connection  :  Reagle  v.  Reagle,  179  ties  it  was  held  that  A  had  no 
Pa.  89,  36  Atl.  191.  Where  hus-  claim.  The  occupation  of  the 
band  and  wife  have  separated,  the  premises  by  her  in  the  manner 
wife's  possession  of  land  is  suffi-  stated  gave  no  constructive  notice 
cient  to  put  a  purchaser  from  the  of  her  rights:  Townsend  v.  Little, 
husband  upon  inquiry  as  to  her  MJ  U.  S.  504,  27  L.  ed.  1012. 
rights :  Allen  v.  Moore,  30  Colo.  ^  Fassett  v.  Smith,  23  N.  Y.  252. 
307,  70  Pac.  682.     See,  also,  Fall  v. 

Fall,  75  Neb.   104,   106  N.  W.  412. 


1408 


THE    LAW    OF    DEEDS. 


[chap.    XXIII. 


ings  upon  it,  such  possession  is  not  of  that  visible,  notorious, 
and  exclusive  character  as  amounts  to  constructive  notice  of 
ownership.^  If  wood  is  occasionally  cut  under  circumstances 
which  might  be  regarded  as  so  many  trespasses  with  as  much 
probability  as  acts  of  ownership,  such  fact  does  not  make  the 
possession  notice.'  "The  character  of  the  possession  which  is 
sufficient  to  put  a  persoii  upon  inquiry,  and  which  will  be 
equivalent  to  actual  notice  of  rights  or  equities  in  persons  other 
than  those  who  have  a  title  upon  record,  is  very  well  estab- 
lished by  an  unbroken  current  of  authority.  The  possession 
and  occupation  must  be  actual,  open,  and  visible;  it  must  not 
be  equivocal,  occasional,  or  for  a  special  or  temporary  purpose ; 
neither  must  it  be  consistent  with  the  title  of  the  apparent  own- 
er by  the  record."  *    It  must  be  such  as  to  be  inconsistent  with 


6  Coleman  v.  Barklew,  3  Dutch. 
357,  and  cases  cited ;  Taylor  v.  Cen- 
tral Pac.  R.  R.  Co.,  8  West  C.  Rep. 
22,  67  Cal.  615. 

7  Holmes  v.  Stout,  2  Stockt.  Ch. 
(10  N.  J.)  419. 

8  Brown  v.  Volkening,  64  N.  Y. 
76,  82,  per  Allen,  J.;  Elliott  v. 
Lane,  82  Iowa,  484,  31  Am.  St.  Rep. 
504;  Thomas  v.  Kennedy,  24  Iowa, 
397,  95  Am.  Dec.  740;  Iowa  Loan 
and  Trust  Co.  v.  King,  58  Iowa, 
598;  Lindley  v.  Martindale,  78 
Iowa,  380;  Kendall  v.  Lawrence,  22 
Pick.  540;  McMechan  v.  Griffing,  3 
Pick.  149,  15  Am.  Dec.  198;  Web- 
ster V.  Van  Steenbergh,  46  Barb. 
211;  Pope  V.  Allen,  90  N.  Y.  298; 
Tuttle  V.  Jackson,  6  Wend.  213, 
21  Am.  Dec.  306;  Page  v.  Waring, 
ie  N.  Y.  463;  Ely  v.  Wilcox,  20 
Wis.  523,  91  Am.  Dec.  436;  Betts  v. 
Letcher,  1  S.  D.  182,  46  N.  W.  Rep. 
193;  Beaubrien  v.  Henderson,  38 
Kan.  471,  16  Pac.  Rep.  796;  Tre- 
zise  V.  Lacy,  22  Kan.  472;  Simmons 
Creek  Coal  Co.  v.  Doran,  142  U.  S. 


417,  35  L.  ed.  1063;  Noyes  v.  Hall, 
97  U.  S.  34,  24  L.  ed.  909;  Town- 
send  V.  Little,  109  U.  S.  504,  27  L. 
ed.  1012;  Gum  v.  Equitable  Trust 
Co.,  1  McCrary,  51;  McLean  v. 
Clapp,  141  U.  S.  429,  35  L.  ed.  804 ; 
Webber  v.  Taylor,  2  Jones  Eq.  9; 
Tankard  v.  Tankard,  79  N.  C  54; 
Dutton  V.  Warschauer,  21  Cal.  609, 
82  Am.  Dec.  765;  Fair  v.  Stevenot, 
29  Cal.  486;  Smith  v.  Yule,  31  Cal. 
180,  89  Am.  Dec.  167;  Blankenship 
V.  Douglas,  26  Tex.  225,  82  Am. 
Dec.  608;  Satterwhite  v.  Rosser,  61 
Tex.  166;  Bernstein  v.  Humes,  71 
Ala.  260;  Truesdale  v.  Ford,  37  III. 
210;  Bogue  v.  Williams,  48  111.  371; 
Smith  V.  Jackson,  l(i  111.  254;  Part- 
ridge V.  Chapman,  81  111.  137;  Mor- 
rison V.  Kelly,  22  III.  610,  74  Am. 
Dec.  169;  Rock  Island  &  P.  Ry.  Co. 
V.  Dimick,  144  III.  628,  19  L.R.A. 
105,  32  N.  E.  Rep.  291;  Davis  v. 
Hopkins,  15  III.  519;  Mason  v, 
Mullahy,  145  111.  383,  34  N.  E.  Rep. 
36;  Western  Min.  Co.  v.  Peytona 
Coal  Co.,  8  W.  Va.  406;  Core  v. 


CHAP.    XXIII.]         THE    DOCTRINE    OF    NOTICE. 


1409 


the  title  upon  which  the  subsequent  purchaser  or  incumbrancer 
relies.^  An  owner  of  the  equitable  title  to  sixty  acres  of  land, 
of  which  three-quarters  of  an  acre  had  been  cleared  and 
fenced,  placed  a  person  upon  the  tract  who  resided  on  an  ad- 
joining tract.  The  land  was  situated  in  a  densely  timbered  and 
thinly  inhabited  country.  The  person  left  in  charge  of  the 
land  chopped  wood  upon  and  cultivated  the  part  which  had 
been  cleared.  Among  the  neighbors  ths  general  understand- 
ing was  that  the  land  belonged  to  the  person  having  the  equi- 
table title  to  it.  It  was  held  by  a  majority  of  the  court  that 
one  who  took  a  mortgage  from  the  holder  of  the  legal  title, 
took  by  reason  of  this  possession  with  notice  of  the  rights  of 


Faupel,  24  W.  Va.  238;  Martin  v. 
Jackson,  27  Pa.  St.  504,  67  Am. 
Dec.  489;  Boyce  v.  McCulloch,  3 
W.  Si  S.  429,  39  Am.  Dec.  35;  Mee- 
han  V.  Williams,  48  Pa.  St.  238; 
Jeffersonville  M.  &  T.  R.  Co.  v. 
Oyler,  82  Ind.  394;  Hawes  v.  Wis- 
well,  8  Me.  94;  Butler  v.  Stevens, 
26  Me.  484;  Bell  v.  Twilight,  22  N. 
H.  500;  Patten  v.  Moore,  32  N.  H. 
382;  Ellis  v.  Young,  31  S.  C.  322, 
9  S.  E.  Rep.  955;  Williams  v. 
Sprigg,  6  Ohio  St.  585;  Ranney  v. 
Hardy,  43  Ohio  St.  157,  1  N.  E. 
Rep.  523;  Brophy  Min.  Co.  v.  Bro- 
phy  and  Dale  G.  &  S.  Min  Co.,  15 
Nev.  101;  McKee  v.  Wilcox,  11 
Mich.  358,  83  Am.  Dec.  743;  Smith 
V.  Greenop,  60  Mich.  61,  26  N.  W. 
Rep.  832.  See,  also,  Holland  v. 
Brown,  140  N.  Y.  344,  34  N.  E. 
577 ;  Wells  v.  American  etc.  Co.,  109 
Ala.  430,  20  So.  136;  Munn  v. 
Achey,  110  Ala.  628,  18  So.  299; 
Scotch  etc.  Co.  v.  Sage,  132  Ala. 
598,  32  So.  607,  90  Am.  St.  Rep. 
932;  Rankin  etc.  Co.  v.  Bishop, 
137  Ala.  271,  34  So.  991 ;  'O'Neal  v. 
Prestwood  153  Ala.  443,  45  So.  25; 
Deeds,  Vol.  II.— S9 


Schumacher  v.  Truman,  134  Cal. 
430,  66  Pac.  591 ;  Mason  v.  Mullahy, 
145  111.  383,  34  N  E.  36;  Robertson 
V.  Wheeler,  162  111.  566,  44  N.  E. 
870;  Gray  v.  Lamb,  207  111.  258,  69 
N.  E.  794;  Lindley  v.  Martindale, 
78  la.  379,  43  N.  W.  233 ;  Patterson 
V.  Mills,  121  N.  C.  258,  28  S.  E.  368; 
Ramirez  v.  Smith,  (Tex.)  56  S.  W. 
254. 

9  Pope  V.  Allen,  90  N.  Y.  298; 
Holland  v.  Brown,  140  N.  Y.  344, 
35  N.  E.  577;  Munn  v.  Achey,  110 
Ala.  628,  18  So.  299;  Ramirez  v. 
Smith,  (Tex.)  56  S.  W.  254;  Mar- 
tin V.  Thomas,  56  W.  Va.  220,  49 
S.  E.  118.  To  operate  as  notice 
the  possession  must  be  actual,  vis- 
ible, open  and  notorious :  Norton 
V.  Metropolitan  L.  Ins.  Co.,  74  Minn. 
484,  77  N.  W.  298;  Ellis  v.  Young, 
31  S.  C.  322,  9  S.  E.  955;  Hellman 
v.  Levy,  55  Cal.  117.  A  claim  of 
title  to  an  entire  tract  may  be 
shown  by  a  possession  of  a  part : 
Waters  v.  Connelly,  59  Iowa,  217, 
13  N.  W.  82.  See,  also,  Millard  v. 
Wegner,  68  Neb.  574,  94  N.  W.  802. 


1410 


THE    LAW    OF    DEEDS. 


[chap.    XXIII. 


the  equitable  owiier.^  Ordinarily  it  is  said  that  there  must  be 
such  a  visible  change  of  possession  as  to  indicate  that  there 
has  been  a  sale.^  But  it  has  been  held  however,  that  a  change 
in  possession  is  not  necessarily  absolutely  essential  to  put  a 


1  Wickes  V.  Lake,  25  Wis.  71.  A 
very  able  dissenting  opinion  was 
filed  by  Dixon,  C.  J.  In  the  opin- 
ion of  the  court,  delivered  by  Cole, 
J.,  it  was  said :  "For  what  more 
notorious,  open,  visible,  and  unam- 
biguous acts  of  possession  and  own- 
ership can  be  manifested  over  real 
estate,  than  by  chopping,  clearing 
up,  fencing,  and  actually  cultivating 
between  two  and  three  acres  of 
heavily  timbered  land?  True,  the 
number  of  acres  is  not  large,  yet 
it  will  cost  as  much  time,  labor, 
and  money  to  chop  and  clear  up 
three  acres  of  heavily  timbered 
land,  and  make  it  fit  for  cultivation, 
as  it  will  to  make  large  improve- 
ments on  the  prairie.  The  posses- 
sion and  cultivation  of  a  large  in- 
closed field  on  the  prairie,  by  rais- 
ing wheat  upon  it,  would  not  natur- 
ally be  more  observed  by  the  pub- 
lic, or  create  a  stronger  presumption 
of  notice,  than  such  an  improvement 
in  the  woods.  And  it  is  very  plain 
that  such  unambiguous  acts  of  own- 
ership over  land  will  never  be  con- 
founded with  mere  acts  of  trespass. 
They  are  not  liable  to  any  such  mis- 
construction. Considering  the  con- 
dition of  the  country,  that  it  was 
sparsely  settled  and  but  a  little 
cleared  up,  the  clearing,  fencing,  and 
cultivating  one,  two,  or  three  acres 
are  such  decided  acts  of  ownership 
as  will  not  fail  to  attract  the  notice 
of  the  public,  as  it  seems  they  did 
in  this  case,  and  are  of  such  a  char- 


acter as  to  be  notice  to  a  purchaser. 
Such  improvements  under  the  cir- 
cumstances, are  open,  visible,  notori- 
ous, and  unambiguous,  and  are  as 
striking  evidence  of  the  continued 
and  complete  possession  of  the  land 
by  the  party  who  makes  them,  as 
can  well  be  imagined.  For  we  do 
not  understand  the  rule  to  be,  that 
a  person  must  actually  reside  upon 
the  land  to  make  his  possession  no- 
tice. He  may  actually  improve  and 
cultivate  it,  and  perform  decided 
acts  of  ownership  over  it,  without 
residing  upon  it.  He  may  cultivate 
and  improve  it  by  a  tenant;  for  the 
possession  of  the  tenant  is  his  pos- 
session. But  here  there  were  ac- 
tual, visible,  and  substantial  im- 
provements made,  which  would  cost 
considerable  labor  and  money  to 
make  them ;  land  was  cleared  up, 
fenced,  and  cultivated,  and  the 
occupation  and  possession  were  as 
notorious  and  exclusive  as  could 
have  existed,  unless  Lake  and  Pal- 
mer had  actually  resided  upon  their 
several  tracts."  See,  also,  Krider 
v.  Lafferty,  1  Whart.  303,  where 
planting  ground  with  willows  to  ob- 
tain materials  to  carry  on  the  trade 
of  basket  making  was  held  suffi- 
cient possession.  And  see,  also, 
Banner  v.  Ward,  12  Fed.  Rep.  820. 
2  Stockton  V.  Nat'l  Bank,  45  Fla. 
590,  34  So.  897;  Rankin  Mfg.  Co. 
V.  Bishop,  137  Ala.  271,  34  So.  991 ; 
Griffin  v.  Hall,  111  Ala.  601,  20  So. 
685;  115  Ala.  647,  22  So.  156 


CHAP.    XXIII.]         THE    DOCTRINE    OF    NOTICE. 


1411 


person  on  inquiry  as  to  the  rights  of  a  former  purchaser.' 
While  there  may  be  some  difference  of  opinion  upon  the  ques- 
tion of  fact  as  to  whether  possession  in  any  given  case  has 
been  open,  visible,,  notorious,  and  exclusive,  yet  that  a  pos- 
session of  this  kind,  as  a  matter  of  law,  is  required,  cannot 
be  questioned.* 


3  Janvrin  v.  Jaiivrin,  60  N.  H. 
169.  And  see  in  this  connection : 
Carr  v.  Brennan,  166  111.  108,  47  N. 
E.  721,  57  Am.  St.  Rep.  119;  Scheu- 
er  V.  Kelly,  121  Ala.  323,  26  So.  4. 

4  Pope  V.  Allen,  90  N.  Y.  298 
Webber  v.  Taylor,  2  Jones  Eq.  9 
Williams  v.  Sprigg,  6  Ohio  St.  585 
Butler  V.  Stevens,  26  Me.  484 
Tankard  v.  Tankard,  79  N.  C.  54 
Patten  v.  Moore,  32  N.  H.  382 
Ely  V.  Wilcox,  20  Wis.  523,  91  Am 
Dec.  436;  Cabeen  v.  Breckenridge; 
48  111.  91 ;  Holmes  v.  Powell,  8  De 
Gex,  M.  &  G.  572 ;  Jefferson  etc!  R. 
R.  Co.  V.  Oyler,  82  Ind.  394;  Gum 
V.  Equitable  Trust  Co.,  1  McCrary, 
51 ;  Trezise  v.  Lacy,  22  Kan.  742 ; 
Truesdale  v.  Ford,  2>1  111.  210; 
Noyes  v.  Hall,  7  Otto,  34,  24  L.  ed. 
909;  Taylor  v.  Kelly,  3  Jones  Eq. 
240;  Dunlap  v.  Wilson,  32  111.  517; 
Bradley  v.  Snyder,  14  111.  263,  58 
Am.  Dec.  564;  Bogue  v.  Williams, 
48  111.  371 ;  Troy  City  Bank  v.  Wil- 
cox, 24  Wis.  671 ;  Martin  v.  Jack- 
son, 3  Casey,  504.  67  Am.  Dec.  489 ; 
Bell  V.  Twilight,  22  N.  H.  500; 
Wright  V.  Wood,  11  Harris,  120; 
Meehan  v.  Williams,  12  Wright, 
238;  Webster  v.  Van  Steenbergh, 
46  Barb.  211;  Brophy  Mining  Co. 
V.  Brophy,  G.  &  S.  M.  Co.  15  Nev. 
101 ;  Tuttle  v.  Jackson,  6  Wend. 
213,  21  Am.  Dec.  306.  See,  also, 
Evans  v.  Templeton,  69  Tex.  375, 
5   Am.    St.   Rep.   71 ;   Worcester   v. 


Lord,  56  Me.  265,  96  Am.  Dec.  456 ; 
Schwallback  v.  Chicago  etc.  Ry. 
Co.,  69  Wis.  292,  2  Am.  St.  Rep. 
740;  White  v.  White,  105  111.  313; 
Pope  V.  Allen,  90  N.  Y.  298;  Beau- 
brien  v.  Henderson,  38  Kan.  471 ; 
Parker  v.  Baines,  65  Tex.  605. 
Possession  must  be  unambiguous : 
Atlanta  etc.  Ass'n  v.  Gilmer,  128 
Fed.  293 ;  Wells  v.  American  etc. 
Co.,  109  Ala.  430,  20  So.  136 ;  Scotch 
Lumber  Co.  v.  Sage,  132  Ala.  598, 
32  So.  607,  90  Am.  St.  Rep.  932; 
Rankin  etc.  Co.  v.  Bishop,  137  Ala. 
271,  34  So.  991;  Robertson  v. 
Wheeler,  162  111.  566,  44  N.  E.  870; 
Gray  v.  Lamb,  207  111.  258,  69  N. 
E.  794;  Lindley  v.  Martindale,  78 
la.  379,  43  N.  W.  233;  Derrett  v. 
Britton,  32  Tex.  Civ.  App.  485,  80 
S.  W.  562;  Mack  v.  Mcintosh,  181 
III  633,  54  N.  E.  1019;  Taggart  v. 
Warner,  83  Wis.  1,  53  N.  W.  ZZ\ 
Roussain  v.  Norton,  53  Minn.  560, 
55  N.  W.  747;  Clark  v.  Greene,  73 
Minn.  467,  76  N.  W.  263;  Jobbing 
V.  Tuttle,  75  Kan.  351,  9  L.R.A. 
(N.S.)  960,  89  Pac.  699.  As  to 
particular  acts  sufficient  to  effect 
notice :  see  Kimmell  v.  Scott,  34 
Neb.  493,  52  N.  W.  371;  Pride  v. 
Whitfield  (Tex.)  51  S.  W.  1100; 
Truth  Lodge  v.  Barton,  119  la. 
230,  93  N.  W.  106,  97  Am.  St.  Rep. 
303 ;  Chapman  v.  Chapman,  91  Va. 
397,  21  S.  E.  813,  50  Am.  St.  Rep. 
846;   Pecry  v.  Elliott,  101  Va.  709, 


1412  THE    LAW    OF    DEEDS.  [CHAP.    XXIU. 

§  770.  Possession  under  one  kind  of  right  as  notice 
of  other  rights. — It  is  declared  by  one  class  of  cases  that 
where  possession  of  land  is  acquired  under  one  kind  of  right, 
such  possession  is  not  notice  of  another  interest  which  the 
occupant  has  acquired  subsequently,  in  the  absence  of  peculiar 
circumstances  of  sufficient  consequence  to  attract  attention  to 
the  change  of  the  former  title  or  interest.^  In  one  of  these 
cases,  although  the  decision  was  based  on  another  point,  Mr. 
Justice  Wilde  said:  "I  admit  that  generally  the  open  and 
notorious  possession  of  the  first  purchaser  under  his  deed  would 
be  sufficient  to  raise  a  legal  presumption  of  notice.  But  sup- 
pose that  a  lessor  should  grant  the  fee  of  the  land  to  the  les- 
see, he  being  in  possession  under  the  lease,  and  the  next  day 
should  make  a  second  grant  to  a  third  person  who  well  knew 
that  the  lessee  the  day  before  was  in  possession  under  the 
lease,  how  does  his  continued  possession  furnish  evidence  of 
notice  of  his  purchase?  To  imply  notice  in  such  case  is  to 
presume  a  fact,  without  proof  and  against  probability."  * 
Where  an  owner  of  a  vacant,  unimproved  town  lot,  uses  in 
common  with  his  tenants  of  adjoining  premises,  such  lot  as  a 
yard  in  which  to  hang  out  and  dry  clothes,  such  use  and 
possession  will  not  prevail  as  constructive  notice  against  an 
interest  acquired  by  a  purchaser  or  mortgagee  in  good  faith 
without  .actual  notice.'    But  the  proper  rule  seems  to  be  that 

44  S.  E.  919;  Miner  v.  Wilson,  107  Neal,  23  Tex.  Civ.  App.  427,  56  S. 

Mich.  57,  64  N.  W.  874;  Rogers  v.  W.  91. 

Turpin,  105  la.  183,  74  N.  W.  925 ;  6  Williams  v.  Sprigg,  6  Ohio  St. 

Adams  v.  Betz,  167  Ind.  161,  78  N.  585;  McMechan  v.  Griffing,  3  Pick. 

E.  649;  Bolland  v.  O'Neal,  81  Minn.  149,  154,  15  Am.  Dec.  198;  Lincoln 

15,  83  N.  W.  471,  83  Am.  St.  Rep.  v.  Thompson,  75  Mo.  613;  Bush  v. 

362;  Valentine  v.  R.  Co.,  187  N.  Y.  Golden,   17  Conn.   594;    Kendall   v. 

121,  79  N.  E.  849;  Ex  parte  Alex-  Lawrence,  22  Pick.  540.     See  Mat- 

ander,  122  N.  C.  121,  30  S.  E.  336.  thews  v.  Demerritt,  22  Me.  312. 

As  to  particular  acts  insufficient  to  ^  In     McMechan     v.     Griffing,     3 

effect  notice   see  Kendrick  v.   Col-  Pick.  149,  155,  15  Am.  Dec.  198. 

yar,  143  Ala.  597,  42  So.  110;  Rob-  'Williams  v.   Sprigg,  6  Ohio  St 

ertson  v.  Wheeler,  162  111.  566,  44  585.     In    delivering  the  opinion  of 

N.    E.    870;    Phoenix    Ins.    Co.    v.  the  Court,  Bowen,  J.,  said  (p.  594)  : 


CHAP.    XXIII.]        THE    DOCTRINE    OF    NOTICE. 


1413 


possession  should  be  held  to  be  notice  of  all  the  rights  of  the 
party  in  possession,  where  that  possession  is  open,  visible,  ex- 
clusive, distinct,  and  unequivocal.' 


"The  complainant  owned  the  hotel 
which  occupied  the  front  of  two 
lots.  Lot  No.  311  adjoined  them. 
It  was  vacant,  and  had  during  the 
construction  of  the  hotel  become  a 
sort  of  lumberyard,  on  which  build- 
ing and  other  materials  had  accu- 
mulated. In  the  spring  of  1837, 
the  complainant  buys  the  lot  in  or- 
der to  enhance  the  comfort  and  con- 
venience of  his  hotel.  He  removes 
some  of  the  lumber  and  rubbish 
therefrom,  but  does  nothing  more. 
He  does  not  build  upon  it;  he  does 
not  fence  it;  but  his  tenant  of  the 
other  lots  and  hotel  hangs  out 
clothes  there  to  dry  after  being 
washed.  This  is  the  extent  to  the 
possession  held  and  exercised  by 
complainant  during  the  season  of 
1837.  No  lease  was  made  to  Segur, 
the  tenant  of  the  hotel,  for  it,  no 
rent  paid  for  it,  no  acts  of  owner- 
ship by  him  exercised  over  it. 
Complainant  was  seen  once,  as  wit- 
ness thinks,  removing  some  of  the 
materials  from  it.  Should  such 
acts  of  possession  and  control  be 
held  to  give  notice  to  purchasers 
of  equities  and  equitable  titles  not 
otherwise  communicated  or  made 
known  to  them  ?  We  think  the  rule 
has  never  been,  and  should  never 
be  carried  so  far.  There  must  be 
something  in  the  acts  which  accom- 
pany possession  of  property,  in  or- 
der to  give  constructive  notice, 
which  can  be  seen  and  understood, 
something  that  will  induce  inquiry, 
that  wJH  naturally  raise  the  ques- 
tion   as    to    who    may    have    rights 


there.  Living  on  the  premises, 
raising  crops  on  them,  the  employ- 
ment of  persons  there  in  the  mak- 
ing of  improvements,  accompanied 
by  frequent  acts  and  expressions  of 
ownership,  would  produce  such  no- 
toriety, undoubtedly,  as  should  put 
purchasers  upon  their  guard,  and 
induce  investigation  to  acquire 
knowledge  sufficient  to  enable  them 
to  deal  safely.  This  may  not  be  the 
only  means  of  conveying  notice  to 
strangers,  and  without  intending  to 
define  exactly  what,  in  all  cases, 
will  constitute  constructive  notice, 
we  feel  no  hesitation  in  saying  that 
the  stretching  of  a  clothesline  over 
a  vacant,  adjoining  town  lot,  by  the 
tenant  of  other  premises,  on  which 
to  hang  clothes  to  dry,  or  a  casual 
act  of  removing  stone,  brick,  or 
lumber  therefrom,  belonging  to  an 
owner  who  had  placed  them  there 
while  constructing  a  house  on  the 
next  lot,  would  not  charge  a  bona 
fide  purchaser  or  mortgagee  with 
notice  of  equities  in  the  landlord  of 
such  tenant,  or  the  owner  who  re- 
moved such  materials.  Something 
more  is  required." 

8  See  Rogers  v.  Jones,  8  N.  H. 
264;  Kerr  v.  Day,  14  Pa.  St.  112,  53 
Am.  Dec.  526;  McKechnie  v.  Hos- 
kins,  23  Me.  230;  Woods  v.  Far- 
mere,  7  Watts,  382,  32  Am.  Dec. 
772;  Bailey  v.  Richardson,  9  Hare, 
734;  Allen  v.  Anthony,  1  Mer.  282; 
Powell  V.  Dillon,  2  Ball.  &  B.  416; 
Barnhart  v.  Greenshields,  9  Moore 
C.  P.  33;  Hanbury  v.  Litchfield,  2 
Mylne  &  K.  629;  Taylor  v.  Stibbert, 


1414  THE    LAW    OF    DEEDS.  [CHAP.    XXIIL 

§  771.  Sign  of  real  estate  agent. — Where  the  agent  of 
a  party  claiming  title  to  real  estate  put  upon  the  premises  a 
board  on  which  was  printed  a  notice  that  the  land  was  for 
sale  by  the  agent,  and  giving  the  agent's  address,  it  was  held 
that  this  was  sufficient  notice  of  the  owner's  rights  as  upon 
inquiry  of  the  agent,  any  one  could  ascertain  the  extent  and 
character  of  title.^  Constructive  notice  is  generally  given  of 
the  occupant's  rights,  where  he  occupies  or  possesses  a  house.^ 
If  the  owner  of  a  tenement  house  occupies  rooms  in  it  and  col- 
lects the  rents  his  possession  will  give  constructive  notice  of 
his  rights  on  the  property.^ 

§  772.  Possession  by  church. — A  possession  of  a 
church  or  a  meetinghouse  by  its  officers  for  the  ordinary  pur- 
poses of  worship  is  a  sufficient  possession  to  put  a  purchaser 
upon  inquiry.  A  possession  of  this  character  is  just  as  ef 
fectual  for  giving  notice  as  if  a  dwelling-house  had  been 
erected  upon  the  land,  and  it  was  actually  inhabited.^  So  the 
possession  of  rooms  by  a  lodge  under  a  lease  is  sufficient  to 
charge  a  purchaser  with  notice,  nor  is  he  relieved  from  the 
duty  of  inquiry  by  the  fact  that  the  doors  of  the  rooms  were 
locked  when  he  looked  at  the  house  and  he  was  not  aware  of 
their  occupation.*    If  a  school  district  erects  a  school  house  on 

2  Ves.   437;   Daniels   v.   Davidson,  as  placed  there  by  Lushbaugh,  and 

16  Ves.  249;  Crofton  v.  Ormsby,  2  as  if  it  had  referred  persons  desir- 

Schoales    &    L.    583;    jMoreland    v.  ing  to  purchase  to  himself." 

Richardson,   24   Beav.    33;    Wilbra-  i  Phelan  v.  Brady,  119  N.  Y.  587, 

ham  V.  Livesey,  18  Beav.  206;  Lew-  8  L.R.A.  211,  23  N.  E.  1109;  Best  v. 

is  V.   Bond,   18  Beav.  85 ;  Jones  v.  Stoneback,  39  Kan.  170,  17  Pac.  821. 

Smith,  1  Hare,  43.     See,  also,  Mur-  2  Phelan  v.  Brady,  119  N.  Y.  587, 

phy  v.  Green,  120  Ala.  112,  22  So.  8  L.R.A.  211,  23  N.  E.  1109.    As  to 

112,  29  So.  149.  the  possession  of  rooms  in  a  build- 

9  Hatch   v.    Bigelow,   39   111.   546.  ing:  see  Devrett  v.  Britton,  35  Tex. 

On  this  point  the  court  said :    "The  Civ.  App.  485,  80  S.  W.  562. 

board  erected  was  placed  on  the  lot  '  Randolph  v.  ]\Ieeks,  ]\Lnrt.  &  Y. 

by  Kerfoot,  as  the  agent  of  Lush-  58;  Macon  v.  Sheppard,  2  Humph, 

baugh,  after  the  purchase  by  the  lat-  335. 

ten    It  is,  therefore,  to  be  regarded  *  Scheerer  v.  Cuddy,  85  Cal.  270. 


(JHAP,    XXIII. i        THE    DOCTRINE    OF    NOTICE.  1415 

a  lot  conveyed  to  it  and  uses  the  building  for  school  purposes 
a  subsequent  mortgagee  of  the  grantor,  although  the  deed  to 
the  school  district  is  not  recorded,  is  required  to  inquire  as 
to  the  rights  of  the  district.^ 

§  773.  Possession  distinct. — The  possession  must  be 
distinct  and  unequivocal.  Where  the  grantee  bought  by  parol 
a  corner  of  the  grantor's  tract,  went  into  possession  and  erect- 
ed buildings,  but  did  not  reduce  the  part  purchased  by  him 
by  survey  or  other  means  to  certainty,  and  on  the  part  of  the 
tract  retained  by  the  grantor  a  forge,  dwelling  house,  grist 
and  saw  mill,  and  buildings  for  the  workmen  were  situated, 
so  that  the  buildings  of  the  grantee,  with  those  of  the  grant- 
or, might  appear  to  an  observer  as  one  establishment,  it  was 
held  that  the  grantee's  possession  was  not  sufficient  to  charge 
persons  with  notice.^  "At  best,"  said  Yeates,  J.,  "the  posses- 
sion of  the  defendant  was  of  a  mixed  nature.  His  pretensions 
were  not  defined  by  marked  boundaries  or  an  actual  survey. 
If  one  inclining  to  purchase  had  previously  viewed  the  prem- 
ises, he  would  have  seen  nothing  but  what  usually  occurs 
where  forges,  grist,  and  saw  mills  are  carried  on,  outhouses 
and  cabins  for  the  accommodation  of  colliers  and  other  work- 
men. Without  such  conveniences,  those  manufactories  could 
not  be  carried  on.  The  defendant's  holding  under  such  circum- 
stances could  not  convey  the  same  information,  nor  put  a  pur- 
chaser upon  inquiry  in  the  same  manner,  as  an  exclusive,  un- 
mixed possession  in  common  cases  might  reasonably  seem  to 
give."  ''  A  third  person  is  not  chargeable  with  constructive 
notice  of  an  unrecorded  deed,  where  the  grantor  and  grantee 
were  in  joint  possession  of  the  land  at  the  time  of  the  exe- 
cution of  the  deed,  and  there  was  no  change  in  possession  after- 

6  School    District    v.    Taylor,    19  6  Am.  Dec.  406;  Pope  v.  Allen,  90 

Kan.  287 ;  Everts  v.  District  Town-  N.  Y.  298. 

ship  of   Rose  Grove,   77   Iowa,   37,  'In  Billington  v.  Welsh,  5  Binn. 

41  N.  W.  478,  14  Am.  St.  Rep.  264.  135,    6   Am.    Dec.    406.     See,    also, 

6  Billington  v.  Welsh,  5  Binn.  129,  Hanrick  v.  Thompson,  9  Ala.  409. 


1416  THE    LAW    OF    DEEDS.  [CHAP.    XXIII. 

ward.'  In  a  word,  the  possession  must  be  actual,  visible,  and 
open.  It  must  not  be  equivocal  or  consistent  with  the  title 
shown  by  the  record.^ 

§  774.  Possession  continuous. — The  party  who  claims 
that  his  possession  was  notice  to  a  subsequent  purchaser,  must 
show  that  the  possession  was  continuous.  A  purchaser  is  not 
compelled  to  inquire  of  a  late  occupier  of  land  as  to  the  na- 
ture of  his  title.^  Where  a  purchaser  at  a  foreclosure  sale 
ousts  the  tenant  of  a  purchaser  from  the  premises  under  an 
unrecorded  deed  and  takes  possession  himself,  the  prior  pos- 
session is  not  notice  of  title  to  subsequent  purchasers  from 
the  grantee  in  the  sheriff's  deed  on  the  foreclosure  sale.'  "It 
must  be  occupancy,  something  more  than  successive  and  occa- 
sional entries  on  the  land.  All  the  authorities  agree  that  pos- 
session is  not  notice,  except  during  its  continuance,  and  that 
even  when  his  vendor  is  out  of  possession,  a  vendee  is  not 
bound  to  take  notice  of  the  antecedent  possession  of  third  per- 
sons. A  purchaser  is  bound  to  inquire  only  of  those  on  the 
land  at  the  time  of  his  purchase.  The  authorities  are  equally 
clear  that  to  be  effective,  as  notice,  possession  even  at  the 
time  of  the  sale  must  be  distinct  and  unequivocal.  It  is  even 
said  in  some  of  the  cases,  that  it  must  be  actual,  and  of  such 
a  nature  as  would  suffice  to  constitute  a  disseisin  or  adverse 

•  McCarthy    v.    Nicrosi,    72    Ala.  farm,  it  not  being  shown,  however, 

332,    47    Am.    Rep.    418.     Where    a  that    she    had     exclusive    control: 

deed  not  recorded  was  executed  by  Elliott   v.   Lane,   82   Iowa,   484,   31 

a  person  to  his  mother  in  law,  both  Am.  St.  Rep.  504. 

residing  on  the  farm  after  the  ex-  »  Pope  v.  Allen,  90  N.  Y.  29& 

ecution  of  the  deed  as  before,  the  ^  Campbell     v.     Brackenridge,     8 

grantor     exercising     authority     to  Blackf.  471 ;  Ehle  v.  Brown,  31  Wis. 

some  extent  over  the  farm  and  the  405.     See   Brown  v.   Volkening,  64 

business  of  farming,  and  the  gran-  N.  Y.  76;  Hewes  v.  Wiswell,  8  Me. 

tee  residing  with  him  as  a  member  94. 

of  his  family,  the  possession  of  the  ^  Ehle    v.    Brown,    31    Wis.    405. 

grantee  is  not  sufficient  to   impart  See,  also,  Hewes  v.  Wiswell,  8  Me. 

notice,     notwithstanding     she     may  94;    Hiller  v.  Jones,  66   Miss.  636, 

have  managed  the  business  of  the  6  So.  Rep.  645. 


CHAP.    XXIII.]         THE    DOCTRINE    OF    NOTICE.  14J7 

possession."  '  Likewise  it  is  clear  that  the  possession  must 
be  one  existing  at  the  time  of  purchase.*  But  a  temporary 
absence  of  a  person  in  the  open,  peaceable  and  exclusive  pos- 
session of  the  property  does  not  affect  the  possession  as  notice 
of  claim  of  title  unless  the  conduct  affords  evidence  of  an 
intentional  abandonment* 

§  775.  Tenant's  Possession  as  notice  of  landlord's 
title. — On  the  question  of  w^hether  a  possession  by  a  ten- 
ant is  notice  of  the  title  of  the  landlord,  the  authorities  are 
divided.  It  is  held,  by  what  we  consider  the  weight  of  au- 
thority, that  the  possession  of  a  party  makes  it  obligatory 
upon  a  purchaser  to  inquire  as  to  the  rights  under  which  such 
possession  is  taken  and  held,  and  charges  such  purchaser  with 
notice  of  all  the  facts  which  he  might  ascertain  by  prosecut- 
ing such  inquiry,  and  hence  such  possession  by  a  tenant  is  no- 
tice of  the  lessor's  title.^  "A  person  who  purchases  an  estate 
in  the  possession  of  another  than  his  vendor,  is,  in  equity,  that 

'Meehan  v.  Williams,  48  Pa.  St.  6  chapman   v.    Chapman,   91    Va. 

238,  240,  per  Strong,  J.,  and  cases  397,  21  S.  E.  813,  50  Am.  St.  Rep. 

cited.    And  see  as  to  rule  in  Eng-  846. 

land,  Knight  v.  Bowyer,  2  De  Gex  ^  Cunningham  v.  Pattee,  99  Mass. 

&  J.  421,  23    Beav.   609;   Jones   v.  248;  Conlee  v.  McDowell,   15  Neb. 

Smith,  1  Hare,  43;  Miles  v.  Lang-  184;  Edwards  v.  Thompson,  71  N. 

ley,   1  Russ.   &  M.   39;    Holmes  v.  C.  177;  Kerr  v.  Day,  14  Pa.  St.  112, 

Powell,  8  De  Gex,   M.  &  G.  572;  53    Am.    Dec.    526;    O'Rourke    v. 

Feilden    v.    Slater,    Law    R.    7    Eq.  O'Connor,  39   Cal.   442;    Dickey  v. 

523 ;  Wilson  v.  Hart,  Law  R.  1  Ch.  Lyon,  19  Iowa,  544 ;  Sailor  v.  Hert- 

463;   Parker  v.  Whyte,  1   Hem.  &  zog,   4   Whart.   259;    Thompson   v. 

M.    167;   Clements  v.   Welles,  Law  Pioche,    44    Cal.    508;    Pittman    v. 

R.  1  Eq.  200,  35  Beav.  513.  Gaty,  5  Gilm.  186;  Nelson  v.  Wade, 

*Roussain   v.    Norton,   53    Minn.  21  Iowa,  49;  Sergeant  v.  Ingersoll, 

560,   55    N.   W.   747;    Patterson   v.  15  Pa.  St.  343;  Morrison  v.  March, 

Mills,  121  N.  C  258,  28  S.  E.  368.  4  Minn.  422;  The  Bank  v.  Flagg, 

And  see  O'Neal  v.  Prestwood,  153  3  Barb.  Ch.  316;  Hood  v.   Fahne- 

Ala.   443,   45    So.   251;    Fronian   v.  stock,  1  Barr.  470,  44  Am.  Dec.  147; 

Manned,   13  Ida.  138,  88  Pac.  894;  The  Bank  v.  Godfrey,  23  111.  579; 

Lusk  V.   Reel,   36  Fla.   418,   18   So.  Kerr  v.  Day,  14  Pa.  St.  112,  53  Am, 

582,  51  Am.  St.  Rep.  32.  Dec  526;  Wright  v.  Wood,  23  Pa. 


1418 


THE    LAW    OF    DEEDS. 


[chap.    XXIlT. 


is,  in  good  faith,  bound  to  inquire  of  such  possessor  what 
right  he  has  in  the  estate.  If  he  fails  to  make  such  inquiry, 
which  ordinary  good  faith  requires  of  him,  equity  charges 
him  with  notice  of  all  the  facts  that  such  inquiry  would  dis- 
close. Suppose  the  possessor  is  a  tenant  holding  under  a  lease, 
an  inquiry  of  such  tenant  would  advise  the  purchaser,  not 
only  of  the  length  of  time  and  terms  of  tenancy,  but  also  of 
the  landlord,  and  hence  that  some  other  person  than  his  pro- 
posed vendor  claimed  a  right  to  the  estate,  and  was  holding 
possession  thereof  by  his  tenant.  Being  thus  advised,  equity 
in  vindication  of  ordinary  good  faith,  requires  him  to  ascer- 
tain the  extent  of  right  of  such  landlord  in  the  estate."  '  While 
this  is  the  rule  that  prevails  in  the  majority  of  the  States, 
it  is  in  conflict  with  the  English  decisions,  and  several  in  our 
own  country.® 


St.  120;  Bowman  v.  Anderson,  82 
Iowa,  210,  31  Am.  St.  Rep.  473; 
Phillips  V.  Blair,  38  Iowa,  649; 
Glendenning  v.  Bell,  70  Tex.  633 ; 
Woodson  V.  Collins,  56  Tex.  175; 
Taylor  v.  Moseley,  57  Miss.  544; 
Liebrick  v.  Stable,  68  Iowa,  515 ; 
Peaseley  v.  McFadden,  68  Cal.  611. 
See,  also,  'Mallett  v.  Kaehler,  141 
111.  70,  30  N.  E.  549;  O'Neill  v. 
Wilcox,  115  la.  15,  87  N.  W.  742; 
Townsend  v.  Blanchard,  117  la. 
36,  90  N.  W.  519;  Wolf  v.  Zabel, 
44  Minn.  90,  46  N.  W.  81 ;  Collum 
V.  Sanger  Bros.,  98  Tex.  162,  82  S. 
W.  459,  83  S.  W.  184;  Chapman  v. 
Chapman,  91  Va.  397,  21  S.  E.  813, 
50  Am.  St.  Rep.  846;  Randall  v. 
Lingwall,  43  Ore.  383,  73  Pac.  1; 
Huntington  v.  Mattfield  (Tex.)  55 
S.  W.  361 ;  Hannan  v.  Seidentopf, 
113  la.  659,  86  N.  W.  44. 

■^Dickey  v.  Lyon,  19  Iowa,  544, 
549,  per  Cole,  J.,  and  cases  cited. 
Where  a  lessor  having  title  of  rec- 


ord in  his  name  when  a  judgment 
is  docketed  against  him  has  con- 
veyed the  land  to  another  who  has 
informed  the  tenant  of  the  execu- 
tion of  the  deed,  a  judgment  credi- 
tor will  not  be  charged  with  notice. 
He  is  charged  with  notice  of  such 
facts  only  as  by  inquiry  he  might 
naturally  be  informed  of  and  not  of 
such  facts  as  the  inquiry  might  pos- 
sibly lead  to :  Wilkins  v.  Bevier,  43 
Minn.  213,  19  Am.  St.  Rep.  238.  A 
tenant's  possession  affords  notice  of 
an  unrecorded  lease:  Dreyfus  v. 
Hirt,  82  Cal.  621 ;  and  of  the  unre- 
corded deed  of  his  lessor:  Morri- 
son v.  Kelly,  22  111.  610,  74  Am. 
Dec.  169 ;  Levy  v.  Holberg,  67  Miss. 
526. 

8  Hanbury  v.  Litchfield,  2  Mylne 
&  K.  629;  Jones  v.  Smith,  1  Hare, 
43 ;  Barnhart  v.  Greenshields,  9 
Moore  P.  C.  C.  26;  Beatie  v.  But- 
ler, 21  Mo.  313,  64  Am.  Dec.  234; 
Flagg  Y.  Mann,  2  Sum.  486.    See, 


CHAP.    XXIII.]        THE    DOCTRINE    OF    NOTICE.  1419 

§  775a.  Notice  from  clause  of  option  to  purchase  in 
lease. — A  clause  in  a  lease  by  which  the  tenant  has  the  op- 
tion to  purchase  the  demised  premises,  is  not  a  part  of  the 
lease,  although  it  may  be  incorporated  in  it.  It  is  a  distinct, 
independent  agreement,  and  not  necessarily  connected  with 
the  lease,  and  is  not  usually  a  part  of  it.  A  person  who  has 
knowledge  of  a  lease  cannot  object,  if  he  purchases  the  prop- 
erty without  examining  the  lease,  that  he  did  not  have  notice 
of  a  particular  covenant,  and,  even  in  some  cases,  notice  may 
be  imputed  to  him  of  unusual  covenants,  and  even  of  a  col- 
lateral agreement  to  purchase.  But  where  notice  arises  from 
the  fact  of  possession  and  the  duty  to  inquire,  the  purchaser 
is  charged  not  only  when  it  may  be  presumed  that  he  actually 
knew,  but  also  when  there  are  reasons  for  believing  that  by 
reasonable  diligence  he  would  have  discovered  the  truth.  The 
tenant's  possession  imposes  upon  an  intending  purchaser  the 
duty  of  inquiry  as  to  the  tenant's  title,  but  as  between  the 
vendor  and  himself,  the  purchaser  will  be  charged  with  notice 
of  the  covenants  of  a  lease  of  which  he  had  knowledge,  but 
had  not  examined,  and  as  to  whose  contents  he  has  been  in 
no  manner  misled,  but  he  will  not  be  charged  with  notice  of 
a  distinct  collateral  agreement.  If  the  agreement  to  sell  has. 
been  separate  and  distinct  from  the  lease,  it  would  not,  as  be- 
tween the  vendor  and  vendee,  have  been  notice  of  the  equity 
of  the  tenant.  Hence,  if  the  tenant  exercises  his  option  to 
purchase  during  the  existence  of  the  tenancy,  the  vendee  may 
purchase  from  the  tenant  and  recover  the  difference  in  price 
from  the  lessor.' 

§  776.     Comments. — The      underlying      principle      on 
which  the  notice  arising  from  possession  is  based,  is  that  a 

also,  Veazie  v.  Parker,  23  Mo.  170;  9  Wertheimer  v.  Thomas,  168  Pa. 

Roll  V.  Rea,  50  N.  J.  L.  266.    And       St.  168,  47  Am.  St.  Rep.  882. 
see   Smith   v.    T^Iiller,   63   Tex.    72; 
Steel  V.  De  May,  102  Mich.  274,  60 
N.  W,  684 


1420  THE    LAW    OF    DEEDS.  [CHAP.    XXIII. 

fact  is  presented  to  the  purchaser's  attention,  which,  if  he  is 
acting  in  good  faith,  is  sufficient  to  cause  him  to  pause,  and  as- 
certain to  what  title  that  fact  is  attributable.  He  should  sat- 
isfy himself  as  to  the  extent  of  the  claim  made  by  the  party 
in  possession.  If  he  finds  that  the  latter  is  holding  under  an 
unrecorded  deed,  he  knows  that  he  cannot  secure  a  valid  title. 
If  the  person  in  possession  is  holding  as  a  tenant  of  one  who 
has  an  unrecorded  deed,  this  fact  is  as  easily  learned  as  if  the 
tenant  was  himself  the  grantee  in  the  unrecorded  deed.  The 
landlord's  title  can  be  ascertained.  The  purchaser  should  at 
least  make  an  effort  to  ascertain  the  character  of  the  title  of 
the  party  in  possession.  If  he  does  not  make  the  attempt,  he 
must  suffer  the  consequences  of  his  negligence.  He  is  charge- 
able with  notice  of  all  that  a  proper  inquiry  would  have  dis- 
closed. We  think  that  when  the  doctrine  of  notice  from  pos- 
session is  once  admitted,  the  possession  of  a  tenant  should  be 
notice  of  the  title  of  the  landlord. 

§  777.  An  inference  of  fact. — While  in  many  cases  ex- 
pressions are  found  to  the  effect  that  possession  is  notice  itself, 
yet  these  seem  to  be  incorrect  statements  of  the  true  rule.  In 
such  cases  certain  facts  have  existed  which  the  court  consid- 
ered sufficient  to  put  a  party  upon  inquiry,  and,  having  failed 
to  prosecute  it,  he  is  chargeable  with  all  he  might  have  learned 
if  he  had  commenced  an  investigation  and  diligently  prose- 
cuted it.  There  can  be  little  or  no  doubt  that  if  such  inquiry 
had  been  properly  prosecuted,  and  the  party  had  not  obtained 
information  as  to  the  true  title,  he  would  not  be  held  charged 
with  notice.  That  is,  the  notice  given  by  possession  is  an  in- 
ference of  fact.  The  correct  rule,  it  seems  to  us,  is  stated  by 
Mr.  Justice  Selden:  "Possession  by  a  third  person,  under 
some  previous  title,  has  frequently  but  inaccurately  been  said 
to  amount  to  constructive  notice  to  a  purchaser  of  the  nature 
and  extent  of  such  prior  right.  Such  a  possession  puts  the 
purchaser  upon  inquiry,  and  makes  it  his  duty  to  pursue  his 


CHAP.    XXIII.]         THE    DOCTRINE    OF    NOTICE.  1421 

inquiries  with  diligence,  but  is  not  absolutely  conclusive  upon 
him;"  and  further,  "the  true  doctrine  on  this  subject  is,  that 
where  a  purchaser  has  knowledge  of  any  fact  sufficient  to  put 
him  on  inquiry  as  to  the  existence  of  some  right  or  title  in 
conflict  with  that  he  is  about  to  purchase,  he  is  presumed  either 
to  have  made  the  inquiry  and  ascertained  the  extent  of  such 
prior  right,  or  to  have  been  guilty  of  a  degree  of  negligence 
equally  fatal  to  his  claim,  to  be  considered  as  a  bona  fide  pur- 
chaser. This  presumption,  however,  is  a  mere  inference  of 
fact,  and  may  be  repelled  by  proof  that  the  purchaser  failed 
to  discover  the  prior  right,  notwithstanding  the  exercise  of 
proper  diligence  on  his  part."  ^  Where  a  person  has  paid  the 
full  consideration,  taken  possession  and  erected  permanent  and 
valuable  improvements,  he  has  a  perfect  equitable  title,  and 
in  a  suit  by  a  subsequent  purchaser  for  possession,  the  prior 
purchaser  may  set  up  his  equitable  title  by  way  of  cross-com- 
plaint, and  obtain  a  decree  to  quiet  his  title.^ 

1  In  Williamson  v.  Brown,  15  N.  been  told  he  Had  none,  it  would  be 
Y.  354.  In  Rogers  v.  Jones,  8  N.  H.  very  preposterous  to  say  that  he 
264,  270,  Mr.  Justice  Parker,  in  de-  was,  notwithstanding,  to  be  charged 
livering  the  opinion  of  the  court,  with  constructive  notice  of  the  deed 
said :  "Possession  is  by  no  means  to  the  wife,  because  she  also  lived 
conclusive  evidence  of  the  existence  on  th^  land,  and  he  had  not  in- 
of  a  title  in  the  party  in  possession.  quired  of  her.  Were  this  other- 
It  may  be  prima  facie  evidence  of  wise,  an  owner  who  was  in  posses- 
title,  and  is,  in  general,  a  sufficient  sion  would  have  an  absolute  ex- 
notice  to  put  a  third  person  on  in-  emption  from  the  provisions  of  the 
quiry  (Colby  v.  Kenniston,  4  N.  H.  registry  act,  his  possession  amount- 
266;  Daniels  v.  Davison,  16  Ves.  ing  to  constructive  notice,  or,  in 
254;  Allen  v.  Anthony,  1  Mer.  other  words,  to  conclusive  evidence 
283)  ;  and  to  charge  him  construe-  of  notice  of  his  title."  See,  also, 
tively  with  notice  of  an  existing  Fair  v.  Stevenot,  29  Cal.  486;  Kerr 
title  under  which  the  tenant  entered  v.  Day,  14  Pa.  St.  112,  SZ  Am.  Dec. 
if  he  neglects  it.  But  being  a  no-  526;  Whitbread  v.  Jordan,  1  Younge 
tipe  which  puts  a  party  on  inquiry  &  C.  303;  Thompson  v.  Pioche,  44 
merely,  it  is  not,  as  we  have  seen,  Cal.  508;  Flagg  v.  Mann,  2  Sum. 
necessarily    constructive   notice.     If  486. 

the  demandant  had  inquired  of  the  ^  Barnes  v.  Union  School  Town- 
tenant  whether  he  held  a  deed,  and  ship,  91  Ind.  301. 


1422 


THE    LAW    OF    DEEDS. 


[chap.   XXIII. 


PART  in. 

Agency. 

§  778.  Notice  to  an  agent. — The  law  implies  to  the 
principal  such  notice  as  the  agent  acquires  as  to  the  state  of 
the  title,  when  engaged  in  negotiations  for  the  purchase  of 
the  property.'  The  notice  to  bind  the  principal  must  be  given 
in  the  same  transaction  in  which  the  agent  is  employed  by 


3  Meier  v.  Blume,  80  Mo.  179; 
Bank  of  United  States  v.  Davis,  2 
Hill,  451;  Williamson  v.  Brown,  15 
N.  Y.  354,  359;  Josepthal  v.  Hey- 
man,  2  Abb.  N.  C.  22;  Hovey  v. 
Blanchard,  13  N.  H.  145;  Walker 
V.  Schreiber,  47  Iowa,  529;  Ames  v. 
New  York  Ins.  Co.,  14  N.  Y.  253; 
First  Nat.  Bank  of  Milford  v. 
Town  of  Milford,  36  Conn.  93; 
Farrington  v.  Woodward,  82  Pa. 
St.  259;  Westervelt  v.  Haff,  2  Sand. 
Ch.  98;  Holden  v.  New  York  etc. 
Bank,  72  N.  Y.  86;  Allen  v.  Poole, 
54  Miss.  323;  Fuller  v.  Bennett,  2 
Hare,  394;  Boursot  v.  Savage,  Law 
R.  2  Eq.  134;  Rickards  v.  Gled- 
stanes,  3  Giff.  298.  See,  also,  Ow- 
ens V.  Roberts,  36  Wis.  258;  Ward 
V.  Warren,  82  N.  Y.  265;  Suit  v. 
Woodhall,  113  Mass.  391;  Jones  v. 
Bamford,  21  Iowa,  217;  Smith  v. 
Denton,  42  Iowa,  48;  Tagg  v.  Ten- 
nessee National  Bank,  9  Heisk.  479; 
Jackson  v.  Leek,  19  Wend.  339; 
Myers  v.  Ross,  3  Head,  59;  Saffron 
etc.  Soc.  V.  Rayner,  Law  R.  14  Ch. 
D.  406;  Atterbury  v.  Wallis,  8  De 
Gex,  M.  &  G.  454 ;  Dryden  v.  Frost, 
3  Mylne  &  C.  670 ;  Sheldon  v.  Cox, 

2  Eden,  224;  Tunstall   v.  Trappes, 

3  Sim.  301 ;   Dickerson  v.   Bowers, 
42  N.  J.  Eq.  295;  Stokes  v.  Riley, 


121  111.  166;  Bigley  v.  Jones,  114 
Pa.  St.  510;  Young  v.  Shauer,  73 
Iowa,  555,  5  Am.  St  Rep.  701 ;  Mat- 
thews V.  Riggs,  80  Me.  107 ;  Donald 
V.  Beals,  57  Cal.  399;  Coggswell  v. 
Griffith,  23  Neb.  334,  36  N.  W.  Rep. 
538;  Cowan  v.  Withrow,  111  N.  C. 
306,  16  S.  E.  Rep.  397;  Hickman  v. 
Green,  123  Mo.  165,  29  L.R.A.  39, 
27  S.  W.  Rep.  440 ;  Merchants'  Nat. 
Bank  v.  Lovett,  114  Mo.  519,  35  Am. 
St.  Rep.  770;  Slattery  v.  Schwan- 
necke,  118  N.  Y.  543,  23  N.  E.  Rep. 
922;  Morrison  v.  Bausemer,  32 
Gratt.  225;  Bigley  v.  Jones,  114  Pa. 
St.  510,  7  Atl.  Rep.  54;  Smith  v. 
Ayer,  101  U.  S.  320;  Yerger  v. 
Barz,  56  Iowa,  11,  8  N.  W.  Rep. 
769;  Stanley  v.  Chamberlin,  39  N. 
J.  L.  565.  See,  also,  Blair  v,  Whit- 
aker,  31  Ind.  App.  664,  69  N.  E. 
182;  Schreckhise  v.  Wiseman,  102 
Va.  9,  45  S.  E.  745;  La  Dow  v. 
Trust  Co.,  113  Fed.  13;  In  re  Wag- 
ner, 110  Fed.  931;  Russell  v.  Peavy, 
131  Ala.  563,  32  So.  492;  Chapman 
v.  Hughes,  134  Cal.  641 ;  Noyes  v. 
Tootle,  2  Ind.  T.  144,  48  S.  W.  103 ; 
Comey  v.  Harris,  118  N.  Y.  S.  244, 
133  App.  Div.  686;  ConnoUey's  Ex'r 
V.  Beckett,  (Ky.)  105  S.  W.  446; 
Miller  V.  Jones.  (Ky.)  107  S.  W. 
783.  -» 


CHAP.    XXIII.]         THE    DOCTRINE    OF    NOTICE, 


1423 


the  principal*  If  a  person,  while  a  director  of  a  corporation, 
executes  a  deed  of  land  which  he  owns,  and  subsequently  makes 
a  mortgage  to  the  corporation,  the  latter  is  not  charged  with 
constructive  notice  of  such  prior  deed.  In  the  proceedings  con- 
nected with  the  mortgage,  the  director  deals  with  the  corpora- 
tion as  a  third  party.  His  acts  in  this  matter  are  against  the 
corporation,  and  for  himself  alone. ^    If  before  the  commence- 


*  New  York  Central  Ins.  Co.  v. 
National  Ins.  Co.,  20  Barb.  468; 
Warrick  v.  Warrick,  3  Atk.  291; 
Fuller  V.  Bennett,  2  Hare,  404.  See, 
also,  McCormick  v.  Wheeler,  36  111. 
114,  85  Am.  Dec.  388;  Howard  Ins. 
Co.  V.  Halsey,  8  N.  Y.  271,  59  Am. 
Dec.  478;  Houseman  v.  Girard  etc. 
Assn.,  81  Pa.  St.  256;  Weisser  v. 
Dennison,  10  N.  Y.  68,  61  Am.  Dec. 
731;  North  River  Bank  v.  Aymar, 
3  Hill,  262;  Blumenthal  v.  Brainerd, 
38  Vt.  402,  91  Am.  Dec.  350;  Roach 
V.  Karr,  18  Kan.  539,  26  Am.  Re.p, 
788;  Finch  v.  Shaw,  19  Beav.  500; 
Wyllie  V.  Pollen,  3  De  Gex,  J.  & 
S.  596 ;  Banco  de  Lima  v.  Anglo- 
Peruvian  Bank,  Law  R.  8  Ch.  D. 
160;  Lloyd  v.  Attwood,  3  De  Gex 
&  J.  614;  Worsley  v.  Earl  of  Sear- 
borough,  3  Atk.  392;  Barbour  v. 
Wiehle,  116  Pa.  St.  308,  9  Atl.  Rep. 
520;  Hood  v.  Fahnesock,  8  Watts, 
489,  34  Am.  Dec.  489;  Fry  v.  She- 
bee,  55  Ga.  208;  Pepper  v.  George, 
51  Ala.  190;  Johnson  v.  Tribbey,  27 
App.  D.  C.  281;  Pacific  Mfg.  Co. 
V.  Brown,  8  Wash.  347,  36  Pac.  Rep. 
763;  May  v.  Borel,  12  Cal.  91; 
Whitney  v.  Burr,  115  111.  289,  3  N. 
E.  Rep.  434 ;  Rogers  v.  Palmer,  102 
U.  S.  263,  26  L.  ed.  164 ;  Satterfield 
V.  Malone,  35  Fed.  Rep.  445 ;  Prin- 
gle  V.  Dunn,  Z1  Wis.  449,  19  Am. 
Rep.  772;  Clark  v.  Fuller,  39  Conn. 
238;   Wood  v.  Rayburn,   18  Or.  3, 


22  Pac.  Rep.  521;  Haywood  v. 
Shaw,  16  How.  Pr.  119;  Weisser  v. 
Dennison,  10  N.  Y.  68,  61  Am.  Dec. 
731 ;  Hodgkins  v.  Montgomery  Co. 
Ins.  Co.,  34  Barb.  213 ;  Morrison  v. 
Bausemer,  32  Gratt.  225;  Tucker  v. 
Tilton,  55  N.  H.  223 ;  Willis  v.  Val- 
lette,  4  Met.  (Ky.)  186;  Kaufman 
v.  Robey,  60  Tex.  308,  48  Am.  Rep. 
264;  Roach  v.  Karr,  18  Kan.  529,  26 
Am.  Rep.  788;  Harrington  v.  Mc- 
Farland,  1  Tex.  Civ.  App.  289,  21 
S.  W.  Rep.  116;  Smith  v.  Sublett, 
28  Tex.  163;  Irvine  v.  Grady,  85 
Tex.  120,  19  S.  W.  Rep.  116. 

5  La  Farge  Fire  Ins.  Co.  v.  Bell, 
22  Barb.  54.  See,  also,  Winchester 
v.  Susquehanna  R.  R.,  4  Md.  231; 
Barnes  v.  Trenton  Gas  Light  Co.,  27 
N.  J.  Eq.  33.  In  the  latter  case  the 
court  said :  "His  interest  is  opposed 
to  theirs,  and  the  presumption  is, 
not  that  he  will  communicate  his 
knowledge  of  any  secret  infirmity  of 
the  title  to  the  corporation,  but 
that  he  will  conceal  it.  Where  an 
officer  of  a  corporation  is  thus  deal- 
ing with  them,  in  his  own  interest 
opposed  to  theirs,  he  must  be  held 
not  to  represent  them  in  the  trans- 
action so  as  to  charge  them  with 
the  knowledge  he  may  possess,  but 
which  he  has  not  communicated  to 
them,  and  which  they  do  not  other- 
wise possess,  of  facts  derogatory  to 
the  title  he  conveys." 


1424  THE    LAW    OF    DEEDS.  [CHAP.    XXIII. 

ment  of  the  agency  the  agent  had  notice  of  an  unrecorded 
Hen  on  a  piece  of  real  property,  and  his  principal  afterward 
takes  a  deed  of  it,  it  requires  very  strong  evidence  to  show 
that  at  the  time  of  the  execution  of  the  deed,  or  of  the  pur- 
chase, the  agent  remembered  the  reception  of  such  notice  to 
charge  the  principal  with  the  notice  of  the  agent.®  It  is  said 
by  Judge  Story  that  "unless  notice  of  the  fact  come  to  the 
agent  while  he  is  concerned  for  the  principal  and  in  the  course 
of  the  very  transaction,  or  so  near  before  it  that  the  agent 
must  be  presumed  to  recollect  it,  it  is  not  notice  thereof  to 
the  principal.  For  otherwise  the  agent  might  have  forgotten 
it,  and  then  the  principal  would  be  affected  by  his  want  of 
memory  at  the  time  of  undertaking  the  agency.  Notice,  there- 
fore, to  the  agent  before  the  agency  is  begun,  or  after  it  has 
terminated,  will  not  ordinarily  affect  the  principal."  "^ 

§  779.  Matter  material  to  the  transaction. — To  affect 
the  principal  with  the  notice  received  by  the  agent,  the  notice 
must  be  of  some  fact  material  to  the  transaction.  If  the  au- 
thority of  the  agent  is  confined  to  obtaining  the  execution  of 
the  deed,  the  notice  of  the  agent  is  not  imputable  to  the  prin- 
cipal.' A  grantor  took  a  mortgage  from  his  grantee  to  se- 
cure the  payment  of  the  purchase  money,  and  intrusted  it  to 
the  grantee  to  have  it  recorded.  Before  depositing  the  mort- 
gage for  record,  the  grantee  and  mortgagor  sold  the  land  to 
a  bona  fide  puchaser,  by  a  written  executory  contract.  Such 
purchaser  paid  the  grantee  a  full  and  valuable  consideration, 
and  had  no  notice  whatever  of  the  rights  of  the  mortgagee. 
The  mortgage  was  recorded  before  the  mortgagee  had  any 
notice  of  the  rights  of  the  contract  purchaser,  and  before  the 
latter  had  acquired  the  legal  title  or  had  taken  actual  notorious 

6  Morrison  v.  Bausemer,  32  Gratt.  S.  782.     See,  also,  Storms  v.  Mun- 

225.  dy,  46  Tex.  Civ.  App.  88.  101  S.  W. 

'Story,  Agency,   §    140.  258. 
8  Wyllie  V.  Pollen,  32  Law  J.  N. 


CHAP.    XXIII.]        THE    DOCTRINE    OF    NOTICE.  1425 

possession.  The  mortgagee  was  held  to  have  the  priority  of 
right'  The  notice  must  be  received  by  the  agent,  while  act- 
ing as  such,  during  the  course  of  his  actual  employment.^  The 
rule  that  the  principal  is  bound  by  notice  to  his  agent  is  not 
altered  by  the  fact  that  the  agent  is  unable  to  read  or  write.* 

§  780.  Agent  for  both  parties. — When  both  the  grant- 
or and  grantee  employ  the  same  agent  or  attorney,  the  knowl- 
edge that  he  acquires  during  the  continuance  of  his  agency 
is  the  knowledge  of  both  parties.'  A  solicitor  induced  a  client 
to  take  a  mortgage  upon  certain  lands,  and  afterward  induced 
another  client  to  take  a  mortgage  also  on  the  same  land.  The 
solicitor  did  not  inform  the  second  mortgagee  of  the  first  mort- 
gage. The  second  mortgage  was  first  registered.  But  it  was 
held  that  the  second  mortgagee  must  be  considered  as  having 
had,  through  the  solicitor,  notice  of  the  first  mortgage,  and 
did  not  obtain  precedence  by  priority  of  registration.* 

§  781.  Fraud  of  agent. — The  law  presumes  that  the 
agent  will  acquaint  his  principal  with  such  information  as  he 

•Anketel    v.    Converse,    17    Ohio  Mylne  &  C.  670;  Wilde  v.  Gibson, 

St  11,  91  Am.  Dec.  115.     See  Hop-  1  H.  L.  Cas.  605;  Roach  v.  Karr,  18 

pock  V.  Johnson,  14  Wis.  303.  Kan.  529,  26  Am.  Rep.  788;  Tuck- 

1  McCormick  v.   Wheeler,  36  111.  er  v.  Tilton,  55  N.  H.  223. 

114,   85    Am.    Dec.    388;    Smith    v.  2  Meier  v.  Blume,  80  Mo.  179. 

Denton,  42  Iowa,  48;  May  v.  Borel,  3  Losey  v.  Simpson,  11  N.  J.  Eq. 

12  Cal.  91 ;  Clark  v.  Fuller,  39  Conn.  346 ;  Fuller  v.  Bennett,  2  Hare,  403  ; 

238;  Weisser  v.  Dennison,  10  N.  Y.  Brotherton   v.   Hatt,  2  Vern.  574; 

68,    61    Am.    Dec.    731;    Russell    v.  Hargreaves    v.    Rothwell,    1    Keen, 

Sweezey,  22  Mich.  235;  Fry  v.  She-  154.     See,  also,  Dryden  v.  Frost,  3 

bee,  55  Ga.  208;  Jones  v.  Bamford,  Mylne    &    C.    670;    Majoribanks    v. 

21   Iowa,  217;   Hodgkins  v.    Mont-  Hovenden,  Dru.  11 ;  Tucker  v.  Hen- 

gomery  Co.  Ins.  Co.,  34  Barb.  213;  zill,  4  Irish  Ch.  Rep.  513;  Sheldon 

Pepper  v.  George,  51  Ala.  190;  Spa-  v.  Cox,  2  Eden,  224;  Tweedale  v. 

done  V.  Manvel,  2  Daly,  263;  New  Tweedale,  23  Beav.  341. 

York  Cent.  Ins.  Co.  v.  National  Pro-  *  Rolland  v.  Hart,  Law  R.  6  Ch. 

tection  Ins.  Co.,  20  Barb.  468;  Saf-  678.     See,    also,    Boursot    v.    Sav- 

fron   etc.   Soc.   v.    Rayner,  Law   R.  age,  Law  R.  2  Eq.  134. 
14  Ch.  D.  406;  Dryden  v.  Frost,  3 
Deeds,  Vol.  II.— 90 


1426 


THE    LAW    OF    DEEDS. 


[chap.  XXIII. 


acquires  in  the  course  of  the  transaction  in  which  he  is  em- 
ployed. But  where  the  agent  intends  to  commit  a  fraud  for 
his  own  benefit,  this  presumption,  of  course,  can  no  longer 
prevail.  In  such  a  case  it  is  essential  in  order  that  the  agent 
may  carry  out  his  fraudulent  design  that  he  should  conceal 
the  real  facts  from  his  principal.  A  contrary  presumption, 
where  the  agent  has  been  guilty  of  fraud,  naturally  arises,  that 
no  communication  has  been  made  to  the  principal  by  the  agent 
of  the  facts  which  he  has  learned  during  his  agency.  There- 
fore, in  case  of  the  agent's  fraud  the  principal  is  not  affected 
with  notice  to  the  agent.^ 

§  782.  Notice  to  a  partner. — Where  a  person  has  ac- 
tual notice  of  a  prior  deed,  and,  with  his  partners,  purchases 
the  same  land,  his  partners  in  the  purchase  are  affected  with 
the  same  notice,  although  at  the  time  they  knew  nothing  of 


*  Cave  V.  Cave,  Law  R.  15  Ch. 
639;  Frail  v.  Ellis,  16  Beav.  350; 
Kennedy  v.  Green,  3  Mylne  &  K. 
699;  In  re  European  Bank,  Law  R. 

5  Ch.  358;  Waldy  v.  Gray,  Law  R. 
20  Eq.  238,  251 ;  Hiorns  v.  Holtom, 
16  Beav.  259;  Ogilvie  v.  Jeafifreson, 
2  Giff.  353;  Winchester  v.  Susque- 
hanna R.  R.,  4  Md.  231;  Fulton 
Bank  v.  New  York  and  Sharon  C. 
Co.,  4  Paige,  127;  Hope  Fire  Ins. 
Co.  V.  Cambrelling,  1  Hun,  493; 
Barnes  v.  Trenton  Gas  Co.,  27  N.  J. 
Eq.  (12  Green,  C.  E.)  33;  McCor- 
mick  V.  Wheeler,  36  111.  114,  85  Am. 
Dec.  388;  Rolland  v.  Hart,  Law  R. 

6  Ch.  678;  Thompson  v.  Cartwright, 
2  De  Gex,  J.  &  S.  10;  Greenskde  v. 
Dare,  20  Beav.  284;  Spencer  v. 
Topham,  2  Jur.  N.  S.  865;  Hewitt 
V.  Loosemoore,  9  Hare,  449;  Rob- 
inson v.  Briggs,  1  Smale  &  G.  188; 
National  Life  Ins.  Co.  v.  Minch,  53 
N.  Y.  144;  Allen  v.  South  Boston 


R.  Co.,  150  Mass.  200,  5  L.R.A.  716, 
15  Am.  St.  Rep.  175,  22  N.  E.  Rep. 
917;  Innerarity  v.  Merchants'  Nat. 
Bank,  139  Mass.  332,  52  Am.  Rep. 
710;  Frenkel  v.  Hudson,  82  Ala. 
158;  60  Am.  Rep.  736,  2  So.  Rep. 
758;  Dillaway  v.  Butler,  135  Mass. 
479;  Atlantic  Nat.  Bank  v.  Harris, 
118  Mass.  147.  See,  also.  La  Brie 
V.  Cartwright  (Tex.)  118  S.  W. 
785.  But  the  fraud  must  be  inde- 
pendent in  its  character,  so  that 
concealment  was  essential  to  its 
success.  Every  concealment  is  not 
a  fraud:  Atterbury  v.  Walles,  8 
De  Gex,  M.  &  G.  454;  Rolland  v. 
Hart,  Law  R.  6  Ch.  678;  Boursot 
v.  Savage,  Law  R.  2  Eq.  134.  The 
signing  of  a  deed  by  a  person  as- 
suming to  act  as  an  agent  of  an- 
other may  give  notice  of  the  inter- 
est of  his  principal  in  the  land :  So- 
lari  V.  Snow,  101  Cal.  387^ 


CHAP,    XXIII.]        THE    DOCTRINE    OF    NOTICE.  1427 

such  purchase.  The  purchaser,  by  taking  a  deed  in  the  name 
of  his  associates,  is  regarded  as  having  acted  as  their  agent. 
Notice  to  him,  therefore,  is  equivalent  to  notice  to  them. 
"It  would  indeed  be  singular  if  the  legal  effect  of  notice  could 
be  obviated  by  so  easy  a  subterfuge  as  the  insertion  of  the 
names  of  other  parties  in  the  conveyance."  • 

§  783.  Consulting  attorney. — If  a  person,  before  mak- 
ing a  purchase  of  a  piece  of  land,  consults  with  an  attorney 
for  the  purpose  of  having  him  examine  the  records  to  see 
what  conveyances  were  of  record,  he  is  not  chargeable  with 
all  the  knowledge  which  the  attorney  may  possess  concern- 
ing the  matter  about  which  such  purchaser  has  consulted  him.'' 
The  notice  to  the  agent  is  not  notice  to  the  principal,  unless 
it  is  present  in  his  mind  when  acting  as  agent,  and  he  may  con- 
vey his  information  without  a  violation  of  professional  confi- 
dence. Where,  by  mistake,  one  of  a  firm  of  attorneys  executes 
a  total  instead  of  a  partial  release  of  a  mortgage,  and  this  re- 
lease is  recorded,  and  afterward,  on  the  negotiation  of  another 
loan,  the  borrower  employs  the  same  firm  to  examine  the  title 
for  him,  but  the  examination  is  made  by  another  member  of 
the  firm,  who  possessed  no  knowledge  of  the  prior  transac- 
tion, and  knew  nothing  of  the  title  except  what  the  abstract 
disclosed,  notice  of  the  mistake  in  making  a  total  release  of 
the  mortgage  cannot  be  charged  to  the  borrower.'  A  prin- 
cipal is  not  charged  with  notice  because  his  attorney  while 
acting  for  another  in  a  different  transaction,  obtained  knowl- 
edge of  a  fact  unless  it  be  shown  that  at  the  time  of  the  trans- 
action, such  knowledge  was  present  in  the  mind  of  the  attor- 
ney, and  the  person  who  seeks  to  charge  another  with  notice 

e  Stanley   v.   Green,   12   Cal.    148.  '  Meuley  v.  Zeigler,  23  Tex.  88. 

See  Wise  v.  Tripp,  13  Me.  9;  Ste-  »  Wittenbrock  v.  Parker,  102  Cal. 

vens   V.   Goodenough,   26   Vt.   676;  93,  24  L.R.A.  197,  41  Am.  St.  Rep. 

Cunningham  v.  Woodbridge,  76  Ga.  172.     See,    also,    Arrington    v,    Ar- 

302;  LiUleton  v.  Giddings,  47  Tex.  rington,  114  N.  C.  151,  19  S.  E.  Rep. 

109.  351. 


1428 


THE    LAW    OF    DEEDS. 


[chap.  xxin. 


by  this  means,  has  the  burden  of  proving  that  such  knowledge 
was  present  in  the  mind  of  the  attorney  at  such  time.' 

§  784.  Notice  to  trustee. — Where  a  person  is  to  act 
as  trustee  by  an  agreement  between  the  grantor  and  cestui  que 
trust,  and  the  trustee  has  notice  of  the  fraudulent  intent  with 
which  the  grantor  executed  the  deed  of  conveyance  wherein 
he  is  named  as  trustee,  the  cestui  que  tru^t  is  affected  with  the 
notice  in  this  respect  possessed  by  the  trustee.* 

§  785.  Agent  to  examine  title. — One  person  relied 
upon  another  to  take  a  mortgage,  and  to  see  that  the  title  was 
perfect.  It  was  held  that  the  former  to  this  extent  made  the 
latter  his  agent,  and  that  he  was  chargeable  with  the  agent's 
knowledge  of  a  pre-existing  mortgage.^ 


'  Constant  v.  University  of  Roch- 
ester, 111  N.  Y.  604,  2  L.R.A.  734, 
7  Am.  St.  Rep.  769,  19  N.  E.  631. 
In  this  case  the  authorities  are  re- 
viewed and  Mr.  Justice  Peckham 
in  delivering  the  opinion  of  the 
court  says.  "From  all  these  various 
cases  it  will  be  seen  that  the  fur- 
thest that  has  been  gone  in  the  way 
of  holding  a  principal  chargeable 
with  knowledge  of  facts  communi- 
cated to  his  agent,  where  the  no- 
tice was  not  received  or  the  knowl- 
edge obtained  in.  the  very  transac- 
tion in  question,  has  been  to  hold 
the  principal  chargeable  upon  clear 
proof  that  the  knowledge  which  the 
agent  once  had,  and  which  he  had 
obtained  in  another  transaction,  at 
another  time  and  for  another  prin- 
cipal, was  present  to  his  mind  at 
the  very  time  of  the  transaction  in 
question."  See,  alsc^,  to  same  ef- 
fect: Slattery  v.  Schwannecke,  118 
N.  Y.  543,  23  N.  E.  922;  Hoppock 


V.  Johnson,  14  Wis.  303;  Connell 
V.  Connell,  32  W.  Va.  319,  9  S.  R 
252.  The  employment  of  the  at- 
torney should  have  begun :  Caugh- 
man  v.  Smith,  28  S.  C.  605,  5  S.  E. 
362;  Yerger  v.  Barz,  56  Iowa,  77, 
8  N.  W.  769;  Bunker  v.  Gordon,  81 
Me.  66,  16  Atl.  341 ;  Shoemaker  v. 
Smith,  80  Iowa,  655,  45  N.  W.  744. 

1  Pope  v.  Pope,  40  Miss.  516. 
Notice  to  the  trustee  is  generally 
notice  to  the  beneficiary:  Pope  v. 
Pope,  40  Miss.  516;  Meyers  v. 
Ross,  3  Head,  59;  Stevens  v.  Good- 
enough,  26  Vt.  676.  But  where  the 
trustee  is  appointed  by  the  grantor 
to  secure  a  debt,  see  Fargason  v. 
Edrington,  49  Ark.  207. 

2Sowler  V.  Day,  58  Iowa,  252. 
Notice  to  the  attorney  is  notice  to 
the  client.  See  Edwards  v.  Hillier, 
70  Missr  803,  13  So.  Rep.  692; 
Smith  V.  Ayer,  101  U.  S.  320; 
Bunker  v.  Gordon,  81  Me.  66,  16 
Atl.  Rep.  341;  Shoemake  v.  Smith, 


CHAP.    XXIIT.]         THE    DOCTRINE    OF    NOTICE.  1429 

§  786.  Advertisement  of  sale. — A  notice  stating  that 
certain  property  is  for  sale  may  be  as  effectual  for  the  purpose 
of  giving  notice  as  a  statement  from  the  owner  himself.  The 
agent  of  a  person  claiming  title  to  a  piece  of  property  put  upon 
the  premises  a  board  on  which  was  printed:  "For  sale  by  S. 
H.  Kerfoot  &  Co.,  48  Clark  St."  A  creditor  whose  judgment 
lien  accrued  while  this  notice  remained  posted,  was  held  to  be 
notified  of  the  interest  of  the  party  claiming  title.  The  extent 
and  character  of  the  title  could  have  been  ascertained  upon  in- 
quiry of  the  agents,  and  the  judgment  creditor  therefore  could 
not  be  regarded  a  bona  fide  puchaser.^ 

§  787.  Resale  by  vendor. — Where  a  contract  for  the 
sale  of  real  estate  is  made,  and  the  vendor,  professing  to  act 
as  the  agent  of  the  original  vendee  under  verbal  authority,  and 
that  of  letters  subsequently  written,  resells  the  premises,  and 
executes  a  deed  therefor  to  a  second  purchaser,  the  letters  must 
be  looked  to  as  the  only  proper  and  valid  source  of  authority. 
If  these  letters  do  not  in  fact  authorize  such  resale  and  con- 
veyance, and  the  purchaser  is  aware  of  the  contents  of  such 
letters,  and  of  the  terms  of  the  original  contract,  he  is  not  a 
bona  fide  purchaser  without  notice.  'Tn  such  case,  he  is  to  be 
treated  as  a  trustee  of  the  first  vendee ;  he  stands  upon  the  same 

80  Iowa,  655,  12  N.  W.  Rep.  297;  sequent  purchaser  had  been  in- 
Jones  V.  Bamford,  21  Iowa,  217;  formed  in  writing  that  Kerfoot 
Jackson  v.  Van  Valkenburgh,  8  claimed  the  right  to  sell  the  lot,  and 
Cow.  260;  May  v.  Le  Claire,  11  therefore  claimed  some  title  or  in- 
Wall.  217,  20  L.  ed.  50;  Maxfield  terest  in  it?  And  does  not  such 
V.  Burton,  17  L.  R.  Eq.  15.  notice  put  the  purchaser  upon  in- 
3  Hatch  V.  Bigelow,  39  111.  546.  quiry  as  to  that  interest,  whatever 
The  court,  per  Mr.  Justice  Breese,  it  may  be,  and  whether  held  by  Ker- 
said :  "A  purchaser  is  held  affected  foot,  in  his  own  right,  or  as  agent 
with  notice  of  all  that  is  patent  on  of  another?  A  prudent  man  would 
an  examination  of  the  premises  he  have  gone  to  Kerfoot,  whose  place 
is  about  to  buy.  Is  not,  then,  this  of  business  is  given,  and  ascer- 
advertising  board  to  be  regarded  in  tained  the  nature  of  his  claim  be- 
precisely  the  same  light  as  if  a  sub-  fore  completing  a  purchase." 


1430  THE    LAW    OF    DEEDS.  [CHAP.    XXIII. 

equity  as  his  vendor,  and  will  be  decreed  to  convey  in  the  same 
manner  as  the  original  vendor  under  whom  he  claims."  * 

PART  IV. 

LIS    PENDENS. 

§  788.  Doctrine  of  lis  pendens. — "It  is  the  manifest 
policy  of  the  law  that  there  should  be  an  end  to  litigation,  but 
this  manifest  policy  would  be  easily  thwarted  if,  during  the 
pendency  of  suit,  a  stranger  to  the  suit  could,  by  purchase  from 
one  of  the  suitors,  acquire  new  and  independent  rights — rights 
unaffected  by  and  not  subject  to  the  litigation  then  in  prog- 
ress." ^  Hence  arises  the  doctrine  of  lis  pendens.  During  the 
pendency  of  a  suit  neither  party  should  be  permitted  to  convey 
the  property  in  controversy  so  as  injuriously  to  affect  the  rights 
of  his  adversary.  It  is  sometimes  said  that  the  rules  as  to  the 
effect  of  a  pending  suit  are  founded  upon  the  doctrine  of  con- 
structive notice,  but  the  better  view  seems  to  be  that  these  rules 
rest  rather  on  grounds  of  public  policy.  "It  is  obvious  that 
there  must  be  cases  to  which  the  doctrine  should  apply ;  other- 
wise the  ends  of  justice  might  be  defeated;  the  decrees  of  the 
court  would  be  evaded,  and  the  party  having  the  strongest  in- 
ducement to  prolong  litigation  would  not  unfrequently  find  it 
in  his  power  to  do  so  to  an  unlimited  extent.  It  is  a  rule 
founded  upon  a  great  public  policy."  ^  The  doctrine  of  lis 
pendens  is  not,  as  I  conceive,  founded  upon  any  of  the  peculiar 
tenets  of  a  court  of  equity  as  to  implied  or  constructive  notice. 
It  is,  as  I  think,  a  doctrine  common  to  the  courts,  both  of  law 
and  of  equity,  and  rests,  as  I  apprehend,  upon  this  foundation 
— that  it  would  plainly  be  impossible  that  any  action  or  suit 
could  be  brought  to  a  successful  termination,  if  alienations 

*  Smoot  V.  Rea,  19  Md.  398,  412.  «  Norton  v.  Birge,  35  Conn.  250, 

6  Real    Estate    Savings    Inst.    v.      258,  per  Carpenter,  J. 
Collonious,  63  Ma  290,  294. 


I 


CHAP.    XXIII.]         THE    DOCTRINE    OF    NOTICE. 


1431 


pendente  lite  were  permitted  to  prevail.  The  plaintiff  would 
be  liable  in  every  case  to  be  defeated  by  the  defendants  alienat- 
ing before  the  judgment  or  decree,  and  would  be  driven  to  com- 
mence his  proceedings  de  novo,  subject  again  to  be  defeated 
by  the  same  course  of  proceeding."  '  Aside  from  any  statu- 
tory provision,  the  doctrine  of  lis  pendens  is  everywhere  recog- 
nized.*    The  operation  of  a  lis  pendens  extends  also  to  the 


'  Bellamy  v.  Sabine,  1  De  Gex  & 
J.  566,  584,  per  Lord  Justice  Turn- 
er. 

8  Murray  v.  Finster,  2  Johns.  Ch. 
155;  Murray  v.  Ballou,  1  Johns.  Ch. 
566;  Murray  v.  Lyiburn,  2  Johns. 
Ch.  441 ;  Hopkins  v.  McLaren,  4 
Cowen,  667;  Gossom  v.  Donaldson, 
18  Mon.  B.  230,  68  Am.  Dec.  723; 
Green  v.  White,  7  Blackf.  242;  Kern 
V.  Hazlerigg,  11  Ind.  443,  71  Am. 
Dec.  360;  Ashley  v.  Cunningham, 
16  Ark.  168;  Jackson  v.  Andrews,  7 
Wend.  152,  22  Am.  Dec.  574;  Sea- 
brook  V.  Brady,  47  Ga.  650;  Sedg- 
wick V.  Cleveland,  7  Paige,  287; 
Cook  V.  Mancius,  5  Johns.  Ch.  89; 
Turner  v.  Babb,  60  Mo.  342;  Van 
Hook  V.  Throckmorton,  8  Paige, 
33;  Harrington  v.  Slade,  22  Barb. 
161 ;  McGregor  v.  McGregor,  21 
Iowa,  441 ;  Cooley  v.  Brayton,  16 
Iowa,  10;  Loomis  v.  Riley,  24  111. 
307;  Whiting  v.  Beebe,  7  Eng.  421 
White  V.  Carpenter,  2  Paige,  217 
Griffith  V.  Griffith,  1  Hoff.  Ch.  153 
Chapman  v.  West,  17  N.  Y.  125 
Pratt  V.  Hoag,  5  Duer,  631;  Bor- 
rowscale  v.  Tuttle,  5  Allen,  377; 
Hersey  v.  Turbett,  27  Pa.  St.  418; 
Tredway  v.  McDonald,  51  Iowa, 
663;  Culpepper  v.  Aston,  2  Ch.  Cas. 
115;  Garth  v.  Ward,  2  Atk.  174; 
Roberts  v.  Fleming,  53  111.  196;  Gil- 
man  V.  Hamilton,  16  111.  225 ;  Jack- 
son V.  Warren,  32  111.  331 ;  Truitt 


V.  Truitt,  38  Ind.  16;  Preston  v. 
Tubbin,  1  Vern.  286;  Higgins  v. 
Shaw,  2  Dru.  &  War.  356;  Patter- 
son V.  Brown,  32  N.  Y.  81;  Mit- 
chell V.  Smith,  53  N.  Y.  413; 
O'Reilly  v.  Nicholson,  45  Mo.  160; 
Tharpe  v.  Dunlap,  4  Heisk.  674; 
Blanchard  v.  Ware,  43  Iowa, 
530;  Holman  v.  Patterson's  Heirs, 
29  Ark.  357;  Sorrell  v.  Car- 
penter, 2  P.  Wms.  482;  Worsley 
.V.  Earl  of  Scarborough,  3  Atk. 
392 ;  Brundage  v.  Biggs,  25  Ohio 
St.  652;  Hayden  v.  Bucklin,  9 
Paige,  512;  Haven  v.  Adams,  8  Al- 
len, 363;  McPherson  v.  Housel,  2 
Beas.  299;  Tongue  v.  Morton,  6 
Har.  &  J.  21 ;  Ashley  v.  Cunning- 
ham, 16  Ark.  168;  Edwards  v. 
Banksmith,  35  Ga.  213;  Choudron 
V.  Magee,  8  Ala.  570;  Knowles  v. 
Rablin,  20  Iowa,  101;  Leitch  v. 
Wells,  48  N.  Y.  585;  Ayrault  v. 
Murphy,  54  N.  Y.  202 ;  Salisbury  v. 
Morss,  7  Lans.  359;  Jackson  v. 
Losee,  4  Sand.  Ch.  381 ;  Long  v. 
Neville,  29  Cal.  135;  Parks  v.  Jack- 
son, 11  Wend.  442,  25  Am.  Dec. 
656;  Jackson  v.  Andrews,  7  Wend. 
152,  22  Am.  Dec.  574;  Wattson  v. 
Dowling,  26  Cal.  124;  Tyler  v. 
Thomas,  25  Beav.  47;  Young  v. 
Guy,  23  Hun,  1 ;  Newman  v.  Chap- 
man, 2  Rand.  93,  14  Am.  Dec.  76^; 
Lawrence  v.  Conklin,  17  Hun,  228; 
Allen  V.  Poole,  54  Miss.  323;  Cen- 


1432  THE   LAW    OF    DEEDS.  [CHAP.    XXIIL 

grantee  of  a  grantee.* 

§  789.  Alienation  void  as  against  judgment. — If  a  de- 
fendant were  allowed  to  execute  an  effectual  and  operative 
deed  of  the  land  in  controversy  during  the  pendency  of  a  suit 
affecting  its  title,  a  judgment  in  favor  of  the  plaintiff  would 
be  of  little  or  no  value.  A  deed  under  these  circumstances, 
though  good  between  the  parties  themselves,  can  have  no  ef- 
fect as  against  a  judgment  or  decree  that  may  be  ultimately 
rendered  in  such  suit.^  "The  principle  that  the  purchaser  of 
the  subject-matter  of  a  suit  pendente  lite  acquires  no  interest 
as  against  the  plaintiff's  title,  whether  legal  or  equitable,  is 
too  well  established  to  be  now  questioned.    Such  sale  as  against 


ter  V.  Planters'  and  Merchants' 
Bank,  22  Ala.  743;  Arrington  v. 
Arrington,  114  N.  C.  151,  19  S.  E. 
Rep.  351;  Collingwood  v.  Brown, 
106  N.  C.  362,  10  S.  E.  Rep.  868; 
Spencer  v.  Credle,  102  N.  C.  68, 
8  S.  E.  Rep.  901;  Hart  v.  Steed- 
man,  98  Mo.  452;  Dwyer  v.  Rippe- 
toe,  72  Tex.  520;  Cassidy  v.  Kluge, 
73  Tex.  154. 

9  Norton  v.  Birge,  35  Conn.  250. 
But  see  French  v.  Loyal  Co.,  5 
Leigh,  627. 

1  Calderwood  v.  Tevis,  23  Cal. 
335;  Sharp  v.  Lumley,  34  Cal.  611; 
Montgomery  v.  Byers,  21  Cal.  107; 
Horn  V.  Jones,  28  Cal.  194;  White- 
side V.  Haselton,  110  U.  S.  296,  28 
L.  ed.  152;  Snowman  v.  Harford, 
62  Me.  434;  Lee  v.  Salinas,  15  Tex. 
495 ;  Bayer  v.  Cockerill,  3  Kan.  282 ; 
Copenheaver  v.  Hufifaker,  6  Mon. 
B.  18;  Galbreath  v.  Estes,  3S  Ark. 
599;  Holly  Realty  Co.  v.  Wort- 
man,  121  N.  Y.  S.  572;  Jackson  v. 
Andrews,  7  Wend.  152,  22  Am.  Dec. 
574;  Shotwell  v.  Lawson,  30  Miss. 


27,  64  Am.  Dec.  145;  Hurlbutt  y. 
Butenop,  27  Cal.  50;  Tilton  v.  Co- 
field,  93  U.  S.  163,  23  L.  ed.  858; 
Jackson  v.  Warren,  32  111.  331 ; 
Meux  V.  Anthony,  6  Eng.  411,  52 
Am.  Dec.  274;  Walden  v.  Bodley's 
Heirs,  9  How.  34,  13  L.  ed.  36; 
Inloe's  Lessee  v.  Harvey,  11  Md. 
519;  Gregory  y.  Haynes,  13  Cal. 
594;  Haynes  v.  Calderwood,  23 
CaL  409;  Curtis  v.  Sutter,  15  Cal. 
263.  See,  also,  Di  Nola  v.  Allison, 
143  Cal.  106,  65  L.R.A.  419,  76  Pac. 
976,  101  Am.  St  Rep.  84;  Matteson 
V.  Wagoner,  147  CaL  739,  82  Pac. 
436;  Schartz  v.  Moyers,  99  Va.  519, 
39  S.  E.  166;  Long  v.  Richards,  170 
Mass.  120,  48  N.  E.  1083;  64  Am. 
St.  Rep.  281 ;  Tice  v.  Hamilton,  188 
Mo.  298,  87  S.  W.  497 ;  Parrotte  v. 
Dryden,  73  Neb.  291,  102  N.  W. 
610;  Lockhart  v.  Leeds,  12  N.  M. 
156,  76  Pac.  312;  Wille  v.  Ellis,  22 
Tex.  Civ.  App.  462,  54  S.  W.  922; 
Latta  V.  Wiley,  (Tex.)  92  S.  W. 
433;  McDonald  v.  Rankin,  92  Ark. 
173,  122  S.  W.  Sa. 


CHAP.    XXIII.]         THE    DOCTRINE    OF    NOTICE.  1433 

the  plaintiff  is  considered  a  nullity,  and  he  is  not  bound  to  take 
any  notice  of  it.  The  decree  of  the  court  binds  the  property 
in  the  hands  of  such  purchaser,  although  he  is  no  party  to  the 
suit,  and  paid  a  full  price  for  it,  and  had  in  fact  no  notice  of 
the  pendency  of  the  suit,  or  the  claim  of  the  plaintiff.  He  is 
chargeable  with  constructive  notice  of  the  pendency  of  such 
suit,  so  as  to  render  his  interest  in  the  subject  of  it  liable  to  its 
event.  This  rule  may  sometimes  produce  individual  hardship 
in  its  application  to  a  purchaser,  for  a  full  consideration,  and 
without  actual  notice;  but  if  it  were  not  adopted  and  adhered 
to,  there  would  be  no  end  to  any  suit.  The  justice  of  the  court 
would  be  wholly  evaded  by  aliening  the  lands  after  subpoena 
served  and  the  suitor  subjected  to  great  delay,  expense,  and 
inconvenience,  without  any  certainty  of  at  last  securing  his 
interest.  It  is  for  these  reasons — reasons  founded  on  public 
utility  and  general  convenience — that  the  courts  of  equity  of 
England,  and  of  the  United  States,  whenever  the  question  has 
been  made,  have  uniformly  held  that  he  who  purchases  during 
the  pendency  of  a  suit  is  chargeable  with  constructive  notice 
of  the  rights  of  the  parties  litigant,  and  bound  by  the  decision 
that  may  be  made  against  the  person  from  whom  he  derives 
title."  » 

§  790.  Subject  continued. — If,  while  an  action  for  the 
foreclosure  of  a  mortgage  is  pending,  a  person  with  notice  of 
the  suit  takes  a  deed  of  a  portion  or  of  the  whole  of  the  mort- 
gaged premises,  a  purchaser  under  the  decree  has  the  same 
right  to  the  issuance  of  a  writ  of  assistance  against  such  grant 
as  he  has  against  the  grantor.'  Where  a  person  purchases  a 
piece  of  land  at  a  sale  under  a  decree  of  foreclosure,  he  is 

8Heirs  of  Ludlow  v.  Kidd's  Exec-  also,  Walker  v.  Douglas,  89  111.  425 ; 

utors,  3  Ohio,  541,  542,  per  Sher-  Barelli    v.    Delassus,    16   La.    Ann. 

man,  J.  280;   Boulden  v.   Lanahan,  29   Md. 

'Montgomery   v.    Byers,   21    Cal.  200;  Masson  v.  Saloy,  12  La.  Ann. 

107;    Montgomery    v.    Middlemiss,  776;    Youngman    v.    Elmira    R.    R. 

21  Cal.  103,  81  Am.  Dec.  146.     See,  Co.,  65  Pa.  St.  27a 


1434  THE    LAW    OF    DEEDS.  [CHAP.    XXIll. 

chargeable  with  notice  of  the  rights  of  the  plaintiff  in  another 
suit  for  the  foreclosure  of  another  mortgage  on  the  same  prem- 
ises, and  is  bound  by  the  decree  rendered  subsequently  in  the 
second  suit,  although  he  is  not  made  a  party  to  it.^  One  who 
puchases  the  land  pending  the  litigation  from  one  of  the  par- 
ties to  the  suit,  and  claiming  under  his  deed  alone,  is  as  much 
bound  as  his  grantor.* 

§  791.  Grantee  of  party  to  partition  suit. — Where  a 
suit  for  partition  is  pending,  a  person  who  takes  a  deed  from 
one  of  the  parties  to  such  suit  for  his  interest  in  the  land,  ac- 
quires a  title  or  interest  in  the  premises,  subject  to  such  decree 
as  may  be  finally  rendered.  The  grantee  by  such  purchase 
pendente  life  becomes  a  party  to  the  suit,  whether  he  is  a  party 
to  the  record  or  not.  It  follows  that  whatever  portion  of  the 
common  property  may  be  set  off  in  severalty  to  his  grantor, 
inures  to  the  grantee's  benefit.  So,  if  during  the  pendency  of 
such  a  suit  for  partition,  a  mortgage  be  made  on  an  undivided 
interest  of  a  tenant  in  common,  the  mortgage,  after  partition 
is  made,  is  confined  to  the  interest  awarded  to  the  tenant  in 
common  who  executed  the  mortgage.^  An  action  was  brought 
against  a  purchaser  at  a  partition  sale  to  set  aside  the  sale  on 
account  of  fraud.  The  decision  of  the  lower  court  was  in 
favor  of  the  defendant,  but,  on  appeal,  the  decision  was  re- 
versed, and  after  the  reversal,  the  defendant  executed  a  deed 

*  Cooley  V.  Brayton,  16  Iowa,  10.  '  Welton  v.  Cook,  61  Cal.  481. 

And   that   purchasers    at    execution  ^  Loomis    v.    Riley,    24    111.    307. 

sales  are  affected  by  the  notice  of  Party  obtaining  interest  in  property 

a    lis   pendens,    see,    also.    Hart    v.  is  bound  by  the  decree :     Stein   v. 

Marshall,  4  Minn.  294 ;  Hall  v.  Jack,  McGrath,  128  Ala.  175,  30  So.  792 ; 

32   Md.   253;   Fish  v.   Ravesies,  32  Harms   v.   Jacobs,    160  111.   589,  43 

Ala.  451;    Crooker  v.    Crooker,   57  N.  E.  745;  Becker  v.  Stroeher,  167 

Me.  395;  Hersey  v.  Turbett,  27  Pa.  Mo.  306,  66  S.  W.   1083;   Clark  v. 

St.  418;    T^lcPherson   v.   House!,   2  Charles,  55  Neb.  202,  75  N.  W.  563. 
Beasl.    299;     Steele    v.    Taylor,     i 
Minn.  274;   Berry  y.  Whitaker,  58 
Me.  422. 


CHAP.    XXIII.]        THE    DOCTRINE    OF    NOTICE.  1435 

of  trust  upon  the  land  involved  in  the  suit.  A  few  days  after 
the  time  the  deed  bore  date,  the  cause  was  remanded,  the  prior 
sale  canceled,  and  the  property  resold.  It  was  held  that  one 
who  derived  title  under  the  deed  of  trust  took  with  notice  of 
the  lis  pendens,  and  could  not  maintain  ejectment  against  the 
person  purchasing  at  the  second  judicial  sale.'  A  purchaser  at 
a  tax  sale  obtained  a  decree  by  default  quieting  his  title  against 
one  who  had,  in  fact,  previously  conveyed  the  land,  but  the 
deed  of  the  grantee  had  not  been  recorded  and  the  grantee  was 
not  made  a  party.  The  decree  was  held  not  to  bind  the  grantee, 
and  his  neglect  to  record  the  deed  could  not  affect  him.' 

§  792.     Purchaser  from  person  not  a  party  to  the  suit. 

— A  person  who  purchases  a  tract  of  land  from  one  who  is 
not  a  party  to  the  suit  affecting  it,  or  a  privy  to  such  party, 
is  not  charged  with  constructive  notice  of  the  //.$•  pendens.^  A 
held  a  mortgage  upon  a  tract  of  land,  and  subsequently  B  ac- 
quired a  lien  on  the  same  land,  of  which  A  had  knowledge. 
B  began  proceedings  to  subject  the  land  to  his  lien,  and  the 
tract,  which  had  been  divided  into  fifty-six  building  lots,  was 
sold  by  a  master  to  C.  Some  of  the  lots  were  mortgaged  to 
B  by  C,  and  the  remaining  lots  were  discharged  by  the  sale 
from  B's  lien.  A  had  no  notice  of  the  suit  or  of  any  of  the 
of  the  subsequent  proceedings,  but  the  deeds  and  mortgages 
in  pursuance  of  the  sale  were  duly  recorded.  Subsequently, 
B  foreclosed  the  mortgage  executed  by  C,  and  at  the  begin- 

1 

f  Real  Estate  Saving  Inst.  v.  Col-  The  Royal  Co.,  5  Leigh,  627 ;  Par- 

lonious,  63  Mo.  290.  sons  v.  Hoyt,  24  Iowa,  154;  Clark- 

8  Smith    V.    Williams,    44    Mich.  son  v.  Morgan,  6  B.  Mon.  441.    See, 

240.  also,    Noyes    v.    Crawford,    118   la. 

'Scarlett  v.  Gorham,  28  111.  319;  IS,  91  N.  W.  799,  96  Am.  St.  Rep. 

Miller    v.     Sherry,    2    Wall.     237;  363;    Graham   v.    Kitchen,   118  Ky. 

Parks  V.  Jackson,  11  Wend.  442,  25  18,  80  S.  W.  464;  Merrill  v.  Wright, 

Am.  Dec.  656;  Allen  v.  Morris,  34  65  Neb.  794,  91  N.  W.  697,  101  Am. 

N.  J.  L.   159;   Stuyvesant  v.  Hone,  St.  Rep.  645;  Buxton  v.  Sargent,  7 

1    Sand.    Ch.    419;    Herrington    v.  N.  D.  503,  75  N.  W.  811. 
Hcrrington,  27  Mo.  560;  French  v. 


1436  THE    LAW    OF    DEEDS.  [CHAP.    XXIII. 

ning  of  the  suit  filed  a  statutory  notice  of  lis  pendens.  A,  who 
had  no  actual  notice  of  this  suit,  released  to  C,  while  the  suit 
was  pending,  forty-two  of  the  fifty-six  lots.  The  fourteen 
lots  still  left  subject  to  A's  mortgage  were  a  part  of  those 
which  C  had  mortgaged  to  B,  and  all  of  C's  lots  not  mortgaged 
to  B  were  released  by  A,  The  court  held  that  A  was  not  af- 
fected with  constructive  notice  of  the  first  suit  of  B  or  of  the 
sale  under  his  decree;  that  the  registration  of  the  deeds  to  C 
and  C's  mortgages  was  not  notice  to  A,  and  A,  when  he  re- 
leased, was  not  obliged  to  search  the  records  for  deeds  and  en- 
cumbrances later  than  his  mortgage ;  and  that  neither  the  fore- 
closure suit  of  B,  nor  the  notice  of  lis  pendens  filed,  could 
charge  A  with  notice  of  B's  proceedings,  or  of  his  rights  under 
C's  mortgages.^  So  it  is  held  that  the  doctrine  of  lis  pendens 
has  no  application  to  independent  titles  not  derived  from  any 
of  the  parties  to  the  suit  nor  in  succession  to  them  even  though 
the  statute  provides  that  "no  interest  can  be  acquired  by  third 
persons  in  the  subject  matter  thereof  as  against  the  plaintiff's 
title."  « 

§  792a.  Unrecorded  deed. — As  has  been  said  in  other 
sections,  unless  some  statutory  provision  controls  the  matter, 
an  unrecorded  deed  is  valid  between  the  parties  and  those  who 
are  affected  with  notice,  and  is  void  only  against  subsequent 
purchasers  in  good  faith  and  for  value.  But  what  rights  has 
a  grantee  under  an  unrecorded  deed  as  against  a  prior  record 
of  a  lis  pendens  filed  in  a  suit  to  determine  a  trust  or  the  inter- 
ests of  the  respective  parties  to  the  suit  in  the  land?  Is  he 
bound  by  the  judgment  to  which  he  is  not  a  party,  or  are  his 
rights  unaffected  ?  In  many  States  this  question  is  determined 
by  statute,  but  where  the  statutes  are  silent  the  rule  is  that 
notice  of  a  lis  pendens  is  not  a  conveyance,  and  that  it  is  not 

»  Stuyvesant  v.  Hone,  1  Sand.  Ch.  91  N.  W.  697,  101  Am.  St.  Rep.  645. 
419.  See,  also,  Harrod  v.  Burke,  76  Kan. 

2  Merrill  v.  Wright,  65  Neb.  794,      909,  92  Pac.  1128. 


CHAP.    XXIII. J         THE    DOCTRINE    OF    NOTICE.  1437 

intended  to  confer  new  rights  on  the  plaintiff,  but  to  limit 
those  which  he  had  before,  and  hence  whether  a  deed  is  or 
is  not  recorded  is  immaterial.  A  grantee  under  an  unrecorded 
deed  is  not  affected  by  the  lis  pendens.* 

§  793.  Cross-complaint. — A  person  may  be  charged 
with  notice  of  a  lis  pendens  affecting  land  by  the  averments  of 
4  cross-complaint  as  well  as  by  the  complaint  itself.  A  plain- 
tiff filed  a  petition  for  the  settlement  of  a  partnership  thereto- 
fore existing  between  him  and  the  defendant.  The  defendant 
in  his  answer,  among  other  things,  set  up  by  way  of  cross- 
petition  a  misapplication  of  partnership  funds  by  the  plaintiff, 
which  he  had  fraudulently  caused  to  be  conveyed  to  his  wife. 
The  defendant  asked  in  his  answer  that  the  plaintiff's  wife  and 
the  person  from  whom  the  property  was  purchased  be  made 
parties,  and  that  the  property  to  which  she  held  the  legal  title 
be  subjected  to  the  purposes  of  the  partnership.  The  court 
ordered  her  and  her  grantor  to  be  made  parties,  and  she,  by 
her  attorney,  applied  for  leave  to  answer,  which  was  granted. 
It  was  held  that  by  obtaining  permission  to  answer,  the  wife 
entered  her  appearance  as  a  party,  and  that  a  purchaser  who 
subsequently  obtained  title  to  the  land  from  the  husband  and 
wife  was  affected  with  notice  of  the  suit.* 

§  794.     Principle  applies  also  to  actions  at  law. — It  has 

sometimes  been  asserted  that  the  doctrine  of  lis  pendens  ap- 
plies exclusively  to  equitable  suits.^  But  it  is  now  established 
that  the  principle  applies  to  actions  at  law  as  well.  "This  prin- 
ciple is  not  peculiar  to  courts  of  chancery;  but  the  maxim 

•  Warnock    ▼.    Harlow,    96    Cal.  But  see  contra:   Smith  v.  Hodson, 

298,   31   Am.    St.    Rep.   209;   Hani-  78   Me.    180;    Norton   v.   Birge,   35 

mend    V.    Paxton,    58    Mich.    393;  Conn.  250. 

Vose  V.  Martin,  4  Cush.  27,  50  Am.  *  Brundage  v.  Biggs,  25  Ohio  St 

Dec    750;    Smith   v.    Williams,    44  652. 

Mich.  240 ;  Hall  v.  Nelson,  23  Barb.  6  King  v.  Bill,  23  Conn.  593. 
88;  Freeman  on  Judgments,  §  201, 


1438  THE    LAW    OF    DEEDS.  [CHAP.    XXIII. 

that  pendente  lite  nihil  innovetur,  is  applied  in  real  and  mixed 
actions  by  the  common  law."  '  A  executed  a  deed  to  B,  B 
executed  a  deed  to  C,  and  C  executed  a  deed  to  D.  All  these 
were  fraudulent.  E,  who  possessed  no  actual  knowledge  of 
any  defect  or  infirmity  in  the  title,  took  a  mortgage  from  C. 
The  records  showed  at  the  time  he  took  the  mortgage  that 
the  creditors  of  A  had  levied  attachments  on  the  property.  The 
law  provided  that  such  attachments  might  be  made  the  basis 
of  proceedings  in  insolvency  in  the  probate  court,  the  institu- 
tion of  which  would  dissolve  the  attachments.  As  a  matter 
of  fact  insolvency  proceedings  had  been  instituted,  but  E  took 
his  mortgage  with  the  knov/ledge  that  such  attachments  had 
been  levied,  and  had  subsequently  been  discontinued;  but  he 
made  no  inquiry  to  ascertain  whether  insolvency  proceedings 
had  been  commenced.  The  trustee  in  insolvency  had  brought 
a  bill  in  equity  against  B  to  set  aside  the  fraudulent  deed  to 
him,  which  suit  was  pending  when  E  took  his  mortgage.  The 
deed  of  B  to  C  was  executed  and  delivered  before  the  com- 
mencement of  the  suit,  but  was  not  recorded  or  known  to  the 
trustee  until  a  long  time  after  the  institution  of  the  suit.  The 
doctrine  of  notice  of  lis  pendens  was  applied  to  the  title  ac- 
quired by  E,  and  it  was  said  that  if  he  was  not  fully  charge- 
able with  notice  of  the  rights  of  the  trustee  in  insolvency,  the 
applicaton  of  the  doctrine  produced  no  hardship.' 

'  Secombe  v.  Steele,  20  How.  94,  declared  that  the  statutes  of  regis- 

106,  15  L.  ed.  833,  837,  per  Camp-  try   in   England    (which,   as   to  the 

bell,   J.;   Bellamy  v.    Sabine,   1   De  matter  under  consideration,  are  the 

Gex  &  J.  584.  same  in  effect  as  our  statute),  only 

'  Norton  v.  Birge,  35  Conn.  250.  vested  the  legal  title  in  the  subse- 

The     court     distinguish     this     case  quent  purchaser,  and  left  the  case 

from    King   v.    Bill,  28   Conn.   593.  'open    to    all    equity';    and    in    that 

See,  also,  Sheridian  v.  Andrews,  49  case,   he  relieved  against  a  subse- 

N.  Y.  478.     Speaking  of  the  effect  quent  purchaser,  upon  constructive, 

of  lis  pendens,  Green,  J.,  in  New-  and  not  upon  actual  notice,  the  no 

man  v.  Chapman,  2  Rand.  93,  100,  tice  being  to  an  agent  of  the  pur- 

14     Am.     Dec.     766,    said:     "Lord  chaser.     A   lis  pendens  has  always 

Hardwicke,   in  the  leading  case  of  been  spoken  of  in  the  English  court 

Le  Neve  r.  Lc   Neve,  3  Atk.  646,  of  chancery  as  a  constructive  no- 


CHAP.    XXIII.J         THE    DOCTRINE    OF    NOTICE. 


1439 


§  795.  Acticns  of  ejectment. — Where  an  action  of 
ejectment  has  been  commenced  against  the  person  in  posses- 
sion of  the  property,  one  who  acquires  possession  from  the 


tice  to  all  the  world,  as  all  men  are 
bound  and  presumed  to  take  notice 
of  the  proceedings  of  a  court  of 
justice.  If  these  propositions  were 
universally  true,  it  would  seem  to 
follow  that  a  lite  pendente  purchas- 
er was  a  purchaser  with  notice,  and 
would  take  the  property  subject  to 
the  claims  of  the  plaintiff  in  the 
suit  as  the  defendant  held  it.  In 
all  questions  of  fact,  the  existence 
of  the  matter  in  question  may  be 
proved  by  direct  evidence,  or  by 
proof  of  the  other  facts,  from 
which  it  may  justly  be  inferred 
that  the  fact  in  question. does  ex- 
ist. A  fact  thus  proved  by  cir- 
cumstantial evidence,  is  taken  to 
exist  for  all  purposes  as  if  it  were 
proved  by  direct  evidence.  I  can- 
not, therefore,  feel  the  force  of 
the  observation  frequently  thrown 
out  in  modern  cases,  that  a  notice 
to  affect  a  subsequent  purchaser 
after  an  unregistered  deed  must 
be  actual,  and  such  as  to  affect  his 
conscience,  and  not  constructive. 
A  notice  proved  by  circumstances 
to  exist,  affects  the  conscience  of 
the  party  as  much  as  if  proved  by 
direct  evidence.  In  all  other  cases, 
a  purchaser  of  a  legal  estate  with 
notice  of  a  subsisting  equity,  is 
bound  by  constructive,  as  well  as 
by  actual,  notice;  and  that  because 
his  conscience  is  affected,  and  he  is 
guilty  of  a  fraud.  Without  fraud 
on  his  part,  his  legal  title  ought 
to  prevail.  I  see  no  reason  why  a 
difference  should  be  made  between 
the   case   of   a  purchaser   after  an 


unregistered  deed,  and  a  purchas- 
er of  a  legal  title,  subject  to  any 
other  equity  as  to  the  proof  of 
the  notice  which  ought  to  be  held 
to  bind  them.  This  distinction  be- 
tween an  actual  and  constructive 
notice,  in  the  case  of  a  purchaser 
after  an  unregistered  deed,  seems 
to  have  proceeded  from  a  doubt 
whether  the  relief  given  in  the 
early  cases  upon  that  subject,  had 
not  been  in  opposition  to  the  spirit 
and  the  policy  as  well  as  the  letter 
of  the  statutes  of  registry.  The 
rule,  as  to  the  effect  of  a  lis  pen- 
dens, is  founded  upon  the  neces- 
sity of  such  a  rule  to  give  effect 
to  the  proceedings  of  courts  of 
justice.  Without  it,  the  adminis- 
tration of  justice  might,  in  all  cases, 
be  frustrated  by  successive  aliena- 
tions of  the  property,  which  was 
the  object  of  litigation  pending  the 
suit,  so  that  every  judgment  and 
decree  would  be  rendered  abortive 
where  the  recovery  of  specific  prop- 
erty was  the  object.  This  necessity 
is  so  obvious,  that  there  was  no  oc- 
casion to  resort  to  the  presump- 
tion that  the  purchaser  really  had, 
or  by  inquiry  might  have  had,  no- 
tice of  the  pendency  of  the  suit  to 
justify  the  existence  of  the  rule. 
In  fact,  it  applied  in  cases  in  which 
there  was  a  physical  impossibility 
that  the  purchaser  could  know, 
with  any  possible  diligence  on  his 
part,  of  the  existence  of  the  suit, 
unless  all  contracts  were  made  in 
the  office  from  which  the  writ  is- 
sued,  and  on  the   last  moment   of 


1440 


THE    LAW    OF    DEEDS. 


[chap.    XXIII. 


defendant  pendente  lite  will  be  bound  by  the  judgment  that 
may  be  recovered  in  the  ejectment  suit,  to  the  same  extent  as 
the  defendant.     Although  such  grantee  or  assignee  may  not 


the  day.     For  at  common  law  the 
writ    was    pending    from    the    first 
moment    of    the    day    on   which    it 
was    issued    and    bore    teste;    and 
a     purchaser     on     or     after     that 
day,   held   the   property   subject   to 
the    execution    upon    the   judgment 
in  that  suit  as  the  defendant  would 
have   held   it   if   no   alienation   had 
been  made.    The  court  of  chancery 
adopted  the  rule  in  analogy  to  the 
common  law;  but  relaxed  in  some 
degree  the  severity  of  the  common 
law.      For    no   lis   pendens   existed 
until    the    service    of    the    subpoena 
and  bill  filed;  but  it  existed  from 
the    service    of    the    subpoena,    al- 
though the  bill  was  not  filed  until 
long    after;    so    that    a    purchaser 
after  service  of  the  subpoena,   and 
before    the    bill    was    filed    would, 
after    the    filing    of     the    bill,    be 
deemed  to  be  a  lite  pendente  pur- 
chaser,  and   as   such  be   bound   by 
the    proceedings    in    the    suit,    al- 
though  the   subpoena   gave  him   no 
information    as    to    the    subject    of 
the    suit.      A    subpoena    might    be 
served   the   very   day   on    which    it 
was  sued  out,  and  there  is  an  in- 
stance  in   the   English   books   of   a 
purchaser    who    purchased    on    the 
day   that  the   subpoena   was   served 
without  actual  notice,  and  who  lost 
his  purchase  by  force  of  this  rule 
of    law.      This    principle,    however 
necessary,  was  harsh  in  its  effects 
upon  bona  fide  purchasers,  and  was 
confined  in  its  operation  to  the  ex- 
tent of  the  policy  on  which  it  was 
founded;  that  is,  to  the  giving  full 


effect  to  the  judgment  or  decree 
which  might  be  rendered  in  the  suit 
pending  at  the  time  of  the  pur- 
chase. As  a  proof  of  this,  if  the 
suit  was  not  prosecuted  with  ef- 
fect, as  if  a  suit  at  law  was  dis- 
continued, or  the  plaintiff  suffered 
a  nonsuit,  or  if  a  suit  in  chancery 
was  dismissed  for  want  of  prose- 
cution, or  for  any  other  cause  not 
upon  the  merits,  or  if  at  law  or  in 
chancery  a  suit  abated,  although  in 
all  these  cases  the  plaintiff  or  his 
proper  representative  might  bring 
a  new  suit  for  the  same  cause,  he 
must  make  the  one  who  purchased 
pending  the  former  suit  a  party; 
and  in  this  new  suit  such  purchas- 
er would  not  be  at  all  affected  by 
the  pendency  of  the  former  suit 
at  the  time  of  his  purchase.  In 
the  case  of  an  abatement,  however, 
the  original  suit  might  be  contin- 
ued in  chancery  by  revivor,  or  at 
law,  in  real  actions,  abated  by  the 
death  of  a  party,  by  journies  ac- 
counts, and  the  purchaser  still  be 
bound  by  the  final  judgment  or  de- 
cree. If  a  suit  be  brought  against 
the  heir  upon  the  obligation  of  his 
ancestor  binding  his  heirs,  and  he 
alienates  the  land  descended  pend- 
ing the  writ  upon  a  judgment  in 
that  suit,  the  lands  in  the  hands 
of  the  purchaser  would  be  liable 
to  be  extended  in  satisfaction  of 
the  debt.  But  if  that  suit  were 
discontinued,  abated,  or  the  plain- 
tiff suffered  a  nonsuit  in  a  new  ac- 
tion for  the  same  cause,  the  pur- 
chaser would  not  be  affected  by  the 


{ 


CHAP.    XXIII.]         THE  DOCTRINE  OF   NOTICE. 


1441 


be  made  a  party  to  the  suit,  he  may  be  ejected  under  the  judg- 
ment rendered  against  his  grantor  or  assignor.  If  this  were 
not  the  law,  the  defendant  could  compel  the  plaintiff  to  com- 
mence a  new  action  as  often  as  he  made  an  assignment.'  But 
the  judgment  binds  only  the  parties  and  their  privies.  One 
whose  possession  is  distinct  from  that  for  which  the  action  is 
brought,  cannot  be  ousted  by  an  execution  in  such  action." 
The  assignee,  when  subject  to  the  judgment,  is  liable   for 


pendency  of  the  former  suit  at  the 
time  of  his  purchase;  and  if  he 
could  be  reached  at  law,  in  equity 
it  could  only  be  upon  proof  of  ac- 
tual notice  and  fraud.  If  a  lis 
pendens  was  notice  then,  as  a  no- 
tice at  or  before  the  purchase 
would,  in  other  cases,  bind  the  pur- 
chaser in  any  suit  in  equity  prose- 
cuted at  any  time  thereafter  to 
assert  the  right  of  which  he  had 
notice,  so  ought  the  lis  pendens 
to  bind  him  in  any  subsequent  suit 
prosecuted  for  the  same  cause;  but 
it  does  not.  Again,  a  bill  of  dis- 
covery, or  to  perpetuate  the  tes- 
timony of  witnesses,  ought,  if  all 
persons  were  bound  to  take  no- 
tice of  what  is  going  on  in  courts 
of  justice,  to  be  a  notice  to  all  the 
world  as  much  as  a  bill  for  relief. 
But  these  are  decided  to  be  no  no- 
tice to  any  purpose ;  a  proof  that 
the  rule  as  to  the  effect  of  a  lis 
pendens  is  one  of  mere  policy,  con- 
fined in  its  operation  strictly  to 
the  purposes  for  which  it  was 
adopted;  that  is,  to  give  effect  to 
the  judgment  and  decrees  of  courts 
of  justice,  and  that  it  is  not  prop- 
erly a  notice  to  any  purpose  what- 
soever. The  English  judges  and 
elementary  writers  have  carelessly 
Deeds,  VoL  n.— 91 


called  it  a  notice,  because,  in  one 
single  case,  that  of  a  suit  prose- 
cuted to  decree  or  judgment,  it  had 
the  same  effect  upon  the  interests 
of  the  purchaser  as  a  notice  had, 
though  for  a  different  reason.  But 
the  courts  have  not  in  any  case 
given  it  the  real  force  and  effect 
of  a  notice." 

8  Howard  v.  Kennedy,  4  Ala.  592, 
39  Am.  Dec.  307;  Wallen  v.  Huff, 
3  Sneed,  82,  65  Am.  Dec.  49;  Jack- 
son V.  Tuttle,  9  Cowen,  233 ;  Hick- 
man V.  Dale,  7  Yerg.  149;  Jones  v. 
Chiles,  2  Dana,  25;  Smith  v.  Tra- 
bue,  1  McLean,  87.  A  person  en- 
tering or  acquiring  rights  in  prop- 
erty from  a  party  pending  litiga- 
tion holds  the  same  subject  to  the 
judgment:  Elizabethport  Cordage 
Co.  V.  Whittock,  37  Fla.  190,  20 
So.  255;  Equitable  Securities  Co. 
V.  Green,  113  Ga.  1013,  39  S.  E. 
434;  Hicks  v.  Porter,  (Tex.)  85 
S.  W.  437 ;  Hargrave  v.  Cherokee 
Nation,  129  Fed.  186,  63  C.  C.  A. 
276 ;  Henderson  v.  Wanamaker,  79 
Fed.  736,  25  C.  C.  A.  181. 

9  Howard  v.  Kennedy,  4  Ala.  592, 
39  Am.  Dec.  307;  Fogarty  v. 
Sparks,  22  Cal.  142.  See,  also, 
Chiles  V.   Stephens,    1   Marsh.  333. 


1442 


THE  LAW   OF  DEEDS. 


[CKAP.    XXIIL 


mesne  profits.*  Parties  who  have  acquired  their  rights  be- 
fore the  commencement  of  a  suit  are  not  affected  by  a  lis 
pendens.' 


§  796.  Diligence  in  prosecution  of  suit. — The  suit  in 
order  to  affect  a  grantee  with  notice,  must  be  prosecuted  with- 
out unnecessary  delay.  There  must  be  reasonable  diligence 
used  in  endeavoring  to  obtain  a  final  judgment.'  Where  for 
a  period  of  nearly  two  years  no  step  was  taken  in  a  case  or 
motion  made  indicating  an  intention  to  prosecute  the  suit,  and 
no  excuse  was  offered,  or  explanation  given  for  the  delay,  the 
court  considered  that  there  had  been  such  gross  and  culpable 
negligence  in  the  prosecution  of  the  suit  as  to  take  away  from 
the  plaintiff  the  privilege  of  claiming  the  benefit  of  a  notice  of 


1  Jackson  v.  Stone,  13  Johns.  447 ; 
Bradley  v.  McDaniel,  3  Jones,  128. 

2Houghwout  V.  Murphy,  22  N. 
J.  Eq.  545;  Chapman  v.  West,  17 
N.  Y.  125;  Hunt  v.  Haven,  52  N. 
H.  162;  Ensworth  v.  Lambert,  4 
Johns.  Ch.  605;  People  v.  Connel- 
ly, 8  Abb.  Pr.  128 ;  Hopkins  v.  Mc- 
Laren, 4  Cowen,  677;  Hall  v.  Nel- 
son, 23  Barb.  88;  Curtis  v.  Hitch- 
cock, 10  Paige,  399 ;  Parks  v.  Jack- 
son, 11  Wend.  442,  25  Am.  Dec. 
656.  But  see  Norton  v.  Birge,  35 
Conn.  250. 

8  Harrington  v.  McCollum,  73 
111.  476;  Gibler  v.  Trimble,  14  Ohio, 
323 ;  Edmeston  v.  Lyde,  1  Paige, 
637,  19  Am.  Dec.  454;  Murray  v. 
Ballou,  1  Johns.  Ch.  566;  Trimble 
V.  Boothby,  14  Ohio,  109,  45  Am 
Dec.  526;  Petree  v.  Bell,  2  Bush 
58;  Watson  v.  Wilson,  2  Dana,  406 
26  Am.  Dec.  459;  Erhman  v.  Ken 
drick,  1  Met.  (Ky.)  146;  Clarkson 
V.  Morgan,  6  B.  Mon.  441,  448 
Price  V.  McDonald,  1  Md.  403,  54 


Am.  Dec.  657;  Myrick  v.  Selden, 
36  Barb.  15,  22;  Preston  t.  Tub- 
bin,  1  Vern.  286;  Bridger  v.  Ex- 
change Bank,  126  Ga.  821,  56  S.  E. 
97.  And  see  Ashley  v.  Cunning- 
ham, 16  Ark.  168;  Debell  v.  Fox- 
worthy,  9  B.  Mon.  228;  Mann  v. 
Roberts,  11  Lea,  (Tenn.)  57;  Tins- 
ley  V.  Rice,  105  Ga.  285,  31  S.  E. 
174;  Kelley  v.  Culver,  116  Ky.  241, 
75  S.  W.  272;  Woodward  v.  John- 
son, 122  Ky.  160,  90  S.  W.  1076; 
Boice  V.  Conover,  (1905),  69  N. 
J.  Eq.  580,  61  Atl.  159.  Laches  of 
thirty  years  held  fatal :  Woodward 
V.  Johnson,  122  Ky.  160,  90  S.  W. 
1076.  Conduct  showing  abandon- 
ment is  fatal:  Wells  v.  Goss,  110 
La.  347,  34  So.  470.  Likewise  dis- 
missal: Allison  V.  Drake,  145  111. 
500,  52  N.  E.  537;  Bristow  v. 
Thackston,  187  Mo.  332,  86  S.  W. 
94,  106  Am.  St.  Rep.  472;  McVay 
V.  Lousley,  20  S.  D.  258,  105  N.  W. 
932. 


CHAP.    XXIII.]  THE   DOCTRINE   OF    NOTICE.  1443 

lis  pendens}  "To  entitle  him  to  enforce  it  against  hona  Ude 
purchasers,  he  has  been  held  to  reasonable  diligence  in  the 
prosecution  of  his  suit,  and  should  be  guilty  of  no  palpable 
slips  or  gross  irregularities  in  the  management  of  the  same, 
by  which  injury  may  accrue  to  the  rights  of  others  who  are 
not  parties." '  And  where  a  suit  has  been  commenced  in  the 
name  of  persons  who  have  no  interest,  for  which  reason  the 
suit  might  properly  have  been  dismissed,  and  afterward  the 
names  of  those  who  have  an  interest  are  introduced,  there  has 
been  such  a  slip,  it  is  held  in  Kentucky,  that  the  principle  of 
lis  pendens  cannot  be  applied  to  intermediate  purchasers.^ 

§  797.  Continued. — But  in  Iowa,  where  a  suit  was 
brought  to  enforce  the  specific  performance  of  a  contract  for 
the  conveyance  of  land,  and  a  person  bought  the  land  during 
the  pendency  of  the  suit,  and  subsequently  the  bill  on  appeal 
being  ordered  to  be  dismissed  with  leave  to  the  plaintiff  to 
file  a  bill  de  novo,  the  plaintiff  filed  a  new  bill,  making  the 
purchaser  a  party,  it  was  held  that  the  purchaser  took  with 
notice  of  the  lis  pendens.  The  court  said  that  if  the  grantee 
had  purchased  between  the  time  the  first  suit  terminated  and 
the  second  commenced,  it  might  be  doubted  whether  he  would 
be  a  purchaser  with  notice,  but  that  under  the  circumstances,  he 
could  occupy  no  better  position  than  if  the  first  decree  had  been 
affirmed,  instead  of  reversed  on  appeal.''^  And  in  Illinois,  the 
point  is  directly  decided  that  where  a  suit  is  dismissed  and 
afterward  reinstated,  the  doctrine  of  lis  pendens  has  no  appli- 
cation to  a  person  purchasing  after  the  dismissal,  and  before 
the  revival  of  the  suit.'  It  is  held,  however,  in  one  case,  that 
it  is  not  necessary  that  the  suit  should  be  prosecuted  with  even 
ordinary  diligence  to  enable  a  party  to  maintain  the  benefit 

*  Petree  v.  Bell,  2  Bush,  58.  See,  also,  Bishop  of  Winchester  v. 

8  Clarkson  v.  Morgan,  6  B.  Men.  Paine,   11  Ves.  Jr.  200. 

441,  448.  8  Herrington  v.  McCollum,  ^Z  IlL 

^  Clarkson  v.  Morgan,  supra.  A77. 
'  Ferrier  v.  Buzick,  6  Iowa,  25& 


1444  THE  LAW   OF  DEEDS.  [CHAP.    XXIII. 

of  a  lis  pendens;  tliat  such  benefit  can  be  terminated  only  by 
unreasonable  and  unusual  negligence  in  the  prosecution  of  the 
suit.' 

§  798.  Reasonable  excuse. — Whether  there  has  been 
unreasonable  delay  in  any  particular  case  must  of  necessity  de- 
pend upon  the  circumstances  of  that  case.  As  will  be  more 
particularly  noticed  in  the  following  section  the  law  of  lis 
pendens,  binding  purchasers  who  have  no  actual  knowledge  of 
the  suit,  is  considered  a  rigorous  one,  and  in  order  that  the 
plaintiff  may  retain  the  benefit  he  has  secured,  he  must  prose- 
cute his  suit  with  diligence  or  explain  the  cause  for  the  delay. 
But  while  the  delay  may  of  itself  be  long,  and  apparently  un- 
pardonable, still,  if  the  plaintiff  can  present  a  reasonable  excuse 
for  it,  the  court  must  enforce  the  rule  that  the  notice  of  lis 
pendens  has  continued  during  the  whole  of  the  time.*  So  it 
has  been  held  that  failure  to  prosecute  a  suit  between  the  years 
1866  and  1870  is,  in  view  of  the  disturbed  condition  then  ex- 
isting in  the  country,  not  such  negligence  as  to  destroy  the 
force  of  a  pending  suit.^ 

§  799.  Rule  of  lis  pendens  not  favored. — It  is  said  that 
the  doctrine  of  lis  pendens  "has  ever  been  regarded  as  a  harsh 
and  rigorous  rule  in  its  operation  upon  the  rights  of  bona  Ude 
purchasers.  The  rule  was  dictated  by  necessity  as  indispensa- 
ble to  the  rights  of  litigants,  and  as  the  means  of  terminating 
litigation  about  the  matter  in  contest.  But  being  a  hard  rule 
and  operating  with  great  severity  in  many  instances  upon  the 
rights  of  innocent  purchasers,  it  should  never  be  carried  in 
favor  of  a  complainant  asking  its  enforcement  beyond  the 
purpose  and  reason  of  its  creation."  ^     And  again  it  is  said : 

'Gossom  V.  Donaldson,  18  Mon.  St.  Rep.  233;  Jones  v.  Robb,  (Tex.) 

B.  230,  68  Am.  Dec.  723.  80  S.  W.  395. 

iWickliffe     V.     Breckenridge,     1  2  jones  v.  Robb,  (Tex.)  80  S.  W. 

Bush,  443.     See,  also,  Norris  v.  He,  395. 

152  111.  190,  38  N.  E.  762,  43  Am.  »  Clarkson  v.  Morgan,  6  Mon.  B. 


CHAP.    XXIir.]         THE   DOCTRINE   OF    NOTICE.  1445 

"This  rule  adopted  by  courts  of  equity  from  necessity,  and 
in  imitation  of  the  common  law,  that  when  the  defendant  in 
a  real  action  aliens  after  suit  brought,  the  judgment  in  such 
real  action  will  overreach  such  alienation,  is  yet  considered 
as  against  a  real  and  fair  purchaser  without  actual  notice  as  a 
hard  rule,  and  courts  gladly  avail  themselves  of  any  defect  in 
the  pleadings  or  proofs  of  the  plaintiff  to  prevent  its  opera- 
tion upon  such  a  purchaser."  * 

§  800.     Effect  of  lis  pendens  on  attorney's  lien  for  fees. 

— Where  attorneys  have  a  lien  upon  property  recovered 
or  protected  by  their  services,  which  the  court  may  declare  to 
be  such  in  the  cause  in  which  such  services  are  rendered,  the 
client  has  no  power,  during  the  pendency  of  the  suit,  to  make 
such  a  disposition  of  the  subject  matter  of  the  suit  as  will  de~ 
prive  the  attorney  of  his  lien,  nor  to  transfer  the  property  sub- 
sequently to  any  purchaser  with  notice.^  In  the  case  cited, 
Nelson,  J.,  speaking  for  the  court,  said  that  "while  it  is  the 
duty  of  the  courts  to  protect  clients  against  all  unfair  advan- 
tages on  the  part  of  their  counsel,  it  is  a  duty  of  equal  obliga- 
tion to  shield  the  attorney,  so  far  as  practicable,  against  the 
bad  faith  and  ingratitude  of  clients.  The  lien  of  a  vendor 
of  land  is  enforced  in  equity  against  the  vendee,  although  no 
reservation  of  a  lien  is  contained  in  a  deed.  His  equity  grows 
out  of  the  transaction,  and  we  hold  that  an  attorney  is  entitled 
to  an  equitable  lien  on  the  property  or  thing  in  litigation  for 
his  just  and  reasonable  fees,  and  that  the  client  cannot,  while 
the  suit  is  pending,  so  dispose  of  the  subject-matter  in  suit  as 
to  deprive  the  attorney  of  his  lien,  nor  afterward  to  any  pur- 
chaser with  notice.    The  pendency  of  the  suit  is  of  itself  notice 

441,  448,  per  Ewing,  C.  J.  See,  also,  *  Ludlow's  Heirs  v.  Kidd,  3  Ohio, 

Arrington  v.  Arrington,  114  N.  C  541,  543,  per  Sherman,  J.    See,  also, 

151.  19  S.  E.  351;  Clarkson  v.  Mor-  Hayden    v.    Bucklin,   9    Paige,    511. 

gan,   (Ky.)   6  B.  Mon.  441;  Leitch  ^  Hunt  v.   McClanahan.  1  Heisk. 

V.  Wells,  48  N.  Y.  585.  503. 


1446 


THE  LAW   OF  DEEDS. 


[chap,  xxiil 


to  all  persons,  and  the  lien  may  be  preserved  and  the  notice 
extended,  by  stating  its  existence  in  the  judgment  or  decree." 


§  801.  Suit  must  affect  specific  property. — It  is  not 
sufficient  to  create  a  lis  pendens  as  the  term  is  understood  when 
speaking  of  its  effect  as  notice,  that  the  suit  may  ultimately 
affect  all  or  some  particular  portion  of  the  real  estate  of  the 
defendant.  The  property  must  be  specified  in  the  proceedings 
and  as  to  this  property  all  persons  are  charged  with  notice  of 
the  pending  litigation  affecting  it.  The  doctrine  of  lis  pendens 
has  no  application  to  a  suit  for  a  divorce  and  alimony,  as  such 
a  suit  does  not  relate  to  any  particular  piece  of  property.®  In 
one  case  the  court,  while  deciding  that  the  law  of  lis  pendens 
did  not  apply  in  a  suit  for  divorce,  intimated,  however,  that  if 
the  prayer  of  the  petition  had  been  to  have  alimony  assigned 
out  of  a  particular  tract  of  land,  the  case  would  have  had  some 
resemblance  to  those  in  which  the  rule  of  lis  pendens  had  been 
applied.'     So  a  suit  for  a  sum  of  money  which  may  be  satis- 


\ 


^  Feigley  v.  Feigley,  7  Md.  537, 
563,  61  Am.  Dec.  375;  Hamlin  v, 
Bevans,  7  Ohio,  161,  28  Am.  Dec. 
625;  Briglitman  v.  Brightman,  1 
R.  I.  112.  In  the  case  first  cited, 
the  court  said :  "As  well  might  a 
pending  action  at  law  to  recover 
an  ordinary  debt  be  a  lis  pendens 
as  to  the  property  of  a  debtor,  as 
a  proceeding  like  the  present,  the 
purpose  of  each  being  to  subject 
the  property  of  the  debtor  to  the 
payment  of  debts.  Lis  pendens  is  a 
proceeding  relating  to  the  thing  or 
property  in  question."  The  doc- 
trine of  lis  pendens  has  no  appli- 
cation where  the  object  of  the  ac- 
tion is  merely  to  recover  a  money 
judgment:  Carson  v.  Fears,  91  Ga. 
482,  17  S.  E.  342;  Armstrong  v. 
Carwile,  56  S.  C  463,  35  S.  E.  196. 


'  Brightman  v.  Brightman,  1  R. 
I.  112.  And  see  Daniel  v.  Hodges, 
87  N.  C  95.  In  the  former  case, 
the  court  said :  "But  the  rule  only 
relates  to  suits  involving  the  title 
to  property,  and  is  not  to  be  ex- 
tended beyond  the  property  in- 
volved in  the  suit :  1  McCord  Ch. 
264.  The  suit  must  relate  to  the 
estate,  and  not  to  anything  collat- 
eral, such  as  money  secured  on  it: 
3  Atk.  392.  The  rule  applies  where 
a  third  person  attempts  to  intrude 
into  a  controversy  by  acquiring  an 
interest  in  the  matter  in  dispute 
pending  suit:  4  Cowen,  667,  2 
Johns.  Ch.  445.  We  do  not  appre- 
hend that  the  rule  of  lis  pendens 
is  applicable  to  this  case.  The  pray- 
er of  the  complainant's  petition  was 
for    divorce    and    for   alimony   out 


CHAP,    XXIII.]         THE   DOCTRINE   OF    NOTICE. 


1447 


fied  by  a  sale  of  real  estate,  if  not  satisfied  in  some  other  mode, 
cannot  be  regarded  as  lis  pendens  so  as  to  affect  the  title  to 
the  real  estate  of  the  defendant.' 


§  802.  When  lis  pendens  commences. — The  com- 
mencement of  a  lis  pendens  dates  from  the  service  of  the  sub- 
poena or  other  process  giving  the  court  jurisdiction.^     If  a 


of  her  husband's  estate.  It  did  not 
affect  the  title  to  his  real  estate, 
or  necessarily  seek  to  put  any  en- 
cumbrance on  it.  Alimony  is  to  be 
granted  out  of  the  personal  or  real 
estate,  and  is  not  necessarily  a 
charge  on  either.  Had  the  prayer 
in  this  case  been  for  alimony  to  be 
assigned  her  out  of  this  particular 
farm,  the  case  would  have  some- 
what resembled  some  of  the  cases 
in  the  books  where  the  rule  has 
been  applied.  But  it  is  not  so;  it 
is  general  for  alimony  out  of  his 
estate.  If  such  a  prayer  locks  up 
the  real,  it  equally  does  the  per- 
sonal, estate  of  a  respondent  to 
such  a  petition,  and  each  and  every 
part  of  it.  The  instant  such  a  pe- 
tition is  filed,  the  respondent's  busi- 
ness, however  extensive  it  may  be, 
must  stop.  Purchasers  and  dealers 
with  him,  by  the  policy  of  the  law, 
are  bound  by  the  decree  for  ali- 
mony that  may  be  passed,  although 
they  do  not  even  know  that  they 
are  dealing  with  a  married  man. 
Alimony  will  be  claimed,  and  must 
be  allowed  to  attach  to  any  and 
every  part  of  the  personal  property 
that  the  husband  had  at  the  filing 
of  the  petition.  We  do  not  think 
this  case  falls  within  the  rule  of 
lis  pendens,  nor  within  the  reason 
of  that  rule."  And  see,  also,  Gard- 
ner V.  Peckham,  13  R.  L  102. 


8  St.  Joseph  Mfg.  Co.  v.  Daggett, 
84  111.  556.  See,  also.  White  v. 
Perry,  14  W.  Va.  66;  Ray  v.  Roe, 
2  Blackf.  258,  18  Am.  Dec.  159; 
Low  V.  Pratt,  53  111.  438;  Lewis  v. 
Mew,  1  Strob.  Eq.  180;  Miller  v. 
Sherry,  2  Wall.  237,  17  L.  ed.  827 ; 
Jones  V.  McNarrin,  68  Me.  334,  28 
Am.  Rep.  66;  Green  v.  Slayter, 
4  Johns.  Ch.  39;  Worsley  v.  Earl 
of  Scarborough,  3  Atk.  392.  And 
see  Lockwood  v.  Bates,  1  Del.  Ch. 
435,  12  Am.  Dec.  121;  Center  v. 
P.  &  M.  Bank,  22  Ala.  743.  See, 
also  in  this  connection :  Greenwood 
v.  Warren,  120  Ala.  71,  23  So.  686; 
Zoeller  v.  Riley,  100  N.  Y.  102,  2 
N.  E.  388,  53  Am.  Rep.  157;  Mo- 
ragne  v.  Doe,  143  Ala.  459,  39  So. 
161,  111  Am.  St.  Rep.  52. 

9  Williamson  v.  Williams,  11  Lea 
(Tenn.)  355;  Haughwout  v.  Mur- 
phy, 22  N.  J.  Eq.  545;  Allen  v. 
Poole,  54  Miss.  323;  Murray  v. 
Blatchford,  1  Wend.  583,  19  Am. 
Dec.  537;  Majors  v.  Cowell,  51  Cal. 
478;  Leitch  v.  Wells,  48  N.  Y.  585; 
Allen  v.  Mandaville,  26  Miss.  397; 
Edwards  v.  Banksmith,  35  Ga.  213 ; 
Hayden  v.  Bucklin,  9  Paige,  512; 
Butler  v.  Tomlinson,  38  Barb.  641 ; 
Jackson  v.  Dickenson,  15  Johns. 
309,  8  Am.  Dec.  236;  Center  v.  The 
Bank,  22  Ala.  743;  Farmers'  Nat. 
Bank  v.  Fletcher,  44  Iowa,  252; 
Herrington  v.   Herrington,  27  Mo. 


1448 


THE  LAW  OF  DEEDS. 


[CITAP.    XXIII. 


defective  subpoena  is  served  after  the  filing  of  a  bill  to  fore- 
close a  mortgage,  and,  by  stipulation,  the  service  of  the  sub- 
poena and  all  subsequent  proceedings  are  set  aside,  the  com- 
plainant being  permitted  to  amend  the  subpoena  so  as  to  date 
it  of  the  day  the  stipulation  was  made,  the  commencement  of 
the  suit  is  deemed  to  be  at  the  time  of  the  service  of  such 
amended  subpoena.^  Where  a  service  is  made  by  publication, 
the  service  is  complete  after  regular  publication.^  "It  is  neces- 
sary to  adopt  some  analogous  rule  in  those  cases,  where  the 
law  provides  a  different  manner  of  notice.  Whenever  the  act 
is  done,  by  which  the  defendant  is  submitted  to  the  jurisdiction 
of  the  court,  it  is  a  service  of  process,  and  the  suit  is  com- 
menced." '  A  lis  pendens  does  not  exist  where  service  of  a 
subpoena  is  accepted  as  of  a  prior  date  so  as  to  bind  a  person 
purchasing  before  the  time  of  such  acceptance.*  The  lis  pen- 
dens is  notice  of  all  pertinent  facts  stated  in  the  pleadings.^ 
But  where  an  amendment  is  made,  the  notice  dates  from  the 
time  of  the  amendment.^  A  lis  pendens  does  not  exist  as  to 
facts  not  within  the  purpose  of  the  suit.'' 


560;  Powell  v.  Wright,  7  Beav. 
444;  Scott  v.  McMillan,  1  Litt.  302, 
13  Am.  Dec.  239;  Campbell's  case, 
2  Bland,  209,  20  Am.  Dec.  360; 
Murray  v.  BaUou,  1  Johns.  Ch.  566, 
576.  And  see  Miller  v.  Sherry,  2 
Wall.  237,  17  L.  ed.  827;  Wickliffe 
V.  Breckenridge,  1  Bush,  443;  New 
man  v.  Chapman,  2  Rand.  93,  14 
Am.  Dec.  766;  Goodwin  v.  Mc- 
Gehee,  IS  Ala.  232;  Waring  v. 
Waring,  7  Abb.   Pr.  472. 

1  Allen  V.  Case,  13  Wis.  621. 

2  Chaudron  v.  Magee,  8  Ala.  570 ; 
Hayden  v.  Bucklin,  9  Paige,  511. 

'  Bennet's  Lessee  v.  Williams,  5 
Ohio,  461,  463.  See  Carter  v.  Mills, 
30  Mo.  432;  Clevinger  v.  Hill,  4 
Bibb,  49a 


*  Miller  v.  Kershaw,  1  Bail.  Eq. 
479,  23  Am.   Dec.   183. 

6  Jones  V.  McNarrin,  68  Me.  334, 
28  Am.  Rep.  66;  Center  v.  P.  &  M. 
Bank,  22  Ala.  743;  Lockwood  v. 
Bates,  1  Del.  Ch.  435,  12  Am.  Dec. 
121. 

6  Jones  V.  Lusk,  2  Met.  (Ky.) 
356;  Stone  v.  Connelly,  1  Met 
(Ky.)  654,  71  Am.  Dec.  499;  Clark- 
son  V.  Morgan,  6  Mon.  B.  441.  But 
see  Stoddard  v.  Myers,  8  Ohio,  203, 
10  Ohio  St.  365  . 

■^  Bellamy  v.  Sabine,  1  De  Gex 
&  J.  566;  Tyler  v.  Thomas,  25  Beav. 
47.  See  Stuyvesant  v.  Hall,  2 
Barb.  Ch.  151.  See,  also,  Taylor 
V.  Boyd,  3  Ohio,  338,  17  Am.  Dec. 
603;  McCormick  v.  McClure,  6 
Blackf.  466,  39  Am.  Dec.  441 ;  Lud- 


CHAP,    XXIII.]         THE   DOCTRINE   OF   NOTICE.  1449 

§  803.  Statutory  lis  pendens. — In  England,  and  in 
most  if  not  all  of  the  several  States,  statutes  have  been  passed 
requiring  notices  to  be  filed  so  as  to  affect  purchasers  v^ith 
notice.  These  statutes  differ  in  their  details,  some  requiring 
more  particulars  to  be  stated  than  others  but  the  common  ob- 
ject of  all  is  to  abate  the  rigor  of  the  technical  rule  of  lis 
pendens  and  provide  a  safe  and  effective  mode  of  giving  no- 
tice.' The  effect  of  a  lis  pendens  cannot  be  nullified  by  the 
fact  that  it  has  been  lost  from  the  files  or  has  not  been  prop- 
erly entered,  through  no  fault  of  the  party.*  And  this  is  true, 
although  the  party  whom  it  is  souglit  to  bind  may  never  have 
actually  seen  it.^ 

§  804.  Effect  of  the  statutes. — Under  these  statutes, 
a  purchaser  is  not  affected  by  a  lis  pendens  unless  notice  has 
been  given  in  the  manner  directed  by  statute.  "The  general 
rule  is,  that  one  not  a  party  to  a  suit  is  not  affected  by  the 
judgment;  the  exception  at  common  law^  is,  that  a  pendente 

low  V.   Kidd,  3  Ohio,  541 ;   Clarey  Sheridan  v.  Andrews,  49  N.  Y.  478 

V.  Marshall,  4  Dana,  95;  Debell  v.  Mitchell   v.    Smith,   53    N.   Y.  413 

Foxworthy,  9   Mon.   B.   228;    Gore  Brown  v.  Goodwin,  75  N.  Y.  409 

V.   Stakpole,    1   Dow,   31;    Earle   v.  Ayrault  v.   Murphy,  54  N.  Y.  203 

Couch,  3  Met.    (Ky.)    450.  Page    v.    Waring,    76    N.    Y.    463 

8  See  in  England,  2  Vict.  C.  1157.  Fuller  v.    Scribner,   76   N.   Y.    190 

It  is  not  deemed  necessary  to  ap-  Majors    v.    Cowell,    51    Cal.    478 

pend   an   abstract   or   refer   to   the  Dresser    v.    Wood,    15    Kan.    344 

statutes  of  the  different  States,  as  Leitch    v.    Wells,    48    Barb.    637 

the  subject  is  connected  with  prac-  White  v.  Perry,  14  W.  Va.  66;  Jaf- 

tice  with  which  each  attorney  is  fa-  fray  v.  Brown,  17  Hun,  575;  May- 

miliar.    But  reference  may  be  made  berry  v.  Morris,  62  Ala.  113;  Tred- 

to   the   following  cases    relating  to  way    v.    McDonald,    51    Iowa,    663. 

the    statutory   lis   pendens:    Abadie  The  statutes  of  a  State  relating  to 

V.   Lobero,   36   Cal.    390;    Richard-  lis  pendens,  it  is  held,  does  not  ap- 

son  V.  White,  18  Cal.  102;  Ault  v.  ply  to  suitors  except  in  the  State 

Gassaway,    18    Cal.    205;    Farmers'  courts:   Majors  v.   Cowell,  51   Cal. 

Nat.    Bank    v.    Fletcher,    44    Iowa,  478. 

252;    Drake   v.    Crowell,   40   N.    J.  » Heim  v.   Ellis,  49   Mich.  241. 

L.  58;  Mills  v.  Bliss,  55  N.  Y.  139;  1  Heim  v.   Ellis,  supra. 
Todd    V.    Outlaw,    79    N.    C.    235; 


1450  THE  LAW   OF  DEEDS.  [CIIAP.    XXIII. 

lite  purchaser,  though  not  a  party  was  so  affected ;  the  qualifi- 
cation of  the  doctrine  made  by  our  statute  is,  that  such  pur- 
chaser is  not  affected  unless  notice  of  such  lis  pendens  be  filed 
with  the  recorder.  .  .  .  The  common-law  doctrine  of  lis 
pendens  rests  upon  the  fiction  of  notice  to  all  persons  of  the 
pendency  of  suits,  and  to  remedy  the  evils  which  might  grow 
out  of  the  transfer  of  apparent  legal  titles  or  rights  of  action 
to  persons  ignorant  of  litigation  respecting  them,  this  pro- 
vision was  inserted  in  our  statute.  .  .  .  We  consider  our 
statute,  not  as  giving  new  rights  to  the  plaintiff,  but  as  a  limi- 
tation upon  the  rights  which  he  had  before.  If  no  lis  pendens 
be  filed,  the  party  acquiring  an  interest  or  claim  pendente  lite 
stands  wholly  unaffected  by  the  suit.  If  he  has  any  rights 
which  but  for  the  suit,  he  could  set  up,  he  may  still  maintain 
those  rights.  But  he  would  not  be  foreclosed  by  a  judgment 
against  the  party  to  the  suit  from  whom  he  obtained  his  as- 
signment. The  object  of  the  statute  evidently  v/as  to  add  to 
the  common-law  rule  a  single  term,  to  wit,  to  require  for  con- 
structive notice  not  only  a  suit,  but  filing  a  notice  of  it,  so  that 
this  rule  is  as  if  it  read:  'The  commencement  of  a  suit  and 
the  filing  of  a  notice  of  it  are  constructive  notice  to  all  the 
world  of  the  action,  and  purchasers  or  assignees,  afterward 
becoming  such,  are  mere  volunteers  and  bound  by  the  judg- 
ment." *  It  is  held  in  one  case  that  a  notice  of  lis  pendens  is 
not  affected  by  the  fact  that  it  was  filed  several  days  before  the 
commencement  of  the  suit.^  But  this  is  denied ;  and  it  is  also 
held  that  where  no  bill  has  been  filed,  a  lis  pendens  filed  is  a 
nullity  as  constructive  notice,*  or  is  inoperative.^ 

§  805.     Actual  notice. — As  the  object  of  these  statutes 
is  to  provide  a  mode  for  giving  the  constructive  notice  which 

8  Richardson    v.    White,    18    Cal.  <  Walker  v.  Hill's  Executors,  22 

102,  106,  per  Baldwin,  J.    See  Head  N.  J.  Eq.  514.  See  Weeks  v.  Tomes, 

V.  Fordyce,  17  Cal.  149.  16  Hun,  349. 

3  Houghton  V.  Mariner,  7  Wis.  ^  Sherman  v.  Bemis,  58  Wis.  343. 
244. 


CHAP.    XXIII.]         THE   DOCTRINE  OF   NOTICE.  1451 

formerly  was  given  by  the  commencement  of  the  suit  itself, 
and  to  prevent  a  party  from  claiming  that  a  subsequent  pur- 
chaser is  affected  with  constructive  notice  unless  the  require- 
ments of  the  statute  have  been  complied  with,  it  is  evident  that 
a  subsequent  purchaser  who  has  actual  notice  cannot  object 
if  the  statutory  notice  has  not  been  filed,  the  filing  of  which 
was  intended  only  to  give  him  the  notice  which  he  already  had 
or  afterward  acquired.  In  other  words,  a  purchaser  having 
actual  notice  of  the  pendency  of  the  suit  is  not  protected  by 
the  statute.^ 

8  Baker  v.  Pierson,  S  Mich.  456;  of    Commerce,    19    Colo.    App.    57, 

Sampson   v.   Ohleyer,  22  Cal.  200;  74  Pac.  536;  Richards  v.  Cline,  176 

Abadie  v.  Lobero,  36  Cal.  390.    See,  III.  431,  52  N.  E.  907 ;   Parrotte  v. 

also,  Daggs  v.  Wilson,  6  Ariz.  388,  Dryden,   73   Neb.   291,    102   N.   W. 

59  Pac.   150;  Hibernia  etc.   Soc.  v-  610;   Varnum  v.  Bolton   Shoe   Co., 

Lewis,   117  Cal.  577,  47  Pac.  602,  171  N.  Y.  658,  63  N.  E.  1123;  King 

49  Pac  714;  Powell  v.  Nat  Bank  v.  Davis,  137  Fed.  222. 


CHAPTER  XXIV. 


CONSIDERATION. 


806.  Kinds  of  consideration. 

807.  Support. 

807a.  Grantor's  right  of  rescis- 
sion passing  to  heirs  or 
personal    representatives. 

808.  Marriage. 

808a.  Estoppel  from  representa- 
tions in  marriage  negoti- 
ations. 

808b.  Parol  evidence  showing 
marriage  to  be  considera- 
tion. 

808c,  Grantor's  intention  to  de- 
fraud creditors  where 
deed  is  made  in  consid- 
eration of  marriage. 

809.  Other    valuable    considera- 

tions. 

810.  Deeds  of  bargain  and  sale 

and    covenants    to    stand 
seised. 

811.  Consideration      of      paying 

grantor's  debts. 

812.  Trust    to    distribute    estate 

according  to  will. 

813.  Valuable    consideration    as 

protection     to    bona    fide 
purchasers. 

814.  Adequacy    of    consideration 

and  failure  of  considera- 
tion. 

815.  Antecedent    debts    as    con- 

sideration. 


§  816.    The  other  view. 

817.  Presumption       that       deed 

states    true   consideration. 

818.  Presumption      as      against 

strangers — Conflict  in  the 
decisions— Comments. 

819.  Decisions  that  the  rule  ap- 

plies to  strangers. 

820.  Decisions  that  the  rule  does 

not  apply  to  strangers. 

821.  Comments. 

822.  Proof  of  real  consideration. 

823.  Action  for  purchase  price. 

824.  Quantity  of  land  conveyed. 

825.  Parol    promise    of    grantee 

to  convey  other  land. 

826.  Verbal   promise. 

827.  Vesting  of  title. 

828.  Retention  of  purchase  mon- 
ey by  grantee. 

829.  Whether  a  gift   or   an  ad- 

vancement. 

830.  Reason  for  the  rule  admit- 

ting parol  evidence  as  to 
consideration. 

831.  Parol  agreement  to  execute 

devise. 

832.  Community  property. 

833.  In     North     Carolina,     ac- 

knowledgment   is    release. 

834.  Showing    absence    of    con- 

sideration to  defeat  deed. 


§  806.     Kinds   of   consideration.— By    the    elementary 
writers,  considerations  are  divided  into  two  kinds,  good  and 

1452 


CHAP.    XXIV.] 


CONSIDERATION. 


145^ 


valuable.  "Good  considerations  are  those  of  blood,  natural 
love,  and  affection,  and  the  like."  "Valuable  considerations 
those  which  confer  some  benefit  upon  the  party  by  whom  the 
promise  is  made,  or  upon  a  third  party  at  his  instance  or  re- 
quest; or  some  detriment  sustained  at  the  instance  of  the  party 
promising,  by  the  party  in  whose  favor  the  promise  is  made."  ^ 
The  natural  affection  arising  from  the  relationship  existing 
between  a  grandfather  and  a  grandchild  is  held  to  be  a  good 
consideration  for  a  deed.^  So  natural  love  and  affection  is 
regarded  as  good  consideration  for  a  deed.'     And  a  volun- 


^  Bouv.  Law  Diet.,  tit.  Consider- 
ation. 

2  Hanson  v.  Buckner's  Executor, 
4  Dana,  251,  29  Am.  Dec.  401 ;  Sto- 
vall  V.  Barnett,  4  Litt.  207.  But  it 
is  held  otherwise  in  Borum  v. 
King's  Administrator,  37  Ala.  606. 
See  for  other  examples  of  good 
considerations,  Stafford  v.  Stafford, 
41  Tex.  Ill;  Wallis  v.  Wallis,  4 
Mass.  135,  3  Am.  Dec.  210;  Bell 
V.  Scammon,  IS  N.  H.  381,  41  Am. 
Dec.  706.  But  a  covenant  to  stand 
seised  to  uses  on  the  part  of  a 
father,  cannot  be  supported  by  the 
consideration  of  love  and  affection 
to  an  illcjitimate  child:  Blount  v. 
Blount,  2  Law  Repos.  (N.  C.)  587; 
Repos.  &  Taylor's  Term,  Law  & 
Eq.  (N.  C),  389.  And  see  Ivey 
v.  Cranberry,  66  N.  C.  224.  A 
deed  executed  by  a  father  to  his 
daughter,  in  consideration  of  one 
dollar,  actually  paid,  and  natural 
love  and  affection,  is  not  a  volun- 
tary conveyance,  so  as  to  prevent 
the  grantee  from  enforcing  her 
rights  under  it  in  equity  against 
the  grantor  and  his  heirs,  when  she 
has  taken  possession  and  made 
large  and  expensive  improvements : 
Appeal    of    Ferguson,    117    Pa.    St. 


426.  Between  the  parties,  consid- 
eration is  not  necessary  to  sup- 
port a  deed :  See  Brown  v.  Brown, 
44  S.  C.  378,  22  S.  E.  412;  Dris- 
coll  V.  Driscoll,  143  Cal.  528,  11 
Pac.  471 ;  Bernardy  v.  Mortgage 
Co.,  17  S.  D.  637,  98  N.  W.  166. 
But  the  rule  does  not  apply  as  to 
creditors  or  prior  grantees.  See 
Howard  v.  Turner,  125  N.  C.  107, 
34  S.  E.  229;  Stephenson  v.  Deuel, 
125  Cal.  656,  58  Pac  258. 

8  Springer  v.  Springer,  (Cal.)  64 
Pac.  470;  St.  Clair  v.  Marquell, 
161  Ind.  56,  67  N.  E.  693;  Mc- 
Kee  v.  West,  141  Ala.  531,  11  So. 
740,  109  Am.  St.  Rep.  54;  Pierce 
V.  Bemis,  120  Ga.  536,  48  S.  E. 
128;  Doan  v.  Hostetler,  215  111. 
635,  74  N.  E.  767;  Burrow  v.  Hicks, 
(la.)  120  N.  Y.  727;  Rittenhouse 
V.  Swango,  (Ky.)  97  S.  W.  743; 
Couch  V.  Schwalbe,  51  Tex.  Civ. 
App.  94,  111  S.  W.  1047;  Robert- 
son v.  Hefley,  (Tex.)  118  S.  W. 
1159;  Marsh  v.  Marsh,  32  Wash. 
623,  73  Pac.  676;  Paulus  v.  Reed, 
121  la.  224,  96  N.  W.  757;  Parker 
V.  Stephens,  (Tex.)  39  S.  W.  164. 
And  see  Mullins  v.  MuUins,  120 
Ky.  643,  87  S.  W.  764;  Studybaker 
V.  Cofield,  159  Mo.  596,  61  S.  W. 


1454 


THE  LAW  OF  DEEDS. 


[chap.    XXIV. 


tary  conveyance  of  property,  completely  executed,  is  valid  as 
between  the  parties.  The  rights  of  creditors  in  such  case, 
however,  are  protected  by  the  courts.* 

§  807.  Support. — It  was  held  in  one  case  that  where 
the  only  consideration  expressed  in  a  deed  of  bargain  and  sale 
was,  that  the  grantee  should  support  the  grantor  for  his  nat- 
ural life,  the  deed  was  without  consideration  and  void,  be- 


246.  Ill  McKee  v.  West,  supra, 
the  court  says :  "It  is  not  to  be 
questioned  that  a  voluntary  con- 
veyance— that  is,  one  founded  upon 
the  consideration  of  love  and  af- 
fection— is  valid  between  the  par- 
ties. When  the  grantor,  at  the  time 
of  its  execution  is  indebted,  the 
law  stamps  such  conveyance  per 
se  fraudulent  as  against  his  exist- 
ing creditors,  and  subject  to  be  set 
aside  when  assailed  by  them.  It 
is  not  the  voluntary  nature  of  the 
conveyance  alone  which  renders  it 
in  law  fraudulent,  but  that  fact, 
when  accompanied  with  the  addi- 
tional fact  of  indebtedness  on  the 
part  of  the  grantor  at  the  time 
of  its  execution.  Where  no  ac- 
tual fraud  exists  with  reference  to 
future  or  subsequent  creditors  in 
the  execution  of  the  conveyance, 
and  no  existing  or  present  indebt- 
edness on  the  part  of  the  grantor, 
no  one  would  for  a  moment  ques- 
tion the  validity  of  a  conveyance 
having  and  expressing  on  its  face 
the  consideration  of  love  and  af- 
fection. The  law  sanctions  such  a 
conveyance,  and  there  is  no  room 
for  any  presumption  of  fraud  solely 
from  the  fact  that  a  good,  as  con- 
tradistinguished from  a  valuable, 
consideration    is    expressed    in    the 


deed."  And  see  in  this  connec- 
tion :  Brown  v.  Brown,  44  S.  C. 
378,  22  S.  E.  412;  Nicholas  v.  Ship- 
lett,  (Ky.)  43  S.  W.  248;  Oliphant 
V.  Liversidge,  142  111.  160,  30  N.  E. 
334;  Hester  v.  Sample,  95  la.  86, 
63  N.  W.  463;  Bauer  v.  Bauer,  82 
Md.  241,  33  Atl.  643;  Pickett  v. 
Garrard,  131  N.  C.  195,  42  S.  E. 
579;  Schneitter  v.  Carman,  98  la. 
276,  67  N.  W.  249;  Beith  v.  Beith, 
76  la.  601,  41  N.  W.  371;  Russ  v. 
Maxwell,  87  N.  Y.  Supp.  1077,  94 
App.  Div.  107;  Hutsell  v.  Crewse, 
138  Mo.  1,  39  S.  W.  449. 

*  See  Neurenberger  v.  Lehen- 
bauer,  23  Ky.  L.  Rep.  1753,  66  S. 
W.  15.  And  see,  also,  Driscoll  v. 
Driscoll,  143  Cal.  528,  77  Pac.  471 
(C.  C.  §  1040);  Hiles  v.  Hiles, 
(Ky.)  82  S.  W.  580;  Sibley  v. 
Somers,  62  N.  J.  Eq.  595,  SO  Atl. 
321 ;  Howard  v.  Turner,  125  N.  C. 
107,  34  S.  E.  229;  Carnagie  v.  Di- 
ven,  31  Or.  366,  49  Pac.  891; 
Bernardy  v.  Colonial  etc.  Co.,  17 
S.  D.  637,  98  N.  W.  166,  106  Am. 
St.  Rep.  791.  That  a  seal  imports 
consideratien,  see  Bond  v.  Wil- 
son, 129  N.  C.  325,  40  S.  K  179. 
See,  also,  Cook  v.  Cooper,  59  S.  C, 
560,  38  S.  E.  218;  Golle  v.  Bank, 
52  Wash.  437,  100  Pac.  984. 


CHAP.    XXIV.] 


CONSIDERATION. 


1455 


cause,  as  the  deed  was  not  executed  by  the  grantee,  there  was 
no  agreement  on  his  part,  in  the  opinion  of  the  court,  to  sup- 
port the  grantor,  and  the  deed  was  thus  merely  conditional, 
giving  an  option  to  the  grantee  to  support  the  grantor,  o'-  to 
suffer  it  to  become  void  by  withdrawing  his  support,^  But  sup- 
port of  the  grantor  by  the  grantee,  it  may  be  said,  is  now  re- 
garded everywhere  as  a  sufficient  consideration  for  a  deed. 
The  grantee,  by  accepting  the  deed  and  entering  into  posses- 
sion under  it,  becomes  bound  by  the  agreement  providing  for 
the  support  of  the  grantor,  and  the  provision  for  support  thus 
becomes  equivalent  to  a  life  annuity.^  A  deed  will  not  be  va- 
cated because  the  consideration  is  unlawful.  The  court  will 
leave  the  parties  in  the  position  in  which  it  finds  them.' 


5  Jackson  v.  Florence,  16  Johns. 
47. 

6  Hutchinson  v.  Hutchinson,  46 
Me.  154;  Shontz  v.  Brown,  27  Pa. 
St.  123;  Spalding  v.  Hallenbeck, 
30  Barb.  292;  Exum  v.  Canty,  34 
Miss.  533.  Support  and  mainte- 
nance are  a  sufficient  considera- 
tion: Barnes  v.  Multnomah  Coun- 
ty, 145  Fed.  695;  Norris  v.  Lilly, 
147  Cal.  754,  82  Pac.  425,  109  Am. 
St.  Rep.  188;  Walker  v.  Walker, 
104  la.  505,  73  N.  W.  1073;  Fur- 
nish's  Admr.  v.  Lilly,  (Ky.)  84  S. 
W.  734;  Cutts  v.  Young,  147  Mo. 
587,  49  S.  W.  548;  Anderson  v. 
Gaines,  156  Mo.  664,  57  S.  W.  726; 
Kime  v.  Addlesperger,  24  Ohio 
Cir.  Ct.  R.  397;  Kleckner  v.  Kleck- 
ner,  212  Pac.  515,  61  Atl.  1019; 
Chase  v.  Chase,  20  R.  L  202,  11 
Atl.  804;  Freeman  v.  Jones,  43 
Tex.  Civ.  App.  332,  94  S.  W.  1072 ; 
Carney  v.  Carney,  196  Pa.  St.  34, 
46  Atl.  264.  In  Spalding  v.  Hallen- 
beck, supra,  the  court  refer  to  Jack- 
son V.  Florence,  16  Johns.  47,  and 
say  that  the  cases  are  distinguish- 


able, because,  in  the  latter  case, 
the  provision  for  support  was  ex- 
pressed in  such  language  that  it 
placed  no  obligation  upon  the  gran- 
tee, while  in  the  case  of  Spalding 
V.  Hallenbeck  there  was  a  present 
agreement  for  support,  which  be- 
came binding  upon  the  grantee  by 
his  acceptance  of  the  deed.  And 
see  Henderson  v.  Hunton,  26  Gratt. 
926;  Keener  v.  Keener,  34  W,  Va. 
121.  A  promise  to  pay  taxes  and 
contribute  to  the  grantor's  support 
is  a  sufficient  consideration  for  a 
deed :  Taylor  v.  Crockett,  123  Mo. 
300.  See,  also.  Brown  v.  Brown, 
44  S.  C.  378;  Alvey  v.  Alvey,  (Ky.) 
97  S.  W.  1106;  Webster  v.  Cad- 
wallader,  133  Ky.  500,  118  S.  W. 
327 ;  Hoag  v.  Allen,  152  Mich.  528, 
116  N.  W.  453;  Storms  v.  Peter, 
(N.  J.)   52  Atl.  705. 

■7  Moore  v.  Adams,  8  Ohio,  Zll, 
Z2  Am.  Dec.  723.  It  was  held  in 
one  case  in  California,  that  where 
the  consideration  for  a  deed  made 
by  an  aged  woman  of  feeble  health 
was  her   support   and   maintenance 


1456 


THE  LAW  OF  DEEDS. 


[chap.    XXIV. 


§  807a.  Grantor's  right  of  rescission  passing  to  heirs 
or  personal  representatives. — The  general  rule  is,  that 
where  a  deed  provides  for  the  support  and  maintenance  of  the 
grantor,  and  reserves  a  lien  for  this  purpose,  and  contains  a 
clause,  that  on  failure  of  the  grantee  to  perform  the  covenant, 
the  grantor  may  re-enter,  the  covenant  survives  the  death  of 
the  grantor.'  Mere  delay  for  a  long  time  to  assert  a  cause 
of  action  where  no  injury  has  been  done  to  the  defendant  can 
operate  to  deny  relief  only  on  the  theory  of  abandonment,  and 
evidence  may  be  introduced  to  overcome  any  such  presump- 
tion.^ If  a  deed  contains  a  condition  that  the  grantee  and 
his  heirs  shall  support  an  imbecile  son  of  the  grantor,  and  if 
upon  the  death  of  the  grantor,  this  condition  is  not  fulfilled, 
the  heirs  of  the  grantor  may  re-enter  for  a  breach  of  the  cov- 
enants. This  right,  however,  belongs  to  the  heirs  of  the  grant- 
or and  a  creditor  of  the  imbecile,  who  is  a  stranger  to  the  deed, 


for  the  remainder  of  her  life  by 
the  grantee,  the  consideration  could 
not  be  specifically  enforced,  and 
hence,  being  insufficient  in  law,  the 
deed  will  be  canceled  by  a  court 
of  equity,  if  requested  by  the  gran- 
tor :  Grimmer  v.  Carlton,  93  Cal. 
187,  27  Am.  St.  Rep.  171.  This  case 
is  opposed  by  the  current  of  au- 
thority and  was  subsequently  over- 
ruled by  the  case  of  Norris  v.  Lil- 
ly, 147  Cal.  754,  82  Pac.  425,  109 
Am.  St.  Rep.  188  in  which  the 
court  held  that  a  conveyance  based 
upon  a  promise  of  support,  though 
such  promise  cannot  be  specifical- 
ly enforced,  is  valid.  The  court 
says,  overruling  Grimmer  v.  Carl- 
ton, supra:  "The  mere  fact  that 
a  contract  is  not  specifically  en- 
forceable does  not  render  it  either 
void  or  voidable.  An  agreement  to 
do  any  act  or  series  of  acts  which 
the  promisor  but  for  his  agreement 


was  under  no  obligation  to  perform, 
has  always  been  deemed  an  ample 
consideration  of  any  contract, 
transfer  or  conveyance,  whether 
the  doing  of  such  act  or  acts  should 
be  specifically  enforced  or  not." 
The  court  points  out  the  criticism 
of  Grimmer  v.  Carlton,  supra,  as 
made  by  the  second  edition  of  the 
text  and  adopts  the  views  of  the 
text  and  disapproves  the  rule  enun- 
ciated in  Grimmer  v.  Carlton. 

8  White  v.  Bailey,  65  W.  Va.  573. 
23  L.R.A.(N.S.)  232,  64  S.  E.  1019; 
Cross  V.  Carson,  8  Blatchf.  138, 
44  Am.  Dec.  742;  Parker  v.  Nich- 
ols, 7  Pick.  Ill;  Thomas  v.  Rec- 
ord, 47  Me.  500,  74  Am.  Dec.  500; 
Fluharty  v.  Fluharty,  54  W.  Va. 
407,  46  S.  E.  199;  Jackson  ex  dem. 
Reeves  v.  Topping,  1  Wend.  388, 
19  Am.  Dec.  515. 

9  White  V.  Bailev,  65  W.  Va.  573, 
23  L.R.A.(N.S.)  232,  64  S.  E.  1019. 


I 


CHAP.    XXIV.]  CONSIDERATION.  1457 

cannot  avail  himself  of  this  privilege.*  A  court  of  equity  has 
jurisdiction  at  the  suit  of  the  grantor's  heirs  to  set  aside  the 
deed  for  a  failure  on  the  part  of  the  grantee  to  perform  the 
condition.^  But  if  the  heirs  of  the  grantor  prevent  the  grantee 
from  performing  the  condition,  they  cannot  maintain  an  action 
for  a  cancellation  of  the  deed,  for  breach  of  the  condition.' 

§  808.  Marriage. — Marriage  is,  of  course,  a  valuable 
consideration  for  a  deed.  Where  the  grantee,  under  a  volun- 
tary conveyance,  gains  credit  by  the  conveyance,  and  a  third 
person,  on  account  of  the  provisions  made  for  her  in  the  deed, 
is  induced  to  marry  her,  the  deed  on  the  marriage  loses  its 
voluntary  character,  and  is  effective  as  against  a  subsequent 
bona  Me  purchaser  for  a  valuable  consideration.*  And  al- 
though the  marriage  may  be  prevented  by  death,  a  legal  con- 
tract and  promise  of  marriage  made  in  good  faith  by  a  woman 
to  one  who  has  executed  a  deed  of  land  to  her  for  the  purpose 
of  inducing  her  to  marry  him,  are  a  valuable  considerations  for 

1  Cross  V.  Carson,  8  Blatchf.  138,  Prignon  v.  Daussat,  4  Wash.  199, 
44  Am.  Dec.  742.  31   Am.    St.   Rep.   914;   Tolman   v. 

2  Fluharty  v.  Fluharty,  54  W.  Va.  Ward,  86  Me.  303,  41  Am.  St.  Rep. 
407,  46  S.  E.  199.  See,  also.  Booth  556;  Snyder  v.  Grandstaff,  96  Va. 
V.  Fuller,  35  App.  Div.  117,  54  N.  473,  31  S.  E.  647,  70  Am.  St.  Rep. 
Y.  Supp.  670.  863    (but    holding    under    Virginia 

SHarwood  v.  Shoe,  141  N.  C.  statutes  conveyances  upon  consid- 
161,  53  S.  E.  616.  In  some  cases  it  eration  of  marriage  void  as  to  ex- 
is  said  that  the  party  to  be  sup-  isting  creditors,  but  not  as  to  per- 
ported  is  the  only  party  in  inter-  sons  claiming  to  be  paramount  pur- 
est who  can  maintain  the  action:  chasers  under  will):  Jackson  v. 
Hensley  v.  Hensley,  17  Ky.  L.  Rep.  Jackson,  222  111.  46,  6  L.R.A.(N.S.) 
122,  30  S.  W.  613.  And  see  Ar-  785,  78  N.  E.  19.  If  the  grantee  is 
nett  v.  McGuire,  23  Ky.  L.  Rep.  innocent,  the  fact  that  the  grant- 
2319,  67  S.  W.  60,  where  it  was  or  may  have  intended  a  fraud 
held  that  the  right  to  rescind  was  upon  his  creditors  will  not  avoid 
personal.  the    deed:    Prewit    v.    Wilson,    103 

^Verplank    v.    Sterry,    12    Johns.  U.  S.  22,  26  L.  ed.  360;  Gibson  v. 

536,   7    Am.    Dec.    348.      See,    also,  Bennett,    79    Me.    302;    Tolman    v. 

Nowack  V.  Bcrger,  133  Mo.  24,  31  Ward,  86  Me.  303,  41  Am.  St  Rep. 

L.R.A.  810,  54  Am.   St.   Rep.  663;  556. 
Deeds,  Vol.  II.— 92 


1438  THE  LAW  OF  DEEDS.  [CHAP,    XXIV. 

the  deed,  and  she  can  hold  the  land  embraced  in  the  deed 
against  his  creditors.^  In  this  interesting  case,  Merrick,  J., 
after  stating  that  if  the  marriage  had  taken  place  she  would 
have  been  deemed  to  have  been  a  purchaser  for  a  valuable 
consideration,  and  would  have  taken  a  clear  and  indefeasible 
title,  free  and  purged  of  any  fraud  against  his  creditors,  fur- 
ther remarked :  "And  in  reference  to  the  question  of  the  suf- 
ficiency and  value  of  the  consideration,  and  consequently  of 
the  validity  of  the  title  acquired  by  the  conveyance,  there  does 
not  appear  to  be  any  real  and  substantial  distinction  between 
a  marriage  formally  solemnized,  and  a  binding  and  obligatory 
agreement,  which  has  been  fairly  and  truly  and  above  all  sus- 
picion of  collusion  made  to  form  such  connection  and  enter 
into  that  relation.  All  the  consequences  of  a  legal  obligation 
accompany  such  an  agreement.  The  law  enforces  its  perform- 
ance by  affording  an  effectual  remedy  against  the  party  who 
shall,  without  legal  excuse,  fail  to  fulfill  it.  But  a  contract 
of  this  kind  is  not  to  be  regarded  as  a  valuable  consideration, 
merely  because  damages  commensurate  with  the  injury  may 
be  recovered  of  the  party  who  inexcusably  refuses  to  fulfill  it. 
It  is  peculiar  in  its  character,  and  has  other  effects  and  conse- 
quences attending  it.  It  essentially  changes  the  rights,  duties, 
and  privileges  of  the  parties.  They  cannot,  while  it  exists, 
without  a  violation  of  good  faith,  as  well  as  of  the  material 
legal  obligations  to  which  it  subjects  them,  negotiate  a  con- 
tract for  such  alliance  with  any  other  person.  A  woman  who 
has  voluntarily  made  such  an  agreement  cannot,  without  in- 
delicacy, and  so  not  without  exposing  herself  to  unfavorable 
observation,  and  to  some  loss  of  public  favor  and  respect,  seek 
elsewhere,  except  for  good  and  substantial  reasons  for  with- 
drawing from  an  engagement  by  which  she  has  bound  herself, 
for  preferment  in  marriage;  and  thus  her  promise  and  agree- 
ment to  marry  a  particular  person  essentially  changes  her  con- 
dition in  life.     They  materially  affect  not  only  her  opportuai- 

B  Smith  V.  Allen.  5  Allen.  454.  81      Am.  Dec.  758. 


CHAP.    XXIV.] 


CONSIDERATION. 


1459 


ties,  but  her  right  to  attempt  in  that  way  to  improve  it.  A 
legal  contract  and  promise  made  in  good  faith  to  marry  aij- 
other  must,  therefore,  like  an  actual  marriage,  be  deemed  to 
be  a  valuable  consideration  for  the  conveyance  of  an  estate, 
and  will  justly  entitle  the  grantee  to  hold  it  against  subsequent 
purchasers,  or  the  creditors  of  the  grantor."  ® 

§  808a.  Estoppel,  from  representations  in  marriage 
negotiations. — A  party  who  makes  representations  as  to 
title  to  effect  a  marriage  may  be  held  estopped  by  these  repre- 
sentations. A  curious  case  in  support  of  this  principle  oc- 
curred in  New  York.  A  father  died,  leaving  by  will  a  farm 
to  two  sons,  James  and  Frederick,  and  subject  to  the  limitation 
in  the  case  of  Frederick,  that  if  he  should  die  without  issue, 


'  Smith  V.  Allen,  supra.  In  a  case 
in  California,  Connor  v,  Stanley, 
65  Cal.  183,  a  man,  William  Jarvis, 
and  a  woman,  Mrs.  J.  L.  Connor, 
had  executed  a  contract,  each  prom- 
ising to  marry  the  other,  and  the 
contract  further  provided  that  "in 
consideration  thereof,  and  of  the 
mutual  affection  existing  between 
them,  the  party  of  the  first  part 
grants  and  gives  to  the  said  party 
of  the  second  part  ten  thousand 
($10,000)  dollars'  worth  of  the 
bonds  of  the  Natoma  Water  and 
Mining  Company,  a  corporation  du- 
ly organized  under  the  laws  of  the 
State  of  California,  being  twenty 
bonds  of  five  hundred  ($500)  dol- 
lars each,  made  payable  to  bearer, 
now  in  the  possession  of  the  party 
of  the  first  part,  all  of  which  he 
promises  to  deliver  to  her,  the  par- 
ty of  the  second  part,  on  or  before 
the  day  of  their  said  marriage,  to 
be  and  become  her  own  absolute 
property  in  her  own  name  as  her 
separate  estate."    Mrs.  Connor  was 


always  ready  to  fulfill  her  part  of 
the  agreement,  but  Jarvis  refused 
to  marry,  and  continued  his  refusal 
down  to  the  time  of  his  death.  Aft- 
er Jarvis'  death,  Mrs.  Connor  pre- 
sented a  verified  claim  to  the  ad- 
ministrator of  his  estate,  and  this 
being  rejected,  brought  suit  for  the 
value  of  the  bonds.  The  court  be- 
low took  the  view  that  the  contract 
of  Jarvis  was  a  mere  promise  to 
deliver  the  bonds  upon  the  mar- 
riage of  the  parties  within  a  rea- 
sonable time.  But  the  supreme 
court  held  this  to  be  error.  The 
court  held  that  the  agreement  was 
an  antenuptial  settlement,  the  con- 
sequences of  which  Jarvis  could 
not  avoid  by  refusing  to  consum- 
mate the  marriage.  Upon  his  re- 
fusal, after  a  reasonable  time,  to 
marry  her,  she  was  entitled  to  the 
bonds.  It  became  his  duty  to  seek 
her  in  marriage,  not  hers  to  seek 
him.  And  see,  also,  Whelan  v. 
Whelan,  3  Cowen,  537;  Ellinger  v. 
Crowl,  17  Md.  361. 


1460  THE  LAW  OF  DEEDS.  [CHAP.    XXIV. 

the  portion  of  the  estate  devised  to  him  should  vest  in  James 
and  his  heirs.  Frederick  conveyed  his  interest  in  the  land  to 
one  Hoard,  and  the  latter,  subsequently,  sought  one  Catharine 
Hogel  for  the  purpose  of  bringing  about  a  marriage  between 
her  and  Frederick.  For  the  purpose  of  persuading  her  to 
marry  Frederick,  Hoard  falsely  and  fraudulently  represented 
to  her  that  Frederick  had  a  piece  of  fine  property,  and  that  if 
she  married  and  had  an  heir  the  land  would  go  to  the  heir.  In- 
duced by  these  representations  Catharine  did  marry  Frederick, 
and  the  result  of  the  marriage  was  a  daughter.  Shortly  after 
the  birth  of  this  daughter,  the  farm  was  partitioned  between 
James  and  Hoard,  the  grantee  of  Frederick.  The  object  of 
Hoard  in  bringing  about  the  marriage  was  to  fulfill  the  condi- 
tion in  the  will  and  if  Frederick  had  issue,  he  should  obtain 
the  fee ;  otherwise  he  would  possess  only  a  life  estate,  and  the 
birth  of  a  child,  vesting  the  fee  in  Frederick,  would  make 
Hoard's  title  perfect.  The  daughter  commenced  an  action 
praying  that  she  be  declared  the  owner  of  the  farm  set  off  in 
partition  to  Hoard.  The  latter,  while  admitting  that  he  pro- 
cured the  fee  of  the  farm  through  the  marriage,  claimed  that 
the  daughter  had  no  right  of  action  against  him  because  of  a 
lack  of  privity,  and  that  she  was  not  induced  to  any  action 
by  reason  of  his  fraud  and  sustained  no  legal  damage  from  it. 
The  court  held,  however,  that  Hoard  held  the  land  in  trust 
for  her.  Mr.  Justice  Peckham  who  delivered  the  opinion  of 
the  court  observed :  "It  is  true,  her  own  action  was  in  no- 
wise influenced  by  these  representations,  for  she  was  not  then 
born.  But  where,  in  the  peculiar  and  anomalous  rules,  ob- 
taining in  that  branch  of  the  law,  regarding  marriage,  mar- 
riage settlements,  and  frauds  in  relation  thereto,  a  marriage 
is  induced  under  circumstances  such  as  exist  in  this  case,  we 
think  there  is  no  trouble  in  holding  the  defendant  bound  by 
his  representations,  and  that  in  the  character  of  a  trustee  ex 
malcficio-,  he  shall  be  held  to  make  good  the  thing  to  the  per- 
son who  would  have  the  property  if  the  fact  were  as  he  repre- 


I 


CHAP.    XXIV.]  CONSIDERATION.  1461 

sented  it,  assuming  such  person  to  be  the  fruit  of  the  marriage 
brought  about  by  those  very  representations.' 

§  808b.  Parol  evidence  showing  marriage  to  be  con- 
sideration.— Although  the  deed  may  recite  that  it  is  based 
upon  a  pecuniary  consideration,  it  may  be  shown  by  parol  evi- 
dence that  marriage  was  the  true  consideration.'  Where  it 
is  recited  in  a  deed  that  the  consideration  is  the  promise  of 
the  grantee  to  marry  the  grantor,  and  the  deed  is  drafted  by 
the  grantee  and  transmitted  to  the  grantor  for  execution,  a 
written  memorandum  of  the  contract  of  marriage  signed  by 
the  grantee  is  not  necessary.* 

§  808c.  Grantor's  intention  to  defraud  creditors  where 
deed  is  made  in  consideration  of  marriage. — If  the  grantee 
is  unaware  at  the  time  that  the  grantor  intends  to  defraud  his 
creditors,  her  knowledge  of  this  fact  before  she  complies  with 
her  contract  of  marriage  will  not  be  sufficient  to  avoid  the 
deed.  The  consideration  for  the  deed  is  not  the  actual  con- 
summation of  the  marriage,  but  the  agreement  to  marry.*  If 
the  grantee  is  innocent,  the  deed  is  valid,  and  it  is  immaterial 
whether  or  not  the  grantor  intended  a  fraud  upon  his  credi- 
tors. The  fact  that  he  did  intend  such  a  fraud  will  not  avoid 
the  deed.'  Marriage  is  regarded  in  law  as  the  highest  and 
most  valuable  of  considerations,  and  the  grantee,  when  free 
from  fraud,  in  as  secure  a  position  as  though  she  had  paid  in 
money  the  full  value  of  the  property.  Hence,  where  a  father 
conveys  land  to  his  daughter  upon  the  express  consideration 
of  her  marriage,  which  was  an  inducement  for  the  conveyance, 
and  she  accepts  the  deed  without  knowing  or  suspecting  any 

7  Piper  V.  Hoard,   107  N.  Y.  73,  i  Prignon    v.    Daussat,    4    Wash. 
1  Am.  St.  Rep.  789.  199,  31  Am.  St.  Rep.  914. 

8  Tolman  v.  Ward,  86  Me.  303,  41  2  Prewit  v.  Wilson,  103  U.  S.  22, 
Am.  St.  Rep.  556.  26  L.   ed.  360;   Gibson  v.   Bennett, 

aPrignon    v.    Daiissat,    4    Wash.       79   Me.   302;   Tolman  v.  Ward,  86 
199,  31  Am.  St.  Rep.  914.  Me.  303,  41  Am.  St.  Rep.  556. 


1462 


THE  LAW  OF  DEEDS. 


[chap,    XXIV. 


fraud,  and  the  deed  is  made  by  the  grantor  without  any  in- 
tent to  defraud  his  creditors,  beheving  he  is  fully  able  to  pay 
them,  the  deed  is  valid  against  the  grantors  creditors,  al- 
though, at  the  time  when  he  executed  the  deed,  he  was,  in 
fact,  insolvent.' 

§  809.  Other  valuable  considerations. — Valuable  con- 
siderations are  of'  numerous  kinds,  though  most  frequently 
they  are  either  money  or  marriage.  It  is  not  intended  to  refer 
to  every  consideration  that  the  courts  have  declared  to  be  val- 
uable, but  it  may  be  worth  while  to  call  attention  to  a  few  as 
illustrations.  A  sufficient  consideration  to  support  a  deed  may 
consist  of  an  agreement  to  do  a  thing,  even  though,  as  a  mat- 
ter of  fact,  the  agreement  is  never  performed.  If  a  purchaser 
from  the  grantee  under  such  a  deed  believes  that  the  agree- 
ment will  not  support  a  deed  and  that  it  will  not  be  performed, 
this  does  not  make  his  purchase  fraudulent  or  invalidate  his 
title.*  So  a  bona  Ude  release  of  a  debt  previously  incurred 
may  be  sufficient  consideration  for  a  deed,^  as  may  also  be 


3  Cohen  v.  Knox,  90  Cal.  266,  13 
L.R.A.  711.  Generally,  to  avoid  a 
deed  on  the  ground  of  fraud,  it 
must  be  shown  that  the  grantee  was 
aware  of  the  fraud :  Cooke  v. 
Cooke,  43  Md.  522;  Mehlhop  v. 
PeUibone,  54  Wis.  652;  Hopkins 
V.  Langton,  30  Wis.  379;  Curtis 
V.  Valhton,  3  Mont.  187;  Preston 
V.  Turner,  36  Iowa,  671 ;  Clements 
V.  Moore,  6  Wall.  312,  18  L.  ed. 
789;  Rea  v.  Missouri,  17  Wall.  543. 
21  L.  ed.  709;  Miller  v.  Bryan,  3 
Iowa,  58;  Hall  v.  Arnold,  15  Barb. 
600;  Steele  v.  Ward,  25  Iowa,  535; 
Partelo  v.  Harris,  26  Conn.  480; 
Bancroft  v.  Blizzard,  13  Ohio,  30; 
Chase  v.  Walters,  28  Iowa,  460; 
Violett  V.  Violett,  2  Dana,  323; 
Howe   Machine    Co.    v.    Claybourn, 


6  Fed.  Rep.  441 ;  Kittredge  v.  Sum- 
ner, 11  Pick.  SO;  Fifield  v.  Gaston, 
12  Iowa,  218;  Byrne  v.  Becker,  42 
Mo.  464;  McCormick  v.  Hyatt,  33 
Ind.  546;  Kellogg  v.  Aherin,  48 
Iowa,  299;  Leach  v.  Francis,  41 
Vt.  670;  Drummond  v.  Couse,  39 
Iowa,  442;  Ewing  v.  Runkle,  20 
111.  448;  Foster  v.  Hall,  12  Pick. 
89,  22  Am.  Dec.  400:  Jaeger  v. 
Kelley,  52  N.  Y.  274;  Ruhl  v.  Phil- 
lips, 48  N.  Y.  125,  8  Am.  Rep.  522. 
But  the  statute  may  make  the  con- 
veyance void  as  to  existing  credit- 
ors. See  Snyder  v.  Grandstaflf,  96 
Va.  473,  31  S.  E.  647,  70  Am.  St 
Rep.  863. 

*Gray  v.  Lake,  48  Iowa,  505; 
Lake  v.   Gray,  35  Iowa,  459. 

5  Reinach    v.    New    Orleans    etc 


CHAP.    XXIV.] 


CONSIDERATION. 


1463 


the  extinguishment  of  a  mortgage."  If  a  person  having  a 
wife  seduces  an  innocent  woman  by  a  pretended  marriage,  the 
injured  party  is  entitled  to  compensation  in  money,  and  such 
right  to  compensation  is  a  valuable  consideration  for  a  deed.''^ 
Where  a  deed  made  on  the  consideration  of  future  illicit  inter- 
course between  the  grantor  and  grantee  is  fully  executed  and 
delivered,  the  title  is  vested  in  the  grantee.'  A  covenant  to  ren- 
der personal  services  to  the  grantor  is  a  valuable  considera- 
tion, and  is  sufficient  to  support  a  bargain  and  sale  deed.' 
The  benefit  to  other  lands  of  the  grantor  to  result  from  the 
use  to  be  made  of  those  conveyed  to  the  grantee,  is  a  valuable 
consideration.^  An  assignment  of  a  part  interst  in  a  bond 
for  title  is  a  sufficient  consideration.^  A  deed  was  held  to  be 
a  good  bargain  and  sale  deed  where  no  amount  was  mentioned, 
but  it  was  recited  that  the  deed  was  made  for  "a  certain  sum 


Co.,  50  La.  Ann.  497,  23  So.  455; 
McElwee  v.  Kennedy,  56  S.  C.  154, 
34  S.  E.  86. 

8  Brown  v.  Sumter  Bank,  55  S. 
C.  51,  32  S.  E.  816. 

7  Doe  V.  Horn,  1  Ind.  363,  50 
Am.  Dec.  470.  And  in  such  case 
the  title  of  the  grantee  will  be 
valid,  although  the  grantor  may 
thereby  intend  to  defraud  his  cred- 
itors, if  the  grantee  has  no  knowl- 
edge of  such  intention:  Doe  v. 
Horn,   supra. 

8  Hill  V.  Freeman,  73  Ala.  200,  49 
Am.   Rep.  48. 

» Young  V.  Ringo,  1  Mon.  30. 
See,  also,  Busey  v.  Reese,  38  Md. 
266;  McMahan  v.  Morrison,  16  Ind. 
172,  79  Am.  Dec.  418;  Gale  v.  Co- 
burn,  18  Pick.  397;  McWhorter  v. 
Wright,  5  Ga.  555 ;  Cheney  v.  Wat- 
kins,  1  Har.  &  J.  527,  2  Am.  Dec. 
530.  A  deed  being  lost,  a  quit- 
claim to  replace  it,  executed  by  the 


grantors  after  the  death  of  the 
grantees  to  heirs  of  the  latter,  is 
not  without  consideration:  Hill  v. 
Jackson,  (Tex.)  51  S.  W.  357.  That 
the  moral  obligation  arising  from  an 
antecedent  legal  obligation,  the  en- 
forcement of  which  has  been  sus- 
pended by  law,  is  sufficient  consid- 
eration to  support  a  deed,  see 
Strayer  v.  Dickerson,  205  111.  257, 
68  N.  E.  767. 

1  Jackson  v.  Pike,  9  Cowen,  69. 
The  reservation  of  rent  in  a  lease 
is  a  sufficient  consideration  for  a 
stipulation  that  the  lessor  will  con- 
vey at  a  fixed  price  upon  the  ex- 
piration of  the  term:  Gastin  v.  Un- 
ion School  District  of  Bay  City,  94 
Mich.  502,  34  Am.  St  Rep.  361. 
See,  also,  Kerr  v.  Day,  14  Pa.  St. 
112,  53  Am.  Dec.  526;  Harding  v. 
Gibbs,  125  111.  85,  8  Am.  St.  Rep. 
345. 

2  Cannon  v.  Young,  89  N.  C  264. 


1464  THE  LAW  OF  DEEDS.  [CHAP.    XXIV. 

in  hand  paid" ; '  so  where  the  deed  recites  that  it  is  made  "for 
vakie  received."  *  Likewise  a  deed  based  upon  a  settlement 
of  a  claim  has  a  sufficient  consideration.^  The  interest  of  the 
grantor  passes  prima  facie  by  a  bona  fide  conveyance,  whether 
made  for  a  consideration  or  not.^  A  voluntary  deed  from  son 
to  father  is  valid.'  Although  a  voluntary  deed  may  convey 
all  the  property  of  the  grantor,  yet  if  he  was  capable  of  mak- 
ing a  deed,  and  it  was  his  deliberate  act,  not  procured  by  fraud 
or  undue  influence,  a  court  of  equity  will  not  rescind  it  be- 
cause the  grantor's  action  was  improvident.'  No  pecuniary 
consideration  is  necessary  in  a  deed  from  a  father  to  his  chil- 
dren.' While  a  want  of  consideration  may  be  shown  as  in- 
dicating fraud  on  the  part  of  the  grantee  this  will  not  be  suf- 
ficient to  warrant  a  court  in  annulling  it  unless  the  rights  of 
third  persons  intervene.* 

§  810.  Deeds  of  bargain  and  sale  and  covenants  to 
stand  seised. — To  give  effect  to  a  deed  under  the  statute 
of  uses  as  a  deed  of  bargain  and  sale  or  a  covenant  to  stand 
seised  to  uses,  it  is  essential  that  there  should  be  a  consider- 
ation. A  valuable  consideration  is  necessary  for  the  operation 
of   a  deed  of  bargain  and  sale."     And  however   small  the 

» Jackson     v.      Schoonmaker,     2  etc.  Ry.  Co.  v.  Blythe,  69  Miss.  939, 

Johns.  230.    To  the  same  effect  see  30  Am.   St.  Rep.   599. 

Jewell  V.  Walker,   109  Ga.  241,  34  ^  Jones   v.   Gatliff,    (Ky.)    113   S. 

S.   E.  337  quoting  text  in  support  W.  436;   Burgson  v.  Jacobson,  124 

of    proposition    that    deed    reciting  Wis.  295.  102  N.  W.  563. 

"for  and  in  consideration  of ^  '  ?°f  Z^.,^'""-  ^''''°"  ""•  ^'''^' 

7  Blackf.  510. 

7  Hiles  V.  Hiles,  82  S.  W.  580,  83 

-.       •  J        .   u  J      S.  W.  615. 

s.deration    need    not   be    expressed-         3  ^^^^^j  ^^  ^^^^^^  ^^3  p^   29. 

in   the   wntmg.  ^^^^^    ^     Maxwell,    87    N.    Y. 

4  Jackson  V.  Alexander,  3  Johns.  s^,pp_  jq;;^  94  ^pp    j^j^    io7. 

484,  3  Am.  Dec.  517.    The  erection  1  Howard   v.   Turner,   125   N.   C. 

and  maintenance  of  a  railway  sta-  107,  34  S.  E.  229. 

tion  is  a  valuable  consideration  for  2  Boardman   v.  Dean,  34   Pa.    St. 

a    deed:    Louisville,    New    Orleans  252;  Jackson  v.  Sebring,  16  Johns. 


dollars"  is  not  inadmissible  in  evi- 
dence for  the  reason  that  the  con- 


CHAP.    XXIV.]  CONSIDERATION.  1465 

pecuniary  consideration  may  be,  it  is  sufficient  to  support  a 
deed  of  bargain  and  sale.^  A  covenant  to  stand  seised  is  sup- 
ported by  a  good  consideration.*  It  is  not  essential,  however, 
that  such  consideration  should  be  expressed  in  the  deed. 
If  it  actually  exists,  a  deed  will  be  supported  as  a 
covenant  to  stand  seised.^  A  deed  recited  that  in 
consideration  of  three  thousand  dollars  paid  by  the  grantee, 
the  grantor  gave,  granted,  sold,  and  conveyed  to  him  certain 
land,  the  grantor  reserving  the  right  to  use  and  occupy  during 
his  natural  life,  free  of  rent,  the  property  so  granted.  The 
grantee  had  married  the  daughter  of  the  grantor,  but  she  had 
died  before  the  execution  of  the  deed.  But  she  had  left  chil- 
dren who  were  alive  at  the  time  of  the  execution  of  the  deed. 
It  was  held  that  under  the  technical  rule  forbidding  the  crea- 
tion of  a  freehold  estate  to  commence  in  futuro,  the  deed,  if 
regarded  as  a  feoffment  or  bargain  and  sale,  was  void ;  but  that 
the  consanguinity  existing  between  the  grantor  and  his  grand- 
children, was  a  sufficient  consideration  for  a  covenant  to  stand 
seised  to  uses,  and  that  such  consideration  might  be  averred 
and  proved  although  one  entirely  different  was  set  forth  in 
the  deed,  and  the  deed  did  not  allude  to  such  consanguinity. 
The  deed  as  a  covenant  to  stand  seised  was  consequently  held 
to  vest  the  title  in  the  grantee,  subject  to  the  life  estate  of  the 
grantor.*  So  in  regard  to  a  deed  of  bargain  and  sale,  it  may 
be  operative,  notwithstanding  no  pecuniary  consideration  is 

515,   8  Am.   Dec.   357;   Jackson   v.  lis  v.  Wallis,  4   Mass.   135,  3  Am. 

Florence,    16    Johns.    46;    Gault    v.  Dec.     210.       But     see     Trafton     v. 

Hall,  26  Me.  561;   Jackson  v.  De-  Hawes,  102  Mass.  533,  3  Am.  Rep. 

lancey,    4    Cowen,    427;    Chiles    v.  494;  Jackson  v.  Cadwell,  1  Cowen, 

Coleman,  2   Marsh.   A.   K.  296,   12  639. 

Am.  Dec.  396.  6  Wallis  v.   Wallis,  4  Mass.   135, 

3  Bell  V.  Scammon,  IS  N.  H.  381,  3  Am.  Dec.  210;  Brewer  v.  Hardy, 
41   Am.   Dec.   706.     See   Corwin   v.  22  Pick.  380,  33  Am.  Dec.  747. 
Corwin,  6  N.  Y.  342,  57  Am.  Dec.  ^  Qale    v.    Coburn,    18    Pick.    397. 
453  But  see  Jackson  v.  Delancey,  4  Co- 

4  Green  v.  Thomas,   11    Me.  321;  wen,    427;    Jackson    v.    Cadwell,    1 
Rollins  V.  Riley,  44  N.  H.  11;  Wal-  Cowen,  639. 


1466 


THE  LAW  OF  DEEDS. 


[chap.    XXIV. 


expressed  in  the  deed,  as  it  may  be  proved  aliunde.'^  The  re- 
cital in  the  deed  that  a  pecuniary  consideration  has  been  paid, 
so  far  as  the  legal  effect  of  the  conveyance  as  a  deed  of  bar- 
gain and  sale  is  concerned,  is  conclusive.  By  this  is  meant 
simply  the  effect  of  the  deed  aside  from  any  question  of  fraud.' 

§  811.     Consideration   of  paying   grantor's   debts. — If 

an  owner  of  land  execute  a  deed  on  the  consideration  that  the 
grantee  shall  pay  all  the  debts  of  the  grantor,  the  grantee,  al- 
though he  does  not  execute  the  deed,  yet  if  he  accepts  the  deed 
and  takes  possession  of  the  lands,  is  bound  personally  for  the 
payment  of  the  debts  of  the  grantor,  and  a  court  of  equity  will 
subject  the  land  to  the  payment  of  such  debts.'  Though  a 
part  of  the  consideration  fail,  there  will  be  no  apportionment 
where  a  part  of  it  is  good.* 

§  812.     Trust  to  distribute  estate  according  to  will. — A 
deed  reciting  that  the  grantor  was  aged  and  infirm,  and  at 


''Jackson  v.  Dillon,  2  Over.  261; 
Perry  v.  Price,  1  Mo.  553 ;  Den  v. 
Hanks,  5  Ired.  30.  See  Rnth  v. 
Ford,  9  Kan.  17;  Jackson  v.  Alex- 
ander, 3  Johns.  484,  3  Am.  Dec. 
517. 

8  Rockwell  V.  Brown,  54  N.  Y. 
210;  Hatch  v.  Bates,  54  Me.  136; 
Jones  V.  Dougherty,  10  Ga.  273 ; 
Trafton  v.  Hawes,  102  Mass.  541, 
3  Am.  Rep.  494 ;  Jones  v.  Dough- 
erty, 10  Ga.  273 ;  Hartshorn  v.  Day, 
19  How.  211,  15  L.  ed.  605.  And 
see  Winans  v.  Peebles,  31  Barb. 
371 ;  Thompson  v.  Thompson,  9 
Ind.  323,  68  Am.  Dec.  638;  Hallo- 
cher  V.  Hallocher,  62  Mo.  267; 
Kerr  v.  Birnie,  25  Ark.  225 ;  Lake 
V.  Gray,  35  Iowa,  461 ;  Randall  v. 
Ghent,  19  Ind.  271;  Barker  v. 
Koneman,  13  Cal.  9. 


9  Vanmeter's  Executors  t.  Van- 
meters,  3  Gratt.  148.  See  Buflfum 
V.  Green,  5  N.  H.  71,  20  Am.  Dec. 
562. 

1  Wilson  V.  Webster,  Morris,  312, 
41  Am.  Dec.  230.  See  as  to  decla- 
rations of  grantor  as  part  of  the 
res  gesla  to  prove  consideration, 
Sutton  V.  Reagan,  5  Blackf.  217,  33 
Am.  Dec.  466.  Signing  a  note  as 
a  surety  is  a  valid  consideration : 
Grigsby  v.  Schwartz,  82  Cal.  278. 
A  deed  is  supported  by  a  valuable 
consideration  where  the  grantee 
discharges  a  debt  due  to  him  by  a 
third  person  to  whom  his  grantor 
is  indebted  in  an  equal  amount,  and 
the  claim  against  the  grantor  ia 
canceled :  Smith  v.  Westall,  76  Tex. 
509. 


CHAP.    XXIV.]  CONSIDERATION.  1467 

times  unable  to  g-ive  attention  to  his  business,  and  that  in  an- 
ticipation of  his  incapacity  and  of  a  sum  of  money,  he  con- 
veyed his  estate  in  trust  for  the  use  of  himself  for  life,  and 
at  his  death  to  be  distributed  according  to  the  provisions  of 
his  will  before  made,  is  supported  by  a  sufficient  consideration. 
It  passes  the  legal  title  to  the  trustees,  and  cannot  be  revoked.^ 

§  813.  Valuable  consideration  as  protection  to  bona 
fide  purchasers. — In  order  that  a  person  may  claim  that 
he  occupies  the  position  of  a  bona  -fide  purchaser,  when  ques- 
tions arise  as  to  the  priority  of  two  or  more  titles  or  claims 
to  the  same  property,  it  is  essential  as  one  of  the  facts  giving 
him  this  character  that  he  has  acquired  his  right  for  a  valua- 
ble consideration.  A  person  who  is  a  mere  volunteer,  having 
acquired  title  by  gift,  inheritance  or  some  kindred  mode,  can- 
not come  within  the  scope  of  the  term  "bona  fide  purchaser."  ^ 
To  enable  the  grantee  to  claim  protection  as  a  bona  fide  pur- 
chaser he  must  have  parted  with  something  possessing  an  ac- 
tual value,  capable  of  being  estimated  in  money,  or  he  must 
on  the  faith  of  the  purchase  have  changed,  to  his  detriment, 
some  legal  position  that  he  before  had  occupied.* 

2  Turner  v.  Turner,  1   Mon.  243.  Prout,  52  111.  354;  Boon  ▼.  Barnes, 

A   deed   reserving   a   life   estate   in  23  Miss.  136;  Frost  v.  Beekman,  1 

the  grantor  is  not  void  for  want  of  Johns.   Ch.   288;    Patten   v.   Moore, 

consideration    where    land    is    con-  32  N.  H.  382;   Everts  v.  Agnes,  4 

veyed   pursuant  to  a   request  by  a  Wis.  343,  65  Am.  Dec.  314;  Evans 

person  desirous  of  devising  to  the  v.  Templeton,  69  Tex.  375,  5  Am. 

grantor  only  a  life  estate  with  re-  St.   Rep.   71.     And  see  Howard   v. 

mainder    to    the    grantee    without  Turner,    125    N.    C.    107,   34    S.    E. 

changing  his  will:   Jenkins  v.   Ad-  229.     See,  also,  cases  cited  end  of 

cock,  5  Tex.  Civ.  App.  466.  §  806,  ante. 

*  Swan  V.  Legan,   1   McCord   Eq.  *  Union    Canal    Co.    v.    Young,    1 

227;  Morse  v.  Wright,  60  Cal.  260;  Whart.  410,  30  Am.  Dec.  212;  Spur- 

Upshaw  v.   Hargrove,  6  Smedes  &  lock  v.  Sullivan,  36  Tex.  511;  Web- 

M.  286;  Roseman  v.  Miller,  84  111.  ster   v.    Van    Steenbergh,   46   Barb. 

297;   Bishop   v.    Schneider,  46   Mo.  211;  Haughwout  v.  Murphy,  21  N. 

472,    2    Am.    Rep.    533;    Aubuchon  J.  Eq.   (6  Green,  C.  E.)   118;  Reed 

▼.   Bender,  44   Mo.   560;   Bo  wen  v.  v.  Gannon,  3  Daly,  414;  Pickett  v. 


I 


1468 


THE  LAW  OF  DEEDS. 


[chap.    XXIV. 


§  814.  Adequacy  of  consideration  and  failure  of  consid- 
eration.— Where  the  deed  is  taken  in  good  faith,  the 
amount  of  the  consideration  paid  is  immaterial.^  Inadequacy 
of  consideration,  of  itself  alone,  is  no  ground  for  setting  aside 
the  conveyance.^     A  deed  will  not  be  set  aside  simply  because 


Barron,  29  Barb.  505;  Penfield  v. 
Dunbar,  64  Barb.  239;  Roxborough 
V.  Messick,  6  Ohio  St.  448,  67  Am. 
Dec.  346;  McLeod  v.  Nat.  Bank, 
42  Miss.  99;  Dickerson  v.  Tilling- 
hast,  4  Paige,  215,  25  Am.  Dec. 
528;  Williams  v.  Shelly,  37  N.  Y. 
375;  Delancey  v.  Stearns,  66  N.  Y. 
157;  Lawrence  v.  Clark,  36  N.  Y. 
128;  Weaver  v.  Barden,  49  N.  Y. 
286;  Brown  v.  Welch,  18  111.  343, 
68  Am.  Dec.  549;  Keys  v.  Test,  33 
111.  316;  Wood  v.  Chapin,  13  N. 
Y.  509,  67  Am.  Dec.  62 ;  Westbrook 
V.  Gleason,  79  N.  Y.  23,  36;  Gary 
V.  White,  52  N.  Y.  138;  Palmer 
V.  Williams,  24  Mich.  328;  Seward 
V.  Jackson,  8  Cowen,  406,  430; 
Story  V.  Lord  Windsor,  2  Atk.  630 ; 
Hardingham  v.  Nicholls,  3  Atk. 
304;  Tourville  v.  Naish,  3  P.  Wms. 
306;  Baggarly  v.  Gaither,  2  Jones 
Eq.  80;  Bowen  v.  Prout,  52  111.  354; 
Gerson  v.  Pool,  31  Ark.  85;  Keir- 
sted  V.  Avery,  4  Paige,  9;  Glidden 
V.  Hunt,  24  Pick.  221;  Conard  v. 
Atlantic  Ins.  Co.,  1  Peters,  386; 
Curtis   V.   Leavitt,    15   N.   Y.    11. 

6  See  Seward  v.  Jackson,  8  Co- 
wen,  406,  430;  Wood  v.  Chapin,  13 
N.  Y.  509,  67  Am.  Dec.  62;  Pickett 
V.  Barron,  29  Barb.  505;  Gary  v. 
White,  52  N.  Y.  138.  And  see 
Aden  v.  Vallejo,  139  Gal.  165,  12 
Pac.  905;  Hennesey  v.  Gorneille, 
69  N.  Y.  Supp.  1126,  61  App.  Div. 
620. 

•Driscoll    V.    Driscoll,    143    GaL 


528,  n  Pac.  471;  Powers  v.  Pow- 
ers, 46  Or.  479,  80  Pac.  1058;  New- 
man V.  Newman,  (Tex.)  86  S.  W. 
635;  McLeod  v.  McLeod,  145  Ala. 
269,  40  So.  414,  117  Am.  St.  Rep. 
41 ;  Jacobsen  v.  Nealand,  122  la. 
372,  98  N.  W.  158;  McKinley  v. 
McKinley,  23  Ky.  L.  Rep.  2314,  66 
S.  W.  831.  And  see  Dunaway  v. 
Dunaway,  (Ky.)  105  S.  W.  137; 
Parrish  v.  Bagley,  138  N.  C.  384, 
70  L.R.A.  160,  50  S.  E.  841 ;  Brock- 
way  V.  Harrington,  82  la.  23,  47 
N.  W.  1013;  Stamper  v.  Venable, 
117  Tenn.  557,  97  S.  W.  812;  Hard- 
ware etc.  Co.  V.  Catrett,  45  Tex. 
Civ.  App.  647,  101  S.  W.  559.  As 
is  said  in  McLeod  v.  McLeod,  su- 
pra: "Mere  inadequacy  of  consid- 
eration is  not  a  sufficient  ground 
for  setting  aside  and  annulling  a 
contract.  As  was  said  in  Judge  v. 
Wilkins,  19  Ala.  765:  T  follow 
the  language  of  the  authorities  in 
saying  that  inadequacy  of  price,  or 
other  inequality  in  the  bargain,  is 
not  within  itself  a  sufficient  ground 
to  avoid  a  contract  in  a  court  of 
equity,  on  the  ground  of  fraud ;  for 
courts  of  equity,  as  well  as  courts 
of  law,  must  act  upon  the  ground 
that  every  person,  who  is  not  un- 
der some  legal  disability,  may  dis- 
pose of  his  property  in  such  man- 
ner and  upon  such  terms,  as  he 
sees  fit;  and  whether  his  bargains 
are  discreet  or  not,  profitable  or 
unprofitable,      are      considerations, 


CHAP.    XXIV.] 


CONSIDERATION. 


1469 


the  conveyance  is  an  unequal  one,  where  no  force  or  duress  is 
used.''  A  grantee  will  be  bound  by  the  fraud  of  his  agent 
who  secures  by  means  of  fraudulent  concealment  a  tract  of 
land  for  an  exceedingly  small  consideration.*  There  must 
either  be  actual  fraud  or  a  fiduciary  relation  must  exist  to  ren- 
der inadequacy  of  consideration  a  ground  for  setting  aside 
a  deed.  But  if  the  inadequacy  of  consideration  is  so  gross  as 
to  shock  the  conscience,  a  court  will  be  justified  in  setting 
aside  a  deed ;  ^  and  it  is  held  that  a  payment  in  confederate 


not  for  courts  of  justice,  but  for 
the  party  himself.' "  That  a  deed 
for  attorney's  fees  will  not  be  set 
aside  where  the  consideration  was 
not  unfair  and  the  litigation  was 
long  and  difficult,  see  Fellows  v. 
Smith,  190  Pa.  St.  301,  42  Atl.  678. 

7  McKinley  v.  McKinley,  66  S. 
W.  831. 

8  Stevens  v.  Ozburn,  1  Tenn.  Ch. 
App.  213. 

9  Mayo's  Executor  v.  Carring- 
ton's  Executor,  19  Gratt.  74.  See, 
also,  Beverage's  Committee  v.  Rals- 
ton, 98  Va.  625,  37  S.  E.  283. 

1  Johnson  v.  Woodworth,  134 
App.  Div.  715,  119  N.  Y.  Supp.  146. 
It  is  said  that,  "it  is  not  essential 
that  the  consideration  should  be 
adequate  in  point  of  actual  value; 
that  it  is  sufficient  that  a  slight 
benefit  be  conferred  on  the  defend- 
ant, or  at  his  request  on  a  third 
person,  at  law ;  and  that  mere  folly 
and  weakness,  or  want  of  judg- 
ment, will  not  defeat  a  contract, 
even  in  equity,  when  the  folly  is 
not  so  extremely  gross  as  that, 
with  other  facts  in  corroboration, 
it  does  not  establish  a  case  for 
relief  on  the  ground  of  fraud." 
Whitney  v.  Stearns,  16  Me.  (4 
Shep.)  394,  396.     "It  is  not  always 


necessary  that  consideration  for  a 
promise  should  be  of  some  value 
to  the  promisor;  damage  or  incon- 
venience to  the  promisee  is  suf- 
ficient consideration,  and,  where 
the  court  can  see  that  there  may 
have  been  some  such  inconveni- 
ence, it  will  uphold  the  contract" : 
Williams  v.  Jensen,  75  Mo.  681, 
685.  "A  sufficient  consideration 
for  a  promise  arises  wherever,  by 
the  act  of  the  promisee,  a  benefit 
results  to  the  promisor,  or,  at  his 
request,  to  a  third  person,  or  if  a 
promisee  sustains  any  loss  of  in- 
convenience, or  subjects  himself 
to  any  charge  or  obligation,  at  the 
instance  of  the  promisor,  although 
such  promisor  obtains  no  advan- 
tage therefrom" :  Wilson  v.  Bap- 
tist Education  Soc.  (N.  Y.)  10 
Barb.  308,  313.  "Any  benefit  ac- 
cruing to  him  who  makes  the  prom- 
ise, or  any  loss,  trouble,  or  dis- 
charge undergone  by  or  charge  im- 
posed upon  him  to  whom  the  prom- 
ise is  made,  is  a  sufficient  consid- 
eration to  sustain  the  promise;  and 
hence,  in  the  absence  of  fraud, 
mere  inadequacy  of  consideration 
is  no  ground  for  avoiding  a  con- 
tract": Appeal  of  Clark,  19  Atl. 
332,    333,    57    Conn.    565,     (citing 


1470 


THE  LAW  OF  DEEDS. 


[chap.    XXIV. 


money  is  not  a  valuable  consideration,  and  that  a  grantee  pay- 
ing for  the  land  in  such  money  cannot  be  regarded  as  a  boiia 
fide  purchaser  for  a  valuable  consideration.^  Still  the  consid- 
eration paid  may  be  so  small  and  inadequate  as  to  justify  a 
suspicion  of  fraud.  It  is  said  "that  in  order  to  protect  him- 
self against  the  claim  of  a  prior  donee,  or  of  a  creditor,  the 
party  assuming  to  be  a  purchaser  for  a  valuable  consideration, 
must  prove  a  fair  consideration,  not  up  to  the  full  value,  but 
a  price  paid  which  would  not  cause  surprise,  or  make  anyone 
exclaim,  'he  got  the  land  for  nothing,  there  must  have  been 
some  fraud  or  contrivance  about  it !'  "  '  Where  all  the  cir- 
cumstances attending  the  transaction  show  that  the  grant  was 


1 


Smith's  Lectures  on  Contracts). 
"The  quantum  of  benefit  on  the  one 
hand,  or  the  loss  on  the  other, 
is  immaterial":  Cook  v.  Bradley,  7 
Conn.  57,  62,  18  Am.  Dec.  79.  "Any 
act  done  by  the  promisee  at  the 
request  of  the  promisor,  however 
trifling  the  loss  to  himself  or  the 
benefit  to  the  promisor,  is  a  suf- 
ficient consideration  for  a  promise 
made  without  fraud  and  with  full 
knowledge  of  all  the  circum- 
stances": Doyle  V.  Dixon,  97  Mass. 
208,  213,  93  Am.  Dec.  80;  Ballard 
V.  Burton,  64  Vt.  387,  16  L.R.A. 
664,  24  Atl.  769,  771.  "A  very 
slight  advantage  to  one  party,  or 
a  trifling  inconvenience  to  the  oth- 
er, is  a  sufficient  consideration  to 
support  a  contract  when  made  by 
a  person  of  good  capacity  who  is 
not  at  the  time  under  the  influence 
of  any  fraud,  imposition,  or  mis- 
take" :  Traphagen's  Exr.  v.  Voor- 
hees,  12  Atl.  895,  901,  44  N.  J.  Eq. 
(17  Stew.)  21  (citing  Harlan  v. 
Harlon,  20  Pa.  (8  Harris)  303). 
"In  respect  to  the  extent  of  the 
loss,    trouble,    or    inconvenience   to 


the  promisee,  it  is  immaterial  that 
it  is  of  the  most  trifling  descrip- 
tion, provided  it  be  not  utterly 
worthless  in  fact  and  law":  Clark 
V.   Sigourney,   17  Conn.  511,  517. 

2  Sutton  V.  Sutton,  39  Tex.  549; 
Willis  V.  Johnson,  38  Tex.  303. 

3  Worthy  v.  Caddell,  76  N.  C. 
82,  86.  Especially  where  inade- 
quacy of  consideration  is  coupled 
with  circumstances  of  imposition : 
Williams  v.  Longman,  (la.)  78  N. 
W.  198.  Where  an  attack  is  made 
upon  an  executed  conveyance,  the 
fact  that  the  consideration  is  gross- 
ly inadequate  can  be  regarded  only 
as  evidence  of  fraud,  and  of  itself 
is  not  sufficient  to  set  it  aside:  Da- 
vidson V.  Little,  22  Pa.  St.  245,  60 
Am.  Dec.  81.  And  see  Keagle  v. 
Pessell,  91  Mich.  618,  52  N.  W.  58. 
The  inadequacy  must  be  such  as  to 
show  fraud:  See  Driscoll  v.  Dris- 
coll,  143  Cal.  528,  77  Pac.  471; 
Walker  v.  Shepard,  210  111.  100,  71 
N.  E.  422 ;  Jacobsen  v.  Nealand, 
122  la.  372,  98  N.  W.  158;  Turner 
v.  Washburn,  (Ky.)  80  S.  W.  460; 
Shepherd   v.   Turner,    (Ky.)    97   S 


CHAP.    XXIV.] 


CONSIDERATION. 


1471 


intended  as  a  gift,  the  fact  that  the  grantee  actually  paid  a 
merely  nominal  consideration  in  money  will  not  cause  him 
to  be  treated  as  a  purchaser  for  a  valuable  consideration  within 
the  meaning  of  the  recording  laws,  and  he  is  not  entitled  to 
priority  over  a  prior  unrecorded  deed.*  While  a  partial  fail- 
ure of  consideration  may  be  insufficient,  even  as  between  the 
parties,    for   setting   aside  a   deed,^   nevertheless,   where   the 


W.  41 ;  Obst  V.  Unnerstall,  184  Mo. 
383,  83  S.  W.  450;  Rixey  v.  Rixey, 
103  Va.  414,  49  S.  E.  586. 

4  Ten  Eyck  v.  Witbeck,  135  N. 
Y.  40,  31  Am.  St.  Rep.  809.  In  that 
case  the  owner  of  a  farm  of  the 
value  of  twenty  thousand  dollars 
had  conveyed  it  to  his  wife,  and 
six  years  afterward  conveyed  it  to 
his  daughter.  The  deed  to  the 
daughter  stated  that  it  was  made  in 
consideration  of  the  sum  of  ten 
dollars,  and  the  payment  of  the  en- 
tire net  proceeds  of  the  farm  to 
the  grantor  annually  during  his 
lifetime,  and  one-third  of  such  pro- 
ceeds to  his  wife  in  case  she  sur- 
vived him,  one-third  to  another 
daughter  for  the  same  length  of 
time,  and  provided  for  disposing 
of  the  proceeds  in  a  specified  way 
in  other  contingencies,  and  the 
deed  also  gave  power  to  the  gran- 
tee to  sell  the  property  after  the 
grantor's  death.  The  second  deed 
was  recorded  first,  but  in  an  action 
of  ejectment,  it  was  held  to  be  no 
bar  to  an  action  of  ejectment  by 
those  claiming  under  the  first  deed. 
The  court  said:  "We  deem  it  un- 
necessary to  undertake  to  deter- 
mine here  what  degree  of  adequacy 
of  price  is  required  to  uphold  a 
subsequent  deed  first  recorded. 
Upon  this  branch   of  the  case  we 


have  no  occasion  to  go,  further 
than  to  hold  that  a  small  sum,  in- 
serted and  paid  perhaps  because  of 
a  popular  belief  that  some  slight 
money  consideration  is  necessary  to 
render  the  deed  valid,  will  not  of 
itself  satisfy  the  terms  of  the  stat- 
ute, where  it  appears  upon  the  face 
of  the  conveyance,  or  by  other  com- 
petent evidence,  that  it  was  not  the 
actual  consideration."  The  court 
states  that  the  cases  of  Fullenwider 
V.  Roberts,  4  Dev.  &  B.  27 ;  Worthy 
v.  Caddell,  76  N.  C.  82;  Upton  v. 
Bassett  Cro.  Eliz.  445;  Doe  v. 
Routledge,  Cowp.  705,  and  Metcalfe 
V.  Pulvertoft,  1  Ves.  &  B.  183,  in 
so  far  as  they  hold  that  a  purely 
nominal  consideration  is  insufficient 
to  protect  an  innocent  purchaser, 
are  in  harmony  with  the  views  ex- 
pressed by  the  court,  and  that  so 
far  as  the  cases  of  Webster  v.  Van 
Steenburgh,  46  Barb.  211,  and  Hen- 
dy  V.  Smith,  49  Hun,  510,  hold  a 
contrary  doctrine,  they  do  not  meet 
with  the  approval  of  the  court.  It 
is  held  that  where  property  worth 
eight  hundred  dollars  is  sold  for 
two  hundred  dollars,  the  inade- 
quacy of  consideration  will  not 
avoid  the  deed:  Feigley  v.  Feigley, 
7  Md.  537,  61  Am.  Dec.  375. 

SRipperdam   v.    Weldy,    149   Cal. 
667,  87  Pac.  276;  Jackson  v.  Jack- 


1472  THE  LAW  OF  DEEDS.  [CHAP.    XXIV. 

grantees  break  the  agreement  constituting  the  consideration, 
or  render  performance  impossible  by  their  wrongful  acts,  or, 
by  their  conduct  in  refusing  to  perform  their  part  of  the  con- 
tract, raise  a  presumption  of  fraud,  as  where  a  grantee  fails 
and  utterly  refuses  to  perform  his  agreement  to  support  the 
g-rantor,  in  consideration  of  which  the  deed  had  been  made, 
the  deed  may  be  set  aside.^^  In  a  recent  case  it  was  held  that 
a  man  who  had  conveyed  property  to  a  woman  in  consideration 
of  marriage  could  not  reclaim  the  property  on  account  of  a 
subsequent  estrangement,  although  a  part  of  the  considera- 
tion may  have  been  a  promise  on  the  part  of  the  wife  to  be 
kind  and  dutiful  and  use  the  property  for  their  joint  benefit, 
and  support  the  husband  in  his  old  age.^ 

§  815.     Antecedent    debts   as    consideration. — On    the 

question  of  whether  an  antecedent  debt  can  be  a  valuable  con- 
sideration, so  as  to  enable  the  grantee  to  claim  the  benefit  of 
being  a  bona  fide  purchaser,  there  has  been  a  wide  difference 
of  opinion.  In  many  cases  there  have  been  other  circumstances 
to  be  looked  to  besides  the  antecedent  debt  in  determining 
whether  the  grantee  is  a  purchaser  for  value.     There  may  be 

son,   222   111.    46,    78   N.    E.    19,   6  Henry,  (Tex.)  93  S.  W.  216;  Cum- 

L.R.A.(N.S.)    785.  mings  v.  Moore,  27  Tex.  Civ.  App. 

5a  McClelland  v.  McClelland,  176  555,  65  S.  W.  1113;  Bevins  v.  Keen, 

111.    83,     51     N.    E.    559;    Dorsey  (Ky.)    64    S.    W.   428.     See,   also, 

V.    Wolcott,     173    111.    539,    50    N.  Pironi  v.  Corrigan,   (N.  J.)  20  Atl. 

E.      1015;      Landfair     v.     Thomp-  218;  Donnelly  v.  Rafferty,  172  Pa. 

son,     112     Ga.     487,     37     S.     E.  St.  587,  33  Atl.  754;  Mack  v.  Pow- 

717;    Fabrice    v.    Von    Der    Brelie,  er   Co.,    101   Fed.  869,  42  C   C.   A 

190  111.  460,  60  N.  E.  835;   Sherrin  67;    Steffy  v.   Esley,  6  la.   228,   55 

V.  Flinn,  155  Ind.  422,  58  N.  E.  549;  Pac.  239;   Gillen  v.  Gillen,  238  111. 

Westerfield  v.  Pendleton,   (Ky.)  45  218,  87  N.  E.  388;  Gustin  v.  Crock- 

S.  W.  97;   Lane  v.  Lane,    106  Ky.  ett,    51    Wash.    67,    97    Pac.    1091; 

530,  50  S.  W.  857;  Bevins  v.  Keen,  Richerson  v.  Moody,    (Tex.)  42  S. 

(Ky.)  64  S.  W.  428;  Lockwood  v.  W.  317;    Mclntire  v.   Mclntire,   75 

Lockwood,  124  Mich.  627,  83  N.  W.  Neb.  397,  106  N.  W.  29. 
613;  Reoch  v.  Reoch,  98  Wis.  201,  6  Jackson  v.  Jackson,  222  III.  46, 

73  N.  W.  989;  Payette  v.  Ferrier,  6  L.R.A.(N.S.)  785,  78  S.  E.  19. 
20  Wash.  479,  55  Pac.  629;  Cecil  v. 


I 


CHAP.    XXIV.] 


CONSIDERATION. 


1473 


on  the  part  of  the  grantee  a  forbearance  from  suing,  from  en- 
forcing a  legal  right,  which  is  in  contemplation  of  law,  in 
many  instances,  a  sufficient  consideration  to  support  a  trans- 
fer. Where  the  creditors  of  an  owner  of  land  encumbered 
with  a  vendor's  lien  for  the  purchase  money,  took  a  deed  from 
him  without  advancing  any  new  consideration  as  security  for 
the  debts  of  the  owner  contracted  prior  to  his  purchase  of  the 
land  from  his  vendor,  the  title  of  the  creditors,  it  was  held, 
was  subject  to  the  lien  of  the  vendor.'  It  is  said  by  Denio, 
J.,  that,  "Where  a  conveyance  is  made,  or  a  security  taken, 
the  consideration  of  which  was  an  antecedent  debt,  the  grantee 
or  party  taking  the  security  is  not  looked  upon  as  a  bona  fide 
purchaser.  The  expression  in  the  statute  is  borrowed  from 
the  language  of  courts  of  equity,  and  must  be  interpreted  in 


■'Johnson  v.  Graves,  27  Ark.  557. 
The  court,  per  Stephenson,  J.,  said : 
"The  object  of  the  law  in  all  ques- 
tions arising  between  vendor  and 
vendee  respecting  the  equitable  lien 
of  the  former,  is  to  give  the  ven- 
dor the  benefit  of  his  lien  as  against 
the  vendee  and  those  holding  un- 
der him  having  notice  of  the  lien, 
but  to  save  him  harmless  whose 
money  has  been  advanced  in  good 
faith  without  this  notice,  and  upon 
the  vendor's  declaration  in  his  deed. 
Let  us  apply  this  principle  to  the 
case  at  the  bar.  The  vendee.  Bell, 
executes  to  Johnston  his  deed  of 
trust,  to  secure  certain  of  his  cred- 
itors, which  debts  he  had  contract- 
ed prior  to  his  purchase  of  the  land 
from  Graves.  This  deed,  at  most, 
gives  but  an  equitable  title  to  Bell's 
creditors,  and  which  they  must  pro- 
ceed to  execute  before  they  can 
gain  the  legal  title.  They  have  by 
taking  this  security  in  nowise  im- 
paired Bell's  liability  to  them,  but 
would  have  all  the  remedy,  after 
Deed3,  Vol.  II.— 93 


taking  this  security,  they  had  be- 
fore. Nor  are  they  in  worse  con- 
dition by  giving  the  vendor,  Graves, 
priority  over  them  than  they  were 
when  they  gave  Bell  the  credit.  If 
they  had  taken  the  land  in  satis- 
faction of  the  debt,  or  had  made 
advances  upon  the  faith  of  the  title 
as  it  appeared  of  record,  they 
would  have  occupied  a  different 
attitude  in  the  case;  but  where 
creditors  of  the  vendee  take  a  con- 
veyance from  him  merely  as  securi- 
ty for  their  antecedent  debts,  with- 
out advancing  any  new  considera- 
tion, they  are  postponed  to  the 
rights  of  the  vendor:  2  Wash.  Real 
Prop.  (2d  ed.  89)  ;  Brown  v.  Van- 
lier,  7  Humph.  249;  Harris  v.  Hor- 
ner, 1  Dev.  &  B.  Eq.  455,  30  Am. 
Dec.  182;  Eubanks  v.  Poston,  5 
Mon.  286;  McGown  v.  Yerks,  6 
Johns.  Ch.  450;  Chance  v.  Mc- 
Whorter,  26  Ga.  315;  Repp  v.  Repp, 
12  Gill.  &  J.  341 ;  Dickinson  v.  Til- 
linghast,  4  Paige,  215,  25  Am.  Dec. 
528." 


1474 


THE  LAW  OF  DEEDS. 


[chap.    XXIV. 


the  sense  in  which  it  is  there  understood ;  and  it  is  well  settled 
that  a  grantee  or  encumbrancer  who  does  not  advance  any- 
thing at  the  time,  takes  the  interest  conveyed,  subject  to  any 
prior  equity  attaching  to  the  subject."  '  In  a  case  in  Kan- 
sas, the  rule  that  a  party  Vv^ho  takes  a  deed  in  payment  of  a  pre- 
existing debt  is  not  a  bona  fide  purchaser,  is  held  to  be  applica- 
ble only  where  the  property  is  purchased  from  an  apparent 
owner,  but  who  is  not  such,  in  fact,  or  who  is  not  in  law  or  eq- 
uity the  real  owner,  and  not  applicable  where  the  purchaser 
takes  the  property  in  good  faith  from  the  true  owner,  in  consid- 
eration of  the  relinquishment  of  a  pre-existing  debt.'  A  pre- 
existing debt  is  not  such  a  consideration  as  will  support  the 
claim  that  the  creditor  is  a  bona  fide  purchaser.*  If  a  grantor 
has  been  induced  to  convey  by  fraud  a  purchaser  who  takes 


« In  Wood  V.  Robinson,  22  N.  Y. 
564,  567.  And  see,  also,  in  support 
of  this  view  or  relating  to  it,  Cary 
V.  White,  52  N.  Y.  138;  Craft  v. 
Russell,  67  Ala.  9;  Mingus  v.  Con- 
dit,  23  N.  J.  Eq.  (8  Green,  C.  E.) 
313;  Sweeney  v.  Bixler,  69  Ala. 
539;  Halstead  v.  Bank  of  Ken- 
tucky, 4  Marsh.  J.  J.  554;  Ashton's 
Appeal,  7Z  Pa.  St.  153;  Metrop. 
Bank  V.  Godfrey,  23  111.  579;  Man- 
hattan Co.  V,  Everston,  6  Paige, 
457;  Pancoast  v.  Duval,  26  N.  J. 
Eq.  445 ;  Upshaw  v.  Hargrove,  6 
Smedes  &  M.  286;  Morse  v.  God- 
frey, 3  Story,  364;  Alexander  v. 
Caldwell,  55  Ala.  517;  Gafford  v. 
Stearns,  51  Ala.  434;  Boon  v. 
Barnes,  23  Miss.  136;  Wheeler  v. 
Kirtland,  24  N.  J.  Eq.  552;  Short 
V.  Battle,  52  Ala.  456;  Padgett  v. 
Lawrence,  10  Paige,  170,  40  Am. 
Dec.  232;  Haynsworth  v.  Bischofif, 
6  Rich.  159;  Van  Heusen  v.  Rad- 
cliff,  17  N.  Y.  580,  72  Am.  Dec.  480 ; 
Weaver  v.  Barden,  49  N.  Y.  286; 
Thurman  v.  Stoddard,  63  Ala.  336; 


Jones    v.    Robinson,    77    Ala.    499; 
Wells    v.    Morrow,    38    Ala.    125; 
Spurlock  v.  Sullivan,  36  Tex.  511 ; 
Swenson  v.  Seale  (Tex.  Civ.  App.), 
May  9,  1894),  28  S.  W.  Rep.  143; 
Overstreet    v.    Manning,    67    Tex. 
657,  4  S.  W.  Rep.  448;  Steffian  v. 
Bank,   69  Tex.   513,  6  S.   W.   Rep. 
823;  Golson  v.  Fielder,  2  Tex.  Civ. 
App.  400,  21  S.  W.  Rep.  173;  Phelps 
V.  Fockler,  61  Iowa,  340,  14  N.  W. 
Rep.  729,  16  N.  W.  Rep.  210 ;  Koon 
V.  Tramel,  71  Iowa,  132,  32  N.  W 
Rep.    243;    Edwards   v.    McKernan 
55  Mich.  520,  22  N.  W.  Rep.  20 
Boxheimer  v.  Gunn,  24  Mich.  372 
Moore    v.    Ryder,    65    N.    Y.    438 
Wood  V.  Robinson,  22  N.  Y.  564 
Dickerson   v.   Tillinghast,  4   Paige^ 
215,  25   Am.  Dec.  528;   Weaver  v, 
Barden,  49  N.  Y.  286;  De  Lancey 
V.  Stearns,  66  N.  Y.  157. 

9  Ruth  V.  Ford,  9  Kan.  17. 

1  Huff  V.  Maroney,  23  Tex.  Civ. 
App.  465,  56  S.  W.  754;  Sparks  v. 
Taylor,  90  Tex.  411,  6  L.R.A.(N.S.) 
381.  90  S.  W.  485. 


CHAP.    XXIV.] 


CONSIDERATION. 


1475 


the  land  in  satisfaction  of  a  pre-existing  debt  is  not  a  botia  fide 
purchaser.^  A  creditor  who  surrenders  a  judgment  against 
the  grantor  for  a  deed,  accepted  as  an  absohite  payment  of 
the  greater  part  of  the  claim  is  not  a  bona  Ude  purchaser.^ 
But  the  surrender  of  some  other  security  for  a  pre-existing 
debt  will  be  a  good  consideration.* 


8  Hirsch  v.  Jones  (Tex.  Civ. 
App.)  42  S.  W.  604.  See,  also,  as 
to  antecedent  debts :  Adamson  v. 
Souder,  205  Pa.  498,  55  Atl.  182; 
Catrelt  v.  Brown  Hardware  Co. 
(Tex.  Civ.  App.)  86  S.  W.  1045; 
Lillibridge  v.  Allen,  100  Iowa,  582, 
69  N.  W.  1031;  Williams  v.  Wil- 
liams, 118  Mich.  477,  76  N.  W.  1039. 

3Howells  v.  Hettrick,  160  N.  Y. 
308,  54  N.  E.  367.  See,  also.  Free- 
man V.  Tinsley  (Tex.  Civ.  App.) 
40  S.  W.  835.  A  mortgagee  cannot 
claim  protection  as  a  bona  fide  pur- 
chaser where  the  mortgage  is  taken 
as  security  for  a  pre-existing  debt: 
Durham  v.  Craig,  79  Ind.  117;  Ad- 
ams V.  Vanderbeck,  148  Ind.  92,  45 
N.  E.  645,  47  N.  E.  24,  62  Am.  St 
Rep.  497;  Martinsville  First  Nat 
Bank  v.  Connecticut  Mut.  Life  Ins 
Co.,  129  Ind.  241,  28  N  .E.  695 
Anthe  v.  Heide,  85  Ala.  236,  4  So, 
380;  Banks  v.  Long,  79  Ala.  319; 
Craft  V.  Russell,  67  Ala.  9;  Marsh 
V.  Ramsay,  57  S.  C.  121,  35  S.  E. 
433;  Breed  v.  Auburn  Nat.  Bank, 
171  N.  Y.  648,  63  N.  E.  1115;  Young 
V.  Guy,  87  N.  Y.  467;  Smith  v. 
Moore,  112  Iowa,  60,  83  N.  W. 
813;  Holmes  v.  Stix,  104  Ky.  351,47 
S.  W.  243 ;  Martin  v.  Bowen,  51  N.  J. 
Eq.  452, 26  AtL  823 ;  Spurlock  v.  Sul- 
livan, 36  Tex.  511 ;  Stacey  v.  Henke, 
32  Tex.  Civ.  App.  462,  74  S.  W.  925  ; 
Small  v.  Small,  74  N.  C.  16;  South- 
erland  v.   Fremont,   107  N.  C.  565, 


12  S.  E.  237;  Collins  v.  Moore,  115 
Ga.  327,  41  S.  E.  609;  Salisbury  Sav. 
Soc.  V.  Cutting,  50  Conn.  113. 

*  Constant  v.  Rochester  Univer- 
sity, 111  N.  Y.  604,  2  L.R.A.  734,  19 
N.  E.  631,  7  Am.  St.  Rep.  769;  Wil- 
son V.  Knight,  59  Ala.  172.  Where 
a  promissory  note  is  taken  for  a 
pre-existing  indebtedness  it  is  held 
in  some  states  that  it  is  taken  for 
a  valuable  consideration  so  as  to 
render  the  payee  a  bona  fide  hold- 
er under  the  meaning  of  the  law 
of  commercial  paper:  Payne  v. 
Bensley,  8  Cal.  260,  68  Am.  Dec. 
318;  Robinson  v.  Smith,  14  Cal. 
94;  Naglee  v.  Lyman,  14  Cal.  450; 
Sackett  v.  Johnson,  54  Cal.  107; 
Prim  v.  Hammel,  134  Ala.  652,  32 
So.  1006,  92  Am.  St.  Rep.  52 ;  Har- 
aszthy  v.  Shandel,  1  Colo.  App.  137, 
27  Pac.  876;  Murphy  v.  Gumaer, 
12  Colo.  App.  472,  55  Pac.  951; 
Merchants  Bank  v.  McClelland,  9 
Colo.  608,  13  Pac.  723;  Bruch  v. 
Scribner,  11  Conn.  388,  29  Am.  Dec. 
303;  Bridgeport  City  Bank  v. 
Welch,  29  Conn.  475 ;  Osgood  v. 
Thompson  Bank,  30  Conn.  27 ; 
Rockville  Nat.  Bank  v.  Citizens' 
Gas  Light  Co.,  72  Conn.  576,  45  Atl. 
361 ;  Leach  v.  Lewis,  1  Mac  Arthur 
(D.  C.)  112;  Gibson  v.  Conner,  3 
Ga.  47;  Meadow  v.  Bird,  22  Ga. 
246 ;  Bealle  v.  Southern  Bank,  57 
Ga.  274;  Partridge  v.  Williams,  72 
Ga.  807;  Smith  v.  Jennings,  74  Ga. 


1476 


THE  LAW  OF  DEEDS. 


[chap.    XXIV. 


§  816.     The  other  view. — In  California,  it  is  held  that 
where  a  mortgage  is  given  as  security  for  a  pre-existing  debt, 


551;  Laster  v.  Stewart,  89  Ga.  181, 
15  S.  E.  42;  Kaiser  v.  U.  S.  Nat. 
Bank,  99  Ga.  258,  25  S.  E.  620; 
Walden  v.  Downing,  4  Ga.  App. 
534,  61  S.  E.  1127;  Olney  First  Nat. 
Bank  v.  Beaird,  3  111.  App.  239; 
Vanliew  v.  Galesburg  Second  Nat. 
Bank,  21  111.  App.  126;  Bemis  v. 
Horner,  62  111.  App.  38;  Mayo  v. 
Moore,  28  111.  428;  Conkling  v. 
Vail,  31  111.  166;  Manning  v.  Mc- 
Clure,  36  III.  490;  Lull  v.  Stone, 
2,7  111.  224;  Saylor  v.  Daniels,  37 
111.  331,  87  Am.  Dec.  250;  Bowman 
V.  Millison,  58  111.  36;  Doolittle  v. 
Cook,  75  111.  354;  Worcester  Nat. 
Bank  v.  Cheney,  87  111.  602;  Mix 
V.  Bloomington  Nat.  Bank,  91  111. 
20,  33  Am.  Rep.  44;  Joliet  First 
Nat.  Bank  v.  Adams,  138  III.  483,  28 
N.  E.  955;  Peigh  v.  Huffman,  6 
Ind.  App.  658,  34  N.  E.  32;  Rowe 
V.  Haines,  15  Ind.  445,  77  Am.  Dec. 
101 ;  Straughan  v.  Fairchield,  80 
Ind.  598;  Proctor  v.  Baldwin,  82 
Ind.  370;  Spencer  v.  Sloan,  108  Ind. 
183,  9  N.  E.  150,  58  Am.  Rep.  35; 
Voss  V.  Chamberlain,  139  Iowa, 
569,  19  L.R.A.(N.S.)  106,  117  N. 
W.  269;  Best  v.  Crall,  23  Kan.  482, 
33  Am.  Rep.  185;  Birket  v.  Edward, 
68  Kan.  295,  64  L.R.A.  568,  74  Pac. 
1100,  104  Am.  St.  Rep.  405;  Mallard 
V.  Aillet,  6  La.  Ann.  92;  Nott  v. 
Watson,  11  La.  Ann.  664;  Citizens' 
Bank  v.  Payne,  18  La.  Ann.  222,  89 
Am.  Dec.  650 ;  Dolhonde's  Succes- 
sion, 21  La.  Ann.  3;  La.  Ann.  State 
Bank  v.  Gaiennie,  21  La.  Ann.  555 ; 
Smith  V.  Isaacs,  23  La.  Ann.  454; 
Giovanovich  v.  Citizens'  Bank,  26 
La.  Ann.  15 ;  Levi  v.  Ford,  41  La. 


Ann.  873,  6  So.  671 ;  Guinn  v.  Lee, 
9  Gill  (Md.)  137;  Maitland  v.  Cit- 
izens' Nat.  Bank,  40  Md.  540,  17 
Am.  Rep.  620;  Buchanan  v.  Me- 
chanics Loan,  etc.  Inst.,  84  Md.  430, 

35  Atl.  1099;  Merrian  v.  Granite 
Bank,  8  Gray  (Mass.)  254;  Cicopee 
Bank  v,  Chapin,  8  Mete.  (Mass.) 
40;  Blanchard  v.  Stevens,  3  Cush. 
(Mass.)  162,  50  Am.  Dec.  723; 
Stoddard  v.  Kimball,  4  Cush. 
(Mass.)  604;  Williams  v.  Cheney, 
3  Gray  (Mass.)  215;  Culver  v.  Ben- 
edict, 13  Gray  (Mass.)  7;  Gardner 
V.  Gager,  1  Allen  (Mass.)  502;  Le- 
Breton  v.  Peirce,  2  Allen  (Mass.) 
8,  1  Am.  L.  Reg.  N.  S.  35;  Fish- 
er v.  Fisher,  98  Mass.  303;  Lindsay 
v.  Chase,  104  Mass.  253;  Lee  v. 
Whitney,  149  Mass.  447,  21  N.  E. 
948;  Nat.  Revere  Bank  v.  Morse, 
163  Mass.  383,  40  N.  E.  180;  St. 
Paul  Nat.  Bank  v.  Cannon,  46  Minn. 
95,  48  N.  W.  526,  24  Am.  St.  Rep. 
189;  Rosemond  v.  Graham,  54 
Minn.  323,  56  N.  W.  38,  40  Am.  St. 
Rep.  336;  Haugan  v.  Sunwall,  60 
Minn.  367,  62  N.  W.  398;  Fair  v. 
Howard,  6  Nev.  304;  Allaire  v. 
Hartshorne,  21  N.  J.  L.  665,  47  Am. 
Dec.  175;  Hamilton  v.  Vought,  34 
N.  J.  L.   187;   Armour  v.   Michael 

36  N.  J.  L.  92;  Harris  v.  Horner 
21    N.    C.    455,    30   Am.    Dec.    182 
Holderby    v.    Blum,   22    N.    C.    51 
Potts  V.   Blackwell,  56  N.   C.  449 
Brooks  V.  Sullivan,  129  N.  C.   190 
39  S.  E.  822;  Bank  of  Republic  v, 
Carrington,    5    R.    I.    515,    7Z    Am 
Dec.  83 ;  Cobb  v.  Doyle,  7  R.  I.  550 
Charleston    Bank    v.    Chambers,    11 
Rich.     (S.    C.)    657;    Woodsen    t. 


CHAP.    XXIV.] 


CONSIDERATION. 


1477 


the  morigagee  is  a  purchaser   for  a  vahiable  consideration 


Owens  (Miss.  1892)  12  So.  207; 
Richardson  v.  Rice,  9  Baxt. 
(Tenn.)  290,  40  Am.  Rep.  92; 
Trigg  V.  Saxton  (Tenn.  Ch.  1896) 
Z7  S.  W.  567;  Van  Wyck  v.  Nor- 
vell,  2  Humph.  (Tenn.)  192;  King 
V.  Doolittle,  1  Head  (Tenn.)  77; 
Vatterlien  v.  Howell,  5  Sneed 
(Tenn.)  441 ;  Gosling  v.  Griffin,  85 
Tenn.  72,7,  3  S.  W.  642;  Marx  v. 
Dreyfus  (Tex.  Civ.  App.  1894) 
26  S.  VV.  232,  853;  Alexander  v. 
Lebanon  Bank,  19  Tex.  Civ.  App. 
620, 47  S.  W.  840 ;  Bruce  v.  Weather- 
ford  First  Nat.  Bank  (Tex.  Civ. 
App.  1901)  60  S.  W.  1006;  Gren- 
eaux  V.  Wheeler,  6  Tex.  515;  Kauff- 
man  v.  Robey,  60  Tex.  308,  48  Am. 
Rep.  264;  Texas  Banking  etc.  Co.  v. 
Turnley,  61  Tex.  365 ;  Brown  v. 
Thompson,  79  Tex.  58,  15  S.  W. 
168;  Herman  v.  Gunter,  83  Tex.  66, 

18  S.  W.  428,  29  Am.  St.  Rep.  632; 
Wright  V.  Hardie,  88  Tex.  653,  32 
S.  W.  885;  Sawyer  v.  Cutting,  22> 
Vt.  486;  Atkinson  v.  Brooks,  26 
Vt.  569,  62  Am.  Dec.  592 ;  Griswold 
V.  Davis,  31  Vt.  390;  Arnold  v. 
Sprague,  34  Vt.  402;  Pinney  v. 
Kimpton,  46  Vt.  80;  People's  Nat. 
Bank  v.  Clayton,  66  Vt.  541,  29 
Atl.  1020 ;  Prentice  v.  Zane,  2  Gratt. 
( Va.)  262 ;  Peters  v.  Gay,  9  Wash. 
383,  37  Pac.  325;  Hotchkiss  v.  Fitz- 
gerald Patent  Prepared  Plaster  Co., 
41  W.  Va.  357,  23  S.  E.  576;  In  re 
Huddell,  12  Fed.  Cas.  No.  6,825,  8 
Wkly.  Notes  Cas.  (Pa.)  407;  Pugh 
V.  Durfee,  1  Blatchf.  (U.  S.)  412, 
20  Fed.  Cas.  No.  11,460;  Wood  v. 
Seitzinger,  2  Fed.  843;  Metropolis 
Bank  v.   Jersey   City    1st   Nat.    Bk. 

19  Fed.  301;  Circleville  First  Nat. 


Bk.  V.  Monroe  Bk.,  33  Fed.  408; 
Townseley  v.  Sumerall,  2  Pet.  (U. 
S.)  170,  7  L.  ed.  386;  Swift  v.  Ty- 
son, 16  Pet.  (U.  S.)  1,  10  L.  ed. 
865 ;  Goodman  v.  Simmonds,  20 
How.  (U.  S.)  343,  15  L.  ed.  934; 
McCarty  v.  Roots,  21  How.  (U.  S.) 
432,  16  L.  ed.  162;  Brooklyn  City 
etc.  R.  Co.  v.  Nat.  Bk.  of  Republic, 
102  U.  S.  14,  26  L.  ed.  61 ;  Ameri- 
can File  Co.  v.  Garrett,  110  U.  S. 
288,  4  Sup.  Ct.  90,  28  L.  ed.  149. 
In  other  states,  the  rule  announced 
is  that  a  pre-existing  indebtedness 
is  not  sufficient  to  constitute  the 
payee  in  a  promissory  note  a  hold- 
er for  value :  Wallace  v.  Mobile 
Branch  Bank,  1  Ala.  565;  Collum  v. 
Mobile  Branch  Bk.  4  Ala.  21,  37 
Am.  Dec.  725 ;  Marston  v.  For- 
ward, 5  Ala.  347;  Mobile  Bk.  v. 
Hall,  6  Ala.  639,  41  Am.  Dec.  72; 
Thompson  v.  Armstrong,  7  Ala. 
256;  Andrews  v.  McCoy,  8  Ala. 
920,  42  Am.  Dec.  669 ;  Boyd  v.  Mc- 
Ivor,  11  Ala.  822;  McKenzie  v. 
Montgomery  Branch  Bk.,  28  Ala. 
606,  65  Am.  Dec.  369;  Fenouille  v. 
Hamilton,  35  Ala.  319;  Wagner  v. 
Simmons,  61  Ala.  143;  Mobile  Bk. 
V.  Poulniticz,  61  Ala.  147;  Loeb  v. 
Peters,  63  Ala.  243,  35  Am.  Rep.  17 ; 
Connerly  v.  Placters  etc.  Ins.  Co., 
66  Ala.  432;  Miller  v.  Boykin,  70 
Ala.  469;  Boykin  v.  Mobile  Bk.,  72 
Ala.  262,  47  Am.  Rep.  408;  Marks 
V.  Montgomery  First  Nat.  Bk.,  79 
Ala.  550,  58  Am.  Rep.  620;  Haden 
V.  Lehman,  83  Ala.  243,  3  So.  528; 
Vann  v.  Marbury,  100  Ala.  438  23 
L.R.A.  325,  14  So.  273,  56  Am.  St. 
Rep.  70;  Thompson  v.  Maddux, 
117  Ala.  468,  23  So.  157;  Bertrand 


1478 


THE  LAW  OF  DEEDS. 


[chap.    XXIV. 


within  the  meaning  of  the  registry  acts,  giving  priority  to  the 


V.  Barkman,  13  Ark.  ISO;  Iowa  Col- 
lege V.  Hill,  12  Iowa,  462;  R3'an  v. 
Chew,  13  Iowa,  589;  Ruddick  v. 
Lloyd,  15  Iowa,  441,  83  Am.  Dec. 
423;  Van  Pattoii  v.  Beals,  46  Iowa, 
62;  Union  Nat.  Bk.  v.  Barber,  56 
Iowa,  559,  9  N.  W.  890;  Bone  v. 
Tharp,  63  Iowa,  223,  18  N.  W.  906 ; 
Noteboom  v.  Watkins,  103  Iowa, 
580,  72  N.  W.  766;  Keokuk  County 
State  Bank  v.  Hall,  106  la.  540,  76 
N.  W.  8325  L«e  v.  Snead,  1  Mete. 
(Ky.)  628,  71  Am.  Dec.  494;  Alex- 
ander V.  Springfield  Bk.,  2  Mete. 
(Ky.)  534;  May  v.  Quimby,  3 
Bush.  (Ky.)  96;  Greenbaum  v.  Me- 
gibben,  10  Bush.  (Ky.)  419;  Gow- 
en  V.  Wentworth,  17  Me.  66;  Smith 
V.  Hiscock,  14  Me.  449 ;  Bramhall  v. 
Beckett,  31  Me.  205 ;  Nutter  v.  Stov- 
er, 48  Me.  163;  Smith  v.  Bibber, 
82  Me.  34,  19  Atl.  89,  17  Am.  St 
Rep.  464;  Henriques  v.  Ypsilanti 
Sav.  Bank,  84  Mich.  168,  47  N.  W. 
558;  Dowagiae  City  Bank  v.  Dill,  84 
Mich.  549,  47  N.  W.  1019;  May- 
nard  v.  Davis,  127  Mich.  571,  8  De- 
troit Leg.  N.  460,  86  N.  W.  1051 ; 
Holmes  v.  Carmen,  Freem.  Ch. 
(Miss.)  408;  Harney  v.  Pack,  4  Sm. 
&  M.  (Miss.)  229;  Brooks  v.  Whit- 
som,  7  Sm.  &  M.  (Miss.)  513; 
Pope  v.  Pope,  40  Miss.  516;  Mc- 
Leod  V.  First  Nat.  Bk.,  42  Miss.  99 ; 
Perkins  v.  Swank,  43  Miss.  349; 
Hinds  V.  Pugh,  48  Miss.  268 ;  Meri- 
dian First  Nat.  Bk.  v.  Strauss,  66 
Miss.  479,  6  So.  232,  14  Am.  St. 
Rep.  579;  Terry  v.  Hickman,  1  Mo. 
App.  119;  Brainard  v.  Reavis,  2 
Mo.  App.  490;  Hodges  v.  Black,  8 
Mo.  App.  389;  Feder  v.  Abrahams, 
28  Mo.  App.  454;  Conrad  v.  Fisher, 


yi  Mo.  App.  352,  8  L.R.A.  147; 
Wells  V.  Jones,  41  Mo.  App.  1 ;  Na- 
pa Valley  Wine  Co.  v.  Rinchart,  42 
Mo.  App.  171 ;  Goodman  v.  Si- 
monds,  19  Mo.  106;  Logan  v. 
Smith,  62  Mo.  455;  Davis  v.  Car- 
son, 69  Mo.  609;  Deere  v.  Mars- 
den,  88  Mo.  512;  Crawford  v. 
Spencer,  92  Mo.  498,  4  S.  W.  713, 
1  Am.  St.  Rep.  745 ;  Boatman's  Sav. 
Inst.  V.  Holland,  38  Mo.  49;  Grant 
V.  Kidwell,  30  Mo.  455;  Loewen  v. 
Forsee,  137  Mo.  29,  38  S.  W.  712, 
59  Am.  St.  Rep.  489;  Jenness  v. 
Bean,  10  N.  H.  266,  34  Am.  Dec. 
152;  Wilhams  v.  Little,  11  N.  H. 
66;  Fletcher  v.  Chase,  16  N.  H.  38; 
Rice  V.  Raitt,  17  N.  H.  116;  Web- 
ster V.  Howe  Mach.  Co.  54  Conn. 
394,  8  Atl.  482;  Wardell  v.  Howell, 
9  Wend.  (N.  Y.)  170;  Rosa  v. 
Brotherson,  10  Wend.  (N.  Y.)  85; 
Hart  V.  Palmer,  12  Wend.  (N.  Y.) 
523 ;  Ontario  Bank  v.  Worthington, 
12  Wend.  (N.  Y.)  593;  Manhattan 
Co.  V.  Reynolds,  2  HiU  (N.  Y.) 
140;  Stalker  v.  McDonald,  6  Hill 
(N.  Y.)  9\  40  Am.  Dec.  389;  Dean 
V.  Howell  Lalor  (N  Y.)  39;  Scott 
V.  Betts,  Lalor  (N.  Y.)  363;  Small 
v.  Smith,  1  Den.  (N.  Y.)  583;  Carl- 
son V.  Winterson,  3  Misc.  (N.  Y.) 
63,  22  N.  Y.  Suppl.  553,  51  N.  Y. 
St.  775 ;  Furniss  v.  Gilchrist,  1 
Sandf.  (N.  Y.)  SZ;  Femby  v. 
Pritehard,  2  Sandf.  (N.  Y.)  151; 
White  V.  Springfield  Bank,  3  Sandf. 
(N.  Y.)  222;  N.  Y.  Ex.  Co.  v.  De- 
Wolfe,  3  Bosw.  (N.  Y.)  86;  Dun- 
can ^  Gosche,  8  Bosw.  (N.  Y.)  243, 
21  How.  Pr.  (N.  Y.)  344;  Mickles 
V.  Colvin,  4  Barb.  (N.  Y.)  304; 
Farrington  v.   Frankfort  Bank,  24 


CHAP,    XXIV.] 


CONSIDERATION, 


1479 


one  who  conveyance  Is  first  recorded.*  In  a  case  in  Missis- 
sippi, the  court  said:  "It  is  now  well  settled  that  if  a  party 
take  a  security  or  specific  property  in  satisfaction  and  dis- 


Barb.  (N.  Y.)  554;  Prentiss  v. 
Graves,  33  Barb.  (N.  Y.)  621; 
Cardwell  v.  Hicks,  2,7  Barb.  (N. 
Y.)  458;  Ocean  Bank  v.  Dill,  39 
Barb.  (N.  Y.)  577;  Chesb rough  v. 
Wright,  41  Barb.  (N.  Y.)  28;  Trad- 
er's Bank  v.  Bradner,  43  Barb.  (N. 
Y.)  379;  West  v.  Am.  Ex.  Bank. 
44  Barb.  (N.  Y.)  175;  American 
Ex.  Bank  v.  Corliss,  46  Barb.  (N. 
Y.)  19;  Buhrman  v.  Baylis,  14 
Hun  (N.  Y.)  608;  Lintz  v.  How- 
ard, 18  Him  (N.  Y.)  424;  Ayres  v. 
Doying,  42  Hun  (N.  Y.)  630;  State 
Nat.  Bank  v.  Coykendall,  58  Hun 
(N.  Y.)  205,  12  N.  Y.  Suppl.  334, 
34  N.  Y.  St.  432;  Larbig  v.  Peck, 
69  N.  Y.  App.  Div.  170,  74  N.  Y. 
Suppl.  602;  Scott  v.  Ocean,  Bank, 
23  N.  Y.  289;  Lawrence  v.  Clark, 
36  N.  Y.  128;  Jones  v.  Schreyer,  49 
N.  Y.  674;  Turner  v.  Treadway, 
53  N.  Y.  650;  Atlantic  Nat.  Bank 
V.  Franklin,  55  N.  Y.  235 ;  Comstock 
V.  Hier,  73  N.  Y.  269,  29  Am.  Rep. 
142;  Potts  V.  Mayer,  74  N.  Y.  594; 
Porter  v.  Andrus,  10  N.  D.  558,  88 
N.  W.  567;  Sutton  v.  Kautsman,  6 
Ohio  Dec.  (Reprint)  910,  8  Am. 
L.  Rec.  658;  Riley  v.  Johnson,  8 
Ohio,  526;  Roxborough  v.  Messick, 
6  Ohio  St.  448,  67  Am.  Dec.  346; 
Reznor  v.  Hatch,  7  Ohio  St.  248; 
Gebhart  v.  Sorrels,  9  Ohio  St.  461 ; 
Copeland  v.  Manton,  22  Ohio  St. 
398;  Pitts  v.  Foglesong,  37  Ohio 
St.  676,  41  Am.  Rep.  540;  Secor  v. 
Witter,  39  Ohio  St.  218;  Union 
Trust  Co.  V.  Clellan,  40  W.  Va.  405, 
21  S.  E.  1025;  Conrad  v.  Lane,  1 
PhilUp  (Pa.)  72,  7  Leg.  Int.  (Pa.) 


110;  Boyer  v.  Dickson,  7  Phila. 
(Pa.)  190;  United  States  Trust  Co. 
V.  Hart,  3  Pa.  Co.  Ct  270;  Gleason 
V.  Crider,  14  Pa.  Co.  Ct.  670;  Oak- 
ford  V.  Johnson,  2  Miles  (Pa.)  203: 
Jackson  v.  Polack,  2  Miles,  (Pa.) 
362;  Petrie  v.  Clark,  11  Serg.  &  R. 
(Pa.)  377,  14  Am.  Dec.  636 ;  Depeau 
V.  Waddington,  6  Whart.  (Pa.)  220, 
36  Am.  Dec.  216;  Kirkpatrick  v. 
Muirhead,  16  Pa.  St.  117;  Lcnheim 
V.  Wilmarding,  55  Pa.  St.  72 ;  Bron- 
son  V.  Silverman,  77  Pa.  St.  94 
Smith  V.  Hoagland,  78  Pa.  St.  252 
Clarion  First  National  Bank  v 
Gregg,  79  Pa.  St.  384;  Royer  v. 
Keystone  Nat.  Bk.,  83  Pa.  St.  248 
Cummings  v.  Boyd,  83  Pa.  St.  372 
Bardsley  v.  Belp,  88  Pa.  St.  420 
Penn.  Bank  v.  Prankish,  91  Pa.  St. 
339;  Maynard  v.  Phila.  Sixth  Nat 
Bk.,  98  Pa.  St.  250;  Carpenter  v. 
Nat.  Bk.  of  Republic,  106  Pa.  St. 
170;  Liggett  Spring  etc.  Co.  Ap- 
peal, 111  Pa.  St.  291,  2  Atl.  684; 
Altoona  Second  National  Bank  v. 
Dunn,  151  Pa.  St.  228,  25  Atl.  80, 
31  Am.  St.  Rep.  742;  Prentice  v. 
Zane,  2  Gratt.  (Va.)  262;  Jenkins 
V.  Schaub,  14  Wis,  1;  Bowman  v. 
VanKuren,  29  Wis.  209,  19  Am. 
Rep.  554;  Body  v.  Jewsen,  33  Wis. 
402;  Knott  v.  Tidyman,  86  Wis. 
164,  56  N.  W.  632;  Black  v.  Tar- 
bell,  89  Wis.  390,  61  N.  W.  1106; 
Burnham  v.  Merchants  Exchange 
Bank,  92  Wis.  277,  66  N.  W.  510. 

6Frey  v.  Clifford,  44  Cal.  335. 
And  see,  as  to  commercial  paper, 
Payne  v.  Bensley,  8  Cal.  260,  68  Am. 
Dec.    318;    Robinson   v.    Smith,    14 


1480 


THE  LAW  OF  DEEDS. 


[chap.    XXIV. 


I 


charge  of  a  pre-existing  debt,  which  is  thereby  extinguished, 
he  is  a  bona  Me  purchaser,  and  not  affected  by  previous  equi- 
ties." "  And  hkewise  in  Alabama,  where  a  creditor  takes  an 
absolute  deed  in  payment  of  a  pre-existing  debt,  he  becomes 
a  purchaser  for  a  valuable  consideration  entitled  to  the  pro- 
tection of  the  registry  acts.'  But  if  the  indebtedness  is  not 
satisfied,  and  the  creditor  takes  a  mortgage  as  security  for  its 
payment,  he  is  not  such  bona  Me  purchaser,  and,  if  the  con- 
sideration be  partly  an  old  debt,  and  partly  one  created  at  the 
time,  he  will  be  protected  only  to  the  extent  of  the  new  debt.' 

§  817.  Presumption  that  deed  states  true  considera- 
tion.— The  statement  in  the  deed  that  a  certain  sum  has 
been  paid  as  the  consideration  is  an  admission  or  acknowledg- 
ment of  the  grantor  that  such  is  the  fact,  and  such  statement 
may  be  accepted  as  prima  facie  evidence  of  its  truth.^    Hence, 


Cal.  94;  Nagle  v.  Lyman,  14  Cal. 
450.  And  see,  generally.  Work  v. 
Brayton,  5  Ind.  396;  Coddington  v. 
Bay,  20  Johns.  637,  11  Am.  Dec. 
342;  Lawrence  v.  Clark,  36  N.  Y. 
128;  Youngs  v.  Lee,  12  N.  Y.  551; 
Meads  v.  Merchants'  Bank,  25  N.  Y. 
143,  82  Am.  Dec.  331 ;  Mobile  Life 
Ins.  Co.  V.  Randall,  71  Ala.  220. 

^  Love  V.  Taylor,  26  Miss.  567, 
574,  and  cases  cited.  See,  also, 
Wert  V.  Naylor,  93  Ind.  431;  Heath 
V.  Silverthorn,  39  Wis.  416;  Chaffee 
V.  Atlas  Lumber  Co.,  43  Neb.  224, 
47  Am.  St.  Rep.  753;  Wright  v 
Bundy,  11  Ind.  398;  Babcock  v 
Jordan,  24  Ind.  14;  Doolittle  v, 
Cook,  75  111.  354;  Royer  v.  Key 
stone  Nat.  Bank,  83  Pa.  St.  248 
Cummings  v.  Boyd,  83  Pa.  St.  372; 
Busey  v.  Reese,  38  Md.  264;  Cecil 
Bank  v.  Heald,  25  Md.  562 ;  Jackson 
V.  Reid,  30  Kan.  10,  1  Pac.  Rep. 
308;    Ruth    v.    Ford,    9    Kan.    17; 


Haynes  v.  Eberhardt,  Z7  Kan.  308, 
15  Pac.  Rep.  168;  Lawrence  v. 
Tucker,  23  How.  14;  Shirras  v. 
Craig,  7  Cranch,  34;  Conrad  v.  At- 
las Ins.  Co.,  1  Pet.  386;  Soule  v. 
Shotwell,  52  Miss.  236.  See,  also, 
McElwee  v.  Kennedy,  56  S.  C.  154, 
34  S.  E.  86;  Reinach  v.  New  Or- 
leans etc.  Co.,  50  La.  Ann.  497,  23 

50.  455 ;  Brown  v.  Sumter,  55  S.  C. 

51,  32  S.  E.  816. 

■^  Saffold  V.  Wade's  Executor,  51 
Ala.  214;  Ohio  Life  Ins.  &  Trust 
Co.  V.  Ledyard,  8  Ala.  866.  A  pre- 
existing debt  is  sufficient  to  sup- 
port the  claim  of  bona  fide  pur- 
chaser: Adams  v.  Vanderbeck,  148 
Ind.  92,  45  N.  E.  645,  62  Am.  St. 
Rep.  497.  See  Murray  v.  First  Na- 
tional Bank  of  Concordia,  5  Kan. 
App.  456,  49  Pac.  326. 

8  Wells  V.  Morrow,  38  Ala.  125. 

9  Belden  v.  Seymour,  8  Conn.  310, 
21  Am.  Dec.  661 ;  Barter  v.  Green- 


CHAP.    XXIV.]  CONSIDERATION.  1481 

where  a  person  lias  the  title  vested  in  him,  and  executes  a  deed 
reciting  a  valuable  consideration,  it  is  never  necessary  as 
against  him,  or  those  claiming  under  him,  or  as  against  a 
stranger,  to  show  what  reason,  other  than  the  grantor's  will 
led  him  to  execute  it.^  "A  deed  of  itself  imports  a  consid- 
eration. The  recital  of  a  consideration  is  conclusive  for  the 
purpose  of  supporting  the  deed  against  the  grantor  and  his 
heirs.  A  voluntary  conveyance  or  gift  to  a  stranger  is  good 
against  the  grantor  and  his  heirs.  It  is  also  good  against  a 
subsequent  purchaser  for  value  in  the  absence  of  actual 
fraud."  2 

§  818.  Presumption  as  against  strangers — Conflict  in 
the  decisions — Comments. — While  there  can  be  no  doubt 
that  as  against  the  grantor  himself  and  his  heirs,  the  acknowl- 
ment  in  the  deed  that  a  certain  consideration  has  been  paid  is 
prima  facie  evidence  of  the  truth  of  the  fact  recited,  yet  when 
it  comes  to  apply  this  rule  to  strangers,  the  reasons  on  which 
it  is  founded  when  applied  to  the  grantor  do  not  so  forcibly, 
if  at  all,  appear.  A  distinction  can  well  be  drawn  between  the 
effect  as  evidence  of  a  statement  made  by  the  grantor  when 
he  alone  is  affected  by  its  truth  or  falsity,  and  the  effect  of 
such  statement  when  the  rights  of  others  are  involved.  In 
some  courts  no  distinction  is  made  between  the  parties  them- 
selves and  strangers  as  to  the  prima  facie  evidence  of  the 
recital  acknowledging  the  payment  of  the  consideration.  In 
others,  this  rule  is  confined  in  its  application  to  cases  affecting 
the  parties  only,  and  its  existence  when  applied  to  strangers 
strenuously  denied.  It  is  thought  that  this  subject  is  of  suf- 
ficient importance  to  warrant  a  somewhat  fuller  discussion 

leaf,  65   Me.  405;   Bayliss  v.   Wil-  i  Rockwell   v.   Brown,   54   N.    Y. 

liams,    6    Cold.    440;    Clements    v.  210. 

Landrum,    26   Ga.    401.     See,    also,  2  Wells,  J.,  in  Trafton  v.  Hawes, 

Hoover  v.  Binkley,  66  Ark.  645,  51  102  Mass.  533,  541,  3  Am.  Rep.  494, 

S.  W.  73 ;  Harraway  v.  Harraway,  citing  Beal  v.  Warren,  2  Gray,  447. 
136  Ala.  499,  34  So.  836. 


1482  THE  LAW  OF  DEEDS.  [CHAP.    XXIV. 

than  the  mere  statement  that  in  some  States  the  one  view  pre- 
vails, and  in  others  the  opposite.  Hence,  in  the  following 
sections  will  be  found  instances  in  which  each  view  of  the 
law  has  by  different  courts  been  taken. 

§  819.     Decisions  that  the  rule  applies  to  strangers. — 

In  [.ome  of  the  States  the  rule  is  applied  not  only  to  parties 
but  to  strangers  also.  As  an  instance  we  may  cite  the  case 
\\here  an  owner  of  land  conveyed  it  to  an  infant,  reciting  in 
the  deed  that  the  consideration  had  been  paid  by  such  infant. 
A  judgment  creditor  of  the  father  of  the  infant  caused  the 
land  to  be  sold  on  execution  on  his  judgment,  alleging  that 
the  father  had  paid  the  consideration,  and  had  caused  the 
deed  to  be  made  to  his  child  for  the  purpose  of  defrauding 
his  creditors,  and  that  thereby  he  had  a  resulting  trust  in  the 
land  which  could  be  sold  under  execution.  The  court  held 
that  the  recital  of  the  payment  of  the  consideration  by  the  in- 
fant was  prima  facie  evidence  of  this  fact,  and  that  the  party 
attacking  the  deed  must  show  by  clear  and  satisfactory  evi- 
dence the  falsity  of  this  recital.'  An  owner  of  land  conveyed 
the  same  to  one  person,  and  before  the  registration  of  the  deed 
conveyed  the  same  land  to  another,  who  caused  his  deed  to  be 
first  placed  on  record.  The  latter,  if  he  had  taken  his  deed 
without  notice  of  the  execution  of  the  prior  one,  and  had  paid 
the  consideration,  would,  of  course,  have  the  better  title,  and 
the  court  held  that  the  recital  in  his  deed  of  the  payment  of 
the  consideration  was  evidence  of  such  fact  as  between  him 
and  the  prior  grantee.*     So  in  another  case  an  owner  of  land 

3  Gaugh  V.  Henderson,  2  Head,  a  bargain  and  sale  deed  recites  a 
628.  But  in  the  subsequent  case  of  consideration  a  prima  facie  case  is 
Bayliss  v.  Williams,  6  Cold.  445,  the  made  sufficient  to  support  a  verdict 
same  court  said  that  this  point  did  in  favor  of  the  grantee  as  against 
not  seem  to  have  been  carefully  dis-  the  grantor's  heirs  where  there  is 
cussed  or  considered.  no  evidence  to  overcome  it :    Mow- 

4  Wood  V.   Chapin,   13   N.  Y.    (3  ry  v.  Mowry,  103  Cal.  314, 
Kern.)  509,  67  Am.  Dec.  62.    Where 


CHAP.    XXIV.]  CONSIDERATION.  1483 

conveyed  it  by  deed,  and  the  grantee  executed  a  mortgage  to 
his  grantor  to  secure  the  payment  of  the  purchase  price.     Be- 
fore the  mortgage  was  recorded,  the  grantee  sold  the  land  to 
another,  the  deed  reciting  that  a  consideration  of  a  certain 
amount  had  been  paid.    In  the  contest  for  priority  between  the 
first  grantor,  and  also  mortgagor,  and  the  second  grantee, 
upon  the  issue  whether  the  latter  was  a  purchaser  in  good  faith 
and  for  value,  it  was  decided  that  the  recital  in  the  deed  of 
payment  of  the  consideration  was  evidence  of  such  payment.^ 
"The  acknowledgment  in  a  deed  of  the  receipt  of  the  consid- 
eration money,"  said  Sutherland,  J.,  speaking  for  the  court, 
"is  prima  facie  evidence  of  its  payment.     It  is  equivalent  to, 
and  like,  a  receipt  for  money.     It  is  liable  to  be  explained  or 
contradicted;  but,  until  impeached,  it  is  legal  and  competent 
evidence  of  payment.     Nor  is  its  operation  confined  to  the 
immediate  parties  to  the  deed.     It  does  not  operate  by  way  of 
estoppel,  but  as  evidence  merely,  and  must  have  the  effect  of 
sustaining  the  deed  by  establishing,  prima  facie,  the  considera- 
tion for  which  it  was  given,  against  any  person  who  may  seek 
collaterally  to  impeach  it"  *  , 

§  820.  Decisions  that  the  rule  does  not  apply  to 
strangers. — In  a  case  in  New  Hampshire,  a  deed  which 
purported  to  have  been  executed  upon  a  pecuniary  considera- 
tion, and  which  acknowledged  the  receipt  of  its  payment,  was 
attacked  by  a  creditor  as  being  fraudulent  against  existing 
creditors  of  the  vendee.  The  court  held  that  the  recital  of 
the  payment  of  the  consideration  was  not  evidence  of  the 

6  Jackson  v.   McChesney,  7  Cow-  ^vard's   Heirs  v.  Moore,  2  Humph, 

en,  360,  17  Am.  Dec.  521,  and  cases  584;     West     Portland     Homestead 

cited.  Assn.   v.   Lawnsdale,    19   Fed.   Rep. 

6  Jackson    v.    McChesney,    supra.  291;    Galland   v.   Jackman,   26    Cal. 

See,  also.  Medley  v.  Mask,  4  Ired.  79,  85  Am.  Dec.  172;  Long  v.  Dol- 

Eq.  339;  Cocke  v.  Trotter,  10  Yerg.  larhide,  24  Cal.  218.     See  Gillan  v. 

213 ;  Whitbeck  v.  Whitbeck,  9  Cow-  Metcalf ,  7  Cal.  137. 
en,   266,    18   Am.    Dec.    503;    Hay- 


1484 


THE  LAW  OF  DEEDS. 


[chap.    XXIV. 


fact  as  against  such  creditors.'  In  a  case  in  Alabama,  there 
was  a  contest  between  a  prior  and  a  subsequent  mortgagee  of 
the  same  land,  the  subsequent  mortgagee  attempting  to  defeat 


'  Kimball  v.  Fenner,  12  N.  H.  248. 
Parker,  C.  J.,  in  delivering  the  opin- 
ion of  the  court,  said:    "The  ques- 
tion may  be  stated,  then,  in  other 
words,  whether  a  deed,  which  pur- 
ports to  be  executed  upon  a  pecun- 
iary consideration,  and  contains  an 
acknowledgment   of   the   receipt   of 
it,  furnishes  of  itself  evidence  that 
such  consideration  was  in  fact  re- 
ceived, or  whether,  as  against  exist- 
ing  creditors,   it   is   not   to   be    re- 
garded as  a  mere  voluntary  convey- 
ance,   and    presumed   to   be    fraud- 
ulent until  some  evidence  is  offered 
of  the  consideration  upon  which  it 
was  executed.     There  is   no   doubt 
that  the   clause  acknowledging  the 
receipt  of  a  consideration  furnishes 
evidence    against   the   grantor    that 
the  consideration  specified  has  been 
paid,  and  this  receipt,  being  under 
seal,  and  part  of  the  deed  itself,  can- 
not be  contradicted  by  him  for  the 
purpose    of    defeating    the    instru- 
ment:   Morse  v.  Shattuck,  4  N.  H. 
229,  17  Am.  Dec.  419.    But,  for  all 
other    purposes,    the    effect   of   this 
clause,  even  between  the  parties,  is 
that  of  a  mere  receipt,  which  may 
be  contradicted;  and  it  furishes  the 
grantee,  therefore,  only  prima  facie 
evidence  of  the  consideration  upon 
which  the  deed  is  founded.     Thus, 
it  may  be  shown  that  the  actual  con- 
sideration was  more  than  that  ex- 
pressed :     Belden     v.     Seymour,     8 
Conn.    304,   21    Am.    Dec.   661;    or 
less:    Morse  v.   Shattuck,  4  N.  H. 
229,    17  Am.   Dec.   419;   or  that   it 
was   iron   instead   of   money:     Mc- 


Crea  v.  Purmort,  16  Wend.  460,  30 
Am.  Dec  103;  or  that  nothing  was 
paid :    Shephard  v.  Little,  14  Johns. 
210;  Bowen  v.  Bell,  20  Johns.  338, 
11   Am.  Dec.  286;   and,  of  course, 
that  nothing  was  contracted  to  be 
paid.    A  deed  may  be  a  voluntary 
deed,  notwithstanding  it  purports  to 
be  made   upon   a   sufficient  consid- 
eration.    Upon  what  principle  is  it 
that  this  mere   receipt,  which  may 
thus  be  contradicted  and  controlled 
between  the  parties,  is  even  prima 
facie  evidence  of  the  payment  of  a 
consideration,  against  a  third  per- 
son, who  shows  a  prima  facie  title 
by  a   levy   on   the  land   which  be- 
longed to  his  debtor,  and  who  is  no 
party  to  the  deed,  has  in  no  way 
admitted   its   validity,   and   has,   or 
may  have,  no  knowledge  respecting 
the    transaction    upon    which    it    is 
founded?     He  is  not  in  privity  with 
the    title    of    the   grantee.     On    the 
contrary,     it     is    adverse    to     him. 
.     .     .     The  execution  of  the  deed 
must    be    proved,    whoever    is    the 
party  contesting  it.     Being  proved, 
it    contains    the    admission    of    the 
grantor  in  writing  that  a  considera- 
tion  has   been   paid,   and   this   fur- 
nishes evidence  of  that  fact  against 
him.     It  contains  no  admission  of 
the    creditors    when    used    against 
them.     But    it    is    invalid    against 
them    without    some    evidence    that 
it  is  founded  upon  a  consideration. 
Is    the    admission    of    the    grantor, 
then,  evidence  against  the  creditor 
to  show  that  fact?     If  it  be  so,  it 
must  be  either  because  the  admis- 


CHAP.    XXIV.] 


CONSIDERATION. 


1485 


the  prior  mortgage  on  the  ground  that  it  was  made  to  defraud 
creditors,  and  therefore  was  void.  It  was  held  that  the  re- 
cital of  the  debt  in  the  first  mortgage  could  not  be  taken  as 
evidence  of  the  existence  of  the  debt,  and  that  the  trans- 
action was  made  in  good  faith.  "These  are  but  the  written 
admissions  of  a  debtor,  which  may  be  manufactured  by  him 
in  furtherance  of  a  contemplated  fraud."  *  This  view  is  taken 
in  Pennsylvania,  and  in  a  controversy  between  a  purchaser, 
claiming  to  be  such  for  a  valuable  consideration,  and  the  hold- 
er of  an  antecedent  equity,  Mr.  Chief  Justice  Lewis,  after 
stating  that  the  receipt  of  payment  is  evidence  of  payment 
against  the  grantor,  and  all  who  subsequently  derive  title  from 


sion  is  under  seal,  or  because  it  is 
contained  in  the  deed  itself.  A 
verbal  admission  or  declaration  of 
the  grantor  that  there  was  a  con- 
sideration which  had  been  paid 
would  be  good  evidence  as  against 
him  to  establish  that  fact,  but  not 
against  third  persons:  Braintree 
V.  Hingham,  1  Pick.  245.  And  so 
of  a  mere  receipt,  or  any  other 
writing  disconnected  from  the  deed : 
Jackson  v.  I  ichards,  6  Cowen,  617, 
623.  We  an  not  aware  of  any  rule 
by  which  a  seal  can  add  to  the  au- 
thentioity  of  the  receipt,  or  give  it 
the  character  of  competent  evidence 
as  against  parties  having  no  con- 
nection with  it:  McCrea  v.  Pur- 
mort,  16  Wend.  474.  It  would  still 
be  hearsay  evidence,  or  rather  res 
infer  alios  acta:  3  Stark.  Ev.  1300; 
1  Phil.  Ev.  (ed.  1820)  173;  Cowen 
&  Hill's  ed.  229,  et  seq.  and  notes. 
432,  435.  The  actual  payment  of 
the  money,  or  other  thing  men- 
tioned in  it,  must  still  be  proved. 
And  we  are  of  opinion  that  the  fact 
that  this  receipt  is  contained  in  the 
deed  does  not  add  to  its  character 


as  evidence,  or  confer  upon  it  any 
tendency  to  prove  itself  against 
third  persons,  which  it  would  not 
have  if  contained  in  a  separate  in- 
strument. It  proves  merely  that 
the  grantor  admitted  that  a  con- 
sideration existed  which  had  been 
paid,  and  not  that  one  actually  ex- 
isted or  has  been  discharged.  It  is 
a  recital  of  that  fact,  and  thus  not 
evidence  against  strangers  to  the 
deed:  1  Stark.  Ev.  289,  §  156,  and 
notes ;  Carver  v.  Jackson,  4  Pet. 
83.  It  is  said  that  the  origin  and 
purpose  of  this  admission  or  ac- 
knowledgment in  a  deed  is  to  pre- 
vent a  resulting  trust  in  the  grantor, 
and  that  it  is  merely  formal  or 
nominal,  and  not  designed  to  con- 
clusively fix  the  amount  either  paid 
or  to  be  paid :  8  Conn.  312.  Being 
formal  or  nominal,  it  cannot  be  evi- 
dence against  third  persons  that 
anything  was  paid  or  to  be  paid." 
See  to  the  same  effect :  King  v. 
Meade,  60  Kan.  539,  57  Pac.  113 
(citing  text). 

8  De  Vendal  v.  Malone's  Execu- 
tors, 25  Ala.  272,  277. 


1486  THE  LAW  OF  DEEDS.  [CHAP.    XXIV. 

him,  but  no  evidence  whatever  of  such  fact  against  a  stranger, 
or  even  against  a  prior  purchaser,  continued :  "Against  them 
it  is  nothing  but  hearsay.  It  is  a  mere  ex  parte  declaration, 
not  under  oath,  taken  without  any  opportunity  to  cross-exam- 
ine. It  has  been  long  settled  that  such  declarations  are  not 
evidence  against  strangers.  ...  If  such  evidence  were  re- 
ceived against  strangers  for  the  purpose  of  extinguishing  their 
equitable  rights,  the  salutary  rules  established  for  ages  would 
be  subverted;  hearsay  evidence  would  be  substituted  for  testi- 
mony under  the  sanction  of  an  oath,  and  all  the  advantages 
of  a  cross-examination  would  be  swept  away.  Under  such  a 
system  no  equitable  title  could  be  protected.  But  it  is  urged 
that  there  is  a  presumption  that  the  grantor  and  grantee"  have 
acted  with  integrity.  This  may  be  so,  but  that  is  no  reason 
why  their  declarations  should  be  given  in  evidence  against 
persons  who  have  no  connection  with  them.  If  they  are  ac- 
quainted with  material  facts,  they  are  as  much  bound  to  de- 
liver their  testimony  under  oath  as  other  persons  if  competent 
witnesses.  .  .  .  But  the  rejection  of  a  receipt  signed  by 
a  stranger  implies  no  imputation  of  dishonesty  in  the  party 
signing  it.  It  is  always  signed  whenever  a  conveyance  is 
made,  and  proves  nothing  further,  even  against  the  grantor, 
than  that  he  has  either  received  the  purchase  money  or  has 
taken  security  for  it.  Taking  security  for  it  is  no  payment 
which  would  defeat  a  prior  title.  Bona  Ude  payment  is  an 
affirmative  fact  peculiarly  within  the  knowledge  of  the  party 
making  such  payment  or  claiming  advantage  from  it.  It  is, 
therefore,  easy  for  him  to  prove  it.  While  on  the  other  hand, 
the  opposite  party  who  is  a  stranger  to  the  transaction,  might 
have  insuperable  difficulties  in  proving  a  negative.  It  is 
against  all  the  reason  and  life  of  the  law  that  such  a  burthen 
should  be  imposed  upon  him."  * 

^  Lloyd  V.  Lynch,  28  Pa.  St.  419,      same  point,  Rogers  v.  Hall,  4  Watts, 
424,  70  Am.  Dec.  137.    See  to  the      359;  Union  Canal  Co,  v.  Young,  1 


CHAP.    XXIV.]  CONSIDERATION.  1487 

§  821.  Comments. — The  cases  holding  that  the  recital 
in  a  deed  of  the  payment  of  the  consideration  is  not  evidence 
of  that  fact  as  against  a  stranger,  state,  as  it  seems  to  us,  the 
true  and  correct  principle.  If  the  payment  of  the  considera- 
tion price  is  a  fact  essential  to  the  establishment  of  a  right  or 
claim,  this  fact  should  be  proven  as  are  other  facts.  The  ac- 
knowledgment of  payment  is  an  admission  on  the  part  of  the 
grantor,  contained  in  writing  it  is  true,  but  of  no  greater  force 
for  this  reason,  except  for  its  certainty,  than  if  made  orally. 
Wherever  his  admissions  will  bind  himself  or  others,  the  ac- 
knowledgment that  he  has  received  the  consideration,  should 
as  an  admission  have  the  effect  of  prima  facie  evidence.  But 
where  he  is  powerless  to  make  admissions  to  the  detriment  of 
others,  it  is  immaterial  in  what  form  he  may  put  such  admis- 
sions. If  he  cannot  bind  others  by  a  verbal  admission,  no 
good  reason  exists  for  allowing  him  to  do  so  by  putting  it  in 
writing.  The  question  is  not  as  to  the  mode  in  which  the  ad- 
mission by  the  grantor  of  payment  is  made,  but  as  to  his 
power  to  make  it;  and  one  of  the  most  firmly  established  prin- 
ciples of  law  is  that  one  person  shall  not  suffer  by  the  declara- 
tions or  admissions  made  by  another  out  of  his  presence,  with- 
out the  opportunity  to  deny  or  cross-examine,  unless  there  is 
some  relation  of  privity,  mutual  interest,  or  agency  between 
them.^ 

§  822.  Proof  of  real  consideration. — The  recital  in  the 
deed  that  the  consideration  has  been  paid  may  be  contradicted 
by  parol  evidence.  It  may  be  shown  by  such  evidence  that 
the  consideration  was  not  paid  at  all,  or  only  partially  paid, 

Whart.  410,  432,  30  Am.  Dec.  212;  Ala.    725;    Hawley   v.    Bullock,   29 

Clark  V.  Depew,  25  Pa.  St.  509,  64  Tex.  216;    Snelgrove  v.   Snelgrove, 

Am.  Dec.  717;  Henry  v.  Raiman,  25  4  Desaus.  Eq.  274,  287. 

Pa.  St.  354,  360,  64  Am.  Dec.  703 ;  ^  This  section  was  cited  with  ap- 

Bolton  V.  Johns,  5  Pa.  St.   145,  47  proval  in  King  v.  Meade,  60  Kan. 

Am.  Dec.  404;  Nolen  v.  Gwynn,  16  539,  57  Pac  113. 


1488 


THE  LAW  OF  DEEDS. 


[chap.    XXIV. 


or  paid  in  a  different  way  from  that  stated  in  the  deed.^ 
Where  there  are  two  mortgages  upon  a  piece  of  land,  and  the 
mortgagor  executes  a  deed  to  one  of  the  mortgagees,  not  in 


^Altringer  v.  Capehart,  68  Mo. 
441 ;  Bingham  v.  Weiderwax,  1  N. 
Y.  514;  McCrea  v.  Purmort,  16 
Wend.  460,  30  Am.  Dec.  103 ;  Cow- 
ard V.  Waters,  98  Mass.  599 ;  Baker 
V.  Connell,  1  Daly,  470;  Barnum  v. 
Childs  1  Sand.  62;  Moris  v.  Till- 
son,  81  111.  616;  Henderson  v.  Ful- 
lerton,  54  How.  Pr.  425 ;  Taggart  v. 
Stanberry,  2  McLean,  546;  Frink  v. 
Green,  5  Barb.  457 ;  Fontaine  v. 
Boatmen's  Bank,  57  Mo.  553; 
Rhine  v.  Ellen,  36  Cal.  362,  370; 
Coles  V.  Soulsby,  21  Cal.  47,  51 ; 
Irvine  v.  McKeon,  23  Cal.  472; 
Bennett  v.  Solomon,  6  Cal.  134,  137 ; 
Peck  V.  Vandenberg,  30  Cal.  22; 
Spear  v.  Ward,  20  Cal.  659,  676; 
Miller  v.  McCoy,  50  Mo.  214;  Aver- 
ill  V.  Loucks,  6  Barb.  24;  Stackpole 
V.  Robbins,  47  Barb.  219;  Rosboro 
V.  Peck,  48  Barb.  92;  Rose  v.  Rose, 
7  Barb.  177;  Graves  v.  Porter,  11 
Barb.  593;  Sanford  v.  Sanford,  61 
Barb.  302,  5  Lans.  493;  Fellows  v. 
Emperor,  13  Barb.  100;  McNulty 
V.  Prentice,  25  Barb.  212;  Clapp  v. 
Terrell,  20  Pick.  250;  Halliday  v. 
Hart,  30  N.  Y.  494;  Arnot  v.  Erie 
Railway  Co.,  67  N.  Y.  321 ;  Baker  v. 
Union  Mutual  Life  Ins.  Co.,  43  N. 
Y.  287;  Huebsch  v.  Scheel,  81  111. 
281;  Hannan  v.  Oxley,  23  Wis.  519; 
Hubbard  v.  Allen,  59  Ala.  283; 
Paige  V.  Sherman,  6  Gray,  511 ; 
Morris  Canal  Co.  v.  Ryerson,  3 
Dutch.  467;  Rabsuhl  v.  Lack,  35 
Mo.  316;  Miller  v.  Goodwin,  8  Gray, 
542;  O'Neale  v.  Lodge,  3  Har.  & 
McH.  433,  1  Am.  Dec.  377;  Drury 
v.  Tremont  etc  Co.,  13  Allen,  171; 


Harper  v.  Perry,  28  Iowa,  63;  Law- 
ton  V.  Buckingham,  15  Iowa,  22; 
Pritchard  v.  Brown,  4  N.  H.  397, 
17  Am.  Dec  431 ;  Pennsylvania  Salt 
Mfg.  Co.  V.  Neel,  54  Pa.  St.  9; 
Pierce  v.  Brew,  43  Vt.  295 ;  Bullard 
V.  Briggs,  7  Pick.  533,  19  Am.  Dec. 
292;  Hull  v.  Adams,  1  Hill,  603,  2 
Denio,  310;  Anthony  v.  Harrison, 
14  Hun,  210;  Murray  v.  Smith,  1 
Duer,  428;  Upson  v.  Badeau,  3 
Brad.  15 ;  Walcot  v.  Ronalds,  2  Rob. 
(N.  Y.)  620;  Banks  v.  Brown,  2 
Hill  Ch.  538,  1  Riley  Ch.  131,  30 
Am.  Dec.  380;  Doe  v.  Beardsley,  2 
McLean,  414;  Goodell  v.  Pierce,  2 
Hill,  662;  Greenbault  v.  Davis,  4 
Hill,  647;  Carty  v.  Connolly,  91  Cal. 
15;  Cardinal  v.  Hadley,  158  Mass. 
352,  35  Am.  St.  Rep.  492;  Moffatt 
V.  Bulson,  96  Cal.  106,  31  Am.  St. 
Rep.  192;  Byers  v.  Locke,  93  Cal. 
493,  27  Am.  St.  Rep.  215;  Fall  v. 
Glover,  34  Neb.  522;  Barbee  v.  Bar- 
bee,  108  N.  C.  581;  Blair  v.  Car- 
penter, 75  Mich.  167;  Nichols  v. 
Nichols,  123  Pa.  St.  438;  Fort  v. 
Richey,  128  111.  502.  And  see,  also, 
Jordan  v.  Cooper,  3  Serg.  &  R.  564; 
Hamilton  v.  McGuire,  3  Serg.  &  R. 
355;  Watson  v.  Blaine,  12  Serg.  & 
R.  131,  14  Am.  Dec.  669;  Hutchin- 
son v.  Sinclair,  7  Mon.  291 ;  Curry 
V.  Lyles,  2  Hill,  404;  Swisher  v. 
Swisher's  Admr.  Wright,  755 ;  Har- 
vey V.  Alexander,  1  Rand.  219,  10 
Am.  Dec.  519;  Higdon  v.  Thomas, 
1  Har.  &  G.  139,  17  Am.  Dec.  431 ; 
Lingan  v.  Henderson,  1  Bland.  249; 
Bowen  v.  Bell,  20  Johns.  338,  11 
Am.  Dec.  286;  Depeyster  v.  Gould, 


CHAP.    XXIV.] 


CONSIDERATION. 


1489 


payment  of  his  debt,  but  as  an  additional  security  only,  al- 
though the  deed  may  recite  that  it  is  in  consideration  of  the 
grantee's  mortgage,  and  the  balance  due  on  the  other  mort- 
gage, the  grantee  will  not  be  compelled  to  pay  the  other  mort- 


2  Green  Ch.  474,  29  Am.  Dec.  723; 
Schemmerhorn  v.  Vanderheyden,  1 
Johns.  139,  3  Am.  Dec.  304;  Kick- 
land  V.  Menasha  Woodenvvare  Co. 
68  Wis.  34,  60  Am.  Rep.  831,  31  N. 
W.  Rep.  471;  Wood  v.  Morawetz, 
15  R.  I.  518,  9  Atl.  Rep.  427;  Sul- 
livan V.  Lear,  23  Fla.  463,  11  Am. 
St  Rep.  388,  2  So.  Rep.  846;  Cal- 
vert V.  Nickles,  26  S.  C.  304,  2  S.  E. 
Rep.  116;  Conlon  v.  Grace,  26  Minn. 
276,  30  N.  W.  Rep.  880.  The  true 
consideration  may  be  shown  by  pa- 
rol: Martin  v.  White,  115  Ga.  866, 
42  S.  E.  279;  Leggett  v.  Patterson, 
114  Ga.  714,  40  S.  E.  736;  Worrell 
V.  Forsyth,  141  III.  22,  30  N.  E.  673 ; 
Ford  V.  Savage,  111  Mich.  144,  69 
N.  W.  240 ;  Fitzpatrick  v.  Hoffman, 
104  Mich.  228,  62  N.  W.  349;  Le 
May  V.  Brett,  81  Minn.  506,  84  N. 
W.  339;  Jensen  v.  Crosby,  80  Minn. 
158,  83  N.  W.  43;  Ord.  etc.  Bank  v. 
Bower,  5  Neb.  (Unof.)  375,  98  N. 
W.  834;  Columbia  etc.  Bank  v. 
Baldwin,  64  Neb.  732,  90  N.  W.  890; 
Forester  v.  Van  Auken,  12  N.  D. 
175,  96  N.  W.  301 ;  Conklin  v.  Han- 
cock, 67  Oh.  St.  455,  66  N.  E.  518; 
Wilcox  V.  Priester,  68  S.  C  106, 
46  S.  E.  553;  Medical  College  Lab- 
oratory V.  N.  Y.  University,  178  N. 
Y.  153,  70  N.  E.  467;  Faust  v.  Faust, 
144  N.  C.  383,  57  S.  E.  22;  Whit- 
men  V.  Corley,  72  S.  C.  410,  52  S. 
E.  49;  O'Farrell  v.  O'Farrell  (Tex. 
Civ.  App.)  119  S.  W.  899;  Wind- 
sor v.  R.  Co.,  Zl  Wash.  156,  79  Pac. 
613;  Butt  v.  Smith,  121  Wjs,  J66^ 
Deeds,  Vol.  II.— 94 


99  N.  W.  328,  105  Am.  St.  Rep. 
1039;  Lenhardt  v.  Ponder,  64  S.  C. 
354,  42  S.  E.  169 ;  Wheeler  v.  Camp- 
bell, 68  Vt.  98,  34  AtL  35 ;  Halvor- 
sen  v.  Halvorsen,  120  Wis.  52,  97 
N.  W.  494;  Cuddy  v.  Foreman,  107 
Wis.  519,  83  N.  W.  1103;  R.  Co. 
v.  Crandall,  75  Ark.  89,  86  S.  W. 
855,  112  Am.  St  Rep.  42;  Lumber 
Co.  v.  Lumber  Co.,  90  Ark.  426,  119 
S.  W.  822;  Min.  Co.  v.  Patterson, 
153  Cal.  624,  96  Pac.  90;  Herrin  v. 
Abbe,  55  Fla.  769,  18  L.R.A.(N.S.) 
907,  46  So.  183  (citing  text)  ;  Goet- 
te  v.  Sutton,  128  Ga.  179,  57  S.  E. 
308;  Allen  v.  Rees,  136  la.  423,  8 
L.R.A.(N.S.)  1137,  110  N.  W.  583; 
Blackwell  v.  Blackwell,  196  Mass. 
186,  81  N.  E.  910;  Scudder  v.  Mor- 
ris, 107  Mo.  App.  634,  82  S.  W.  217 ; 
Wiltrout  v.  Showers,  82  Neb.  Ill, 
118  N.  W.  1080.  Recital  of  consid- 
eration is  only  prima  facie  evidence. 
It  is  not  conclusive.  See  Crafton 
V.  Inge,  124  Ky.  89,  98  S.  W.  325. 
It  does  not  of  itself  conclusively 
raise  an  obligation  to  pay  the  amount 
recited :  McGiverin  v.  Keef e,  130  la. 
97,  106  N.  W.  369.  Nor  does  a  re- 
cital of  a  fictitious  consideration 
impair  the  validity  of  the  deed : 
Burrow  v.  Hicks  (la.)  120  N.  W. 
727.  In  Butt  y.  Smith  (supra)  it 
was  held  that  the  grantee  in  a  deed 
may  show  that  the  amount  stated  in 
the  deed  as  the  consideration  there- 
for was  incorrectly  computed  and 
recover   a   resulting  over  payment. 


1490 


THE  LAW  OF  DEEDS. 


[chap.  xxrv. 


gage  debt,  but  may  show  by  parol  evidence  what  was  the  real 
consideration.^  When  it  becomes  necessary  in  an  action  upon 
a  covenant  of  seisin  to  ascertain  the  damages  for  the  breach, 
the  true  consideration,  and  the  fact  that  only  a  part  of  it  has 
been  paid,  may  be  proven  by  parol  evidence,  notwithstanding 
that  the  deed  recites  a  different  consideration,  and  contains 
an  acknowledgment  of  its  full  payment.*  So,  in  an  action 
upon  a  covenant  of  warranty,  it  may  be  shown  that  the  true 
consideration  was  greater  than  the  amount  named  in  the  deed.^ 

§  823.  Action  for  purchase  price. — "In  an  action  for 
the  consideration  money  expressed  in  a  deed  for  lands  sold, 
the  clause  acknowledging  the  receipt  of  a  certain  sum  of 
money  as  the  consideration  of  the  conveyance  or  transfer  is 
open  to  explanation  by  parol  proof.  The  only  effect  of  this 
consideration  clause  in  a  deed  is  to  estop  the  grantor  from  al- 
leging that  the  deed  was  executed  without  consideration.  For 
every  other  purpose  it  is  open  to  explanation,  and  may  be 
varied  by  parol  proof."  ®  Parol  evidence  is  also  admissible  to 
show  an  additional  consideration  not  inconsistent  with  the 
deed.  Thus,  the  consideration  of  natural  love  and  affection, 
though  not  expressed  in  the  deed,  may  be  shov/n  for  the  pur- 
pose of  sustaining  the  conveyance.'  And  a  contemplated  mar- 
riage, it  seems,  may  be  shown  as  an  additional  consider- 
ation for  a  deed  or  a  contract  to  convey.*  If  a  part  of 
the  consideration  for  a  deed  is  that  the  grantee  shall  assume 
and  pay  a  debt  secured  by  a  mortgage,  it  will  be  his  duty  as  be- 
tween him  and  the  grantor  to  do  so,  although  the  deed  may 


SHuebsch  v.   Scheel,  81  111.  281. 
*  Bingham      v.      Weiderwax,      1 
Corns t  509,  514. 

5  Harper  v.  Perry,  28  Iowa,  57, 
63;  Lawton  v.  Buckingham,  15 
Iowa,  22. 

6  Barnum  v.  Childs,  1  Sand.  Ch. 
58,  62,  per  Vandcrpool,  J.     See  Jew- 


ell V.  Walker,  109  Ga.  241,  34  S.  E. 
Z2i7,  quoting  text. 

'Hannan  v.  Oxiey,  23  Wis.  519, 
522.  See,  also,  Preble  v.  Baldwin, 
6  Cush.  549;  Gale  v.  Coburn,  18 
Pick.  402. 

8  Miller  v.  Goodwin,  8  Gray,  542. 


CHAP.    XXIV.]  CONSIDERATION.  1491 

be  made  subject  to  the  mortgage,  and  contain  a  general  cov- 
enant against  all  encumbrances  excepting  the  mortgage,  and 
may  express  as  the  consideration  simply  the  value  of  the  equity 
of  redemption.' 

§  824.  Quantity  of  land  conveyed. — If  the  land  con- 
veyed by  a  deed  is  described  by  boundaries,  and  as  "contain- 
taining  four  acres,  more  or  less,"  and  the  grantee  pays  the 
grantor  for  the  land  at  a  certain  rate  per  acre  for  four  acres, 
the  grantor  may  show  by  parol  evidence  that  the  boundaries 
named  in  the  deed  would  apply  to  a  tract  containing  five  acres, 
as  well  as  to  a  tract  containing  four  acres;  he  may  also  show 
by  parol  that  he  and  the  grantee  employed  a  surveyor  before 
the  execution  of  the  deed  to  ascertain  the  amount  of  the  land, 
under  an  agreement  that  the  price  should  be  at  a  stipulated 
sum  per  acre,  and  that  the  grantee  paid  for  the  land  upon 
the  inadvertent  statement  of  such  surveyor,  that  the  tract  con- 
tained four  acres,  when,  in  fact  it  contained  five;  and  the 
grantor  is  entitled  to  recover  for  the  additional  acre  at  the 
stipulated  rate.^  In  accordance  with  this  principle  the  grant- 
or may  show  that  the  purchase  money  has  not  been  paid,  and, 
in  an  action  to  recover  the  purchase  money,  he  is  not  estopped 
by  the  acknowledgment  on  the  face  of  the  deed  that  the  con- 
sideration has  been  paid.^ 

§  825.     Parol  promise  of  grantee  to  convey  other  land. 

— Where  the  grantor,  as  a  consideration  for  his  deed,  re- 

5  Drury  v.  Tremont  Imp.  Co.,  13  revert  to  the  grantor,  but  he  may 

Allen,   171.     See  Murray  v.  Smith,  maintain  an  action  for  partial  fail- 

1  Duer,  412.     Where  the  considera-  ure    of    consideration :     Berkley    v. 

tion  for  a  deed  to  a  railroad  com-  Union  Pac.   Ry.   Co.,  33  Fed.  Rep. 

pany  is  that  the  grantee  shall  erect  794. 

and  maintain  its  depot  on  the  land,  ^  Paige  v.  Sherman,  6  Gray,  511. 

and  the  depot  is  erected  and  main-  ^  Taggart    v.    Stanberry,    2    Mc- 

tained  for  a  number  of  years  and  Lean,  543.                                «> 
then   removed,   the   land    does    not 


1492  THE  LAW  OF  DEEDS.  [CHAP,    XXIV. 

lies  upon  the  parol  promise  of  the  grantee  to  convey  certain 
other  land  to  him,  and  the  grantee  refuses  to  perform  his 
agreement,  the  grantor  may  recover  the  value  of  the  property 
from  the  grantee  upon  an  implied  assumpsit.  If,  in  such  a 
case,  the  grantor  show  that  the  grantee  agreed  to  give  an- 
other tract  of  land  worth  a  certain  price  for  the  land  so  con- 
veyed, this  is  practically  an  admission  on  the  part  of  the  gran- 
tee that  the  value  of  the  land  conveyed  by  the  grantor  was 
such  sum.^  And  it  may  be  observed,  that  if  the  grantee  has 
put  it  out  of  his  power  to  comply  with  his  promise  by  convey- 
ing to  another  person  the  land  he  had  promised  to  convey  to 
his  grantor,  the  grantor  is  not  required  to  demand  a  deed 
from  the  grantee  before  commencing  an  action  to  recover  the 
value  of  the  land.*  It  may  be  shown  by  parol  evidence  that 
the  grantor,  for  the  sum  stated  as  the  consideration  in  the 
deed,  agreed  to  convey  to  the  grantee  two  lots  of  land,  each 
for  a  price  agreed  upon,  that  the  grantee  paid  to  the  grantor 
the  price  agreed  to  be  paid  for  both  lots,  and  that,  through 
the  grantor's  fraud  or  mistake,  the  deed  conveyed  only  one  of 
the  lots.  If  the  grantor  when  requested  to  convey  the  other 
lot  refuses  to  do  so,  the  grantee  may  recover  the  consideration 
which  he  has  paid  for  it,  with  interest.^ 

§  826.  Verbal  promise. — It  may  also  be  shown  by 
parol,  in  contradiction  of  the  acknowledgment  of  the  receipt 
of  the  consideration,  that  the  grantee,  as  a  part  of  the  con- 
sideration, made  a  verbal  promise  that  he  would  pay  the  grant- 
or whatever  he  might  receive  over  a  specified  amount  upon 
the  resale  of  the  land,  and  an  action  of  assumpsit  will  lie  to 

8  Bassett  v.  Bassett,  55   Me.   127.  strument   is  a   sufficient  considera- 

^Bassett  v.   Bassett,  55   Me.   127.  tion  to  support  the  other:    Wilson 

Where  as  parts  of  one  transaction  v.  Fairchild,  45  Minn.  203. 
a  grantor  executes  a  deed  and  the  ^  Goodspeed  v.  Fuller,  46  Me.  141, 

grantee   executes   an   agreement   to  71  Am.  Dec.  572.     But  see  in  tliis 

reconvey,  the  execution  of  one  in-  connection     the     earlier     cases     in 


CHAP.    XXIV.]  CONSIDERATION.  1493 

recover  the  excess.^  So,  it  may  be  shown  by  parol  evidence 
for  the  purpose  of  creating  a  resulting  trust  that  the  consider- 
ation price  was  not  paid  by  the  grantee,  but  by  a  third  per- 
son.'^  Such  evidence  does  not  tend  to  contradict  the  deed. 
The  recital  of  payment  may  state  that  the  consideration  was 
paid  by  the  grantee,  but  it  does  not  state  that  it  was  his  money. 
This  is  a  fact  outside  of  the  conveyance. 

§  827.  Vesting  of  title. — If  a  tract  of  land,  a  part  of  a 
Mexican  grant,  is  conveyed  in  consideration  of  an  agreement 
on  the  part  of  the  grantee  to  prosecute  the  claim  before  the 
courts  until  it  is  finally  confirmed,  the  title  vests  absolutely 
in  the  grantee.  In  case  he  fails  to  perform  his  agreement,  the 
remedy  of  the  grantor  lies  in  an  action  for  damages  for  breach 
of  the  agreement.* 

§  828.     Retention  of  purchase  money  by  grantee. — The 

grantor  may  show,  notwithstanding  the  acknowledgment  of 
payment  of  the  consideration  in  the  deed,  that  the  grantee 
retained  a  part  of  the  money  to  be  applied  to  the  grantor's 
use.^    So  it  may  likewise  be  shown  that  the  part  of  the  money 

Maine  of  Steele  v.  Adams,  1  Greenl.  der  to  the  judgment  debtor:    Byers 

1,  and  Emery  v.   Chase,  5  Greenl.  v.  Locke,  93  Cal.  493,  27  Am.   St. 

232.  Rep.    212.     See,    also,    Michael    v. 

6  Hall  V.  Hall,  8  N.  H.  129.  Foil,  100  N.  C.  178,  6  Am.  St.  Rep. 

7  Pritchard  v.  Brown,  4  N.  H.  397,  577 ;  Ryman  v.  Mosher,  71  Ind. 
17  Am.  Dec.  431;  Scoby  v.  Blan-  596 ;  McCarthy  v.  Pope,  52  Cal.  561 ; 
chard,  3  N.  H.  170;  Dudley  v.  Bots-  Price  v.  Sturgis,  44  Cal.  591;  Mil- 
worth,  10  Humph.  9,  51  Am.  Dec.  ler  v.  Kendig,  55  Iowa,  174;  Hodges 
690.  It  may  be  shown  by  parol  evi-  v.  Green,  28  Vt.  358;  Hess  v.  Fox, 
dence  that  a  deed  made  by  a  judg-  10  Wend.  437;  Trowbridge  v. 
ment  debtor  after  a  sale  on  execu-  Wetherbee,  11  Allen,  361;  Collins 
tion  was  made  to  enable  the  grantee  v.  Tillou,  26  Conn.  368,  68  Am.  Dec. 
to  redeem  the  land  from  the  sale,  398;  Kintner  v.  Jones,  122  Ind.  148. 
and  that  he  agreed  to  hold  the  prop-  ^  Hartman  v.  Reed,  50  Cal.  485. 
crty,  make  necessary  advances,  and  ^  Schillinger  v.  McCann,  6  Greenl. 
upon  a  resale,  after  deducting  what  314. 

he  had  advanced  to  pay  the  remain- 


1494  THE  LAW  OF  DEEDS.  [CIIAP,    XXIV. 

retained  by  the  grantee  was  to  be  paid  by  him  to  a  third  per- 
son for  the  grantor's  benefit.^  So  it  is  permissible  to  show 
by  parol  evidence  that  the  grantee  has  retained  a  part  of  the 
consideration  money,  under  an  agreement  to  pay  the  note  of 
the  grantor  to  a  third  person,  and  in  an  action  for  money 
had  and  received  to  his  use,  such  third  person  may  recover 
the  amount  of  the  note  and  interest.^ 

§  829.  Whether  a  gift  or  an  advancement. — When  a 
deed  made  by  a  father  to  his  son,  expressed  a  consideration 
of  two  thousand  dollars,  parol  evidence  was  admitted  to  show 
that  no  money  was  really  paid,  but  that  the  deed  was  made 
as  an  advancement  to  the  son.^  The  c[uestion  whether  in 
such  a  case  the  conveyance  should  be  considered  as  a  gift,  or 
as  an  advancement,  or  partly  each,  will  depend,  of  course, 
upon  the  intent  of  the  grantor.  And  it  is  held  that  where  land 
is  conveyed  by  a  father  to  his  son,  worth  at  least  two  thou- 
sand dollars,  and  it  is  shown  that  the  intention  of  the  grantor 
in  making  the  deed  was  to  make  an  advancement,  ecjual  to 
the  advancement  made  to  each  of  his  other  sons,  amounting 
to  one  thousand  dollars,  the  grantee  should  be  charged  with  an 
advancement  of  only  such  sum  of  one  thousand  dollars.*  So, 
also,  where  the  consideration  of  a  deed  from  husband  to  wife 
was  called  in  cjuestion,  it  was  held  that  the  presumption  was 
that  it  was  a  gift  or  advancement  and  that  the  burden  was 
on  the  grantee  to  show  the  contrary.^  Where  a  deed  of  bar- 
gain and  sale  recites  a  pecuniary  consideration,  it  may  be 
shown  that  there  was  also  the  consideration  of  an  advance- 
ment to  the  daughter  of  the  bargainor.^  So  where  a  deed  re- 
cites that  a  consideration  of  so  much  money  has  been  paid, 

iBurbank  v.  Gould,   15  Me.   118.  5  strayer    v.    Dickerson,    205    III. 

2  Dearborn    v.    Parks,    5    Greenl.       257,  68  N.   E.   767. 

81,  17  Am.  Dec.  206.  6  Ha3-den  v.  Mentzer,  10  Serg.  & 

3  Meeker  v.  Meeker,  16  Conn.  383.       R.  329. 
*  Meeker  v.  Meeker,  16  Conn.  383. 


CHAP.    XXIV.]  CON.SIDERATION.  1495 

it  ma)   be  shown  by  parol  that  the  real  consideration  was  a 
specified  quantity  of  iron,  at  a  price  agreed  upon.' 

§  830.  Reason  for  this  rule  admitting  parol  evidence 
as  to  consideration. — There  is  a  well-defined  distinction 
between  a  release  and  a  mere  receipt.  A  release  extinguishes 
an  obligation.  It  may  be  considered  as  a  conveyance,  inas- 
much as  it  may  be  said  to  transfer  to  the  releasee  a  right  due 
to  the  releasor.  It,  therefore,  as  an  instrument  in  writing, 
cannot  be  contradicted  by  parol  evidence.  But  a  receipt  is  a 
mere  admission  of  payment,  entitled  to  some  weight  as  an 
admission,  but  subject  to  explanation  or  contradiction.  It  is 
at  the  present  time  unnecessary  to  insert  an  acknowledgment 
of  the  receipt  of  the  consideration  in  the  deed  at  all,  as  a  writ- 
ing imports  a  consideration,*  and  even  if  it  did  not,  the  grant- 
or could  not  defeat  his  ov/n  voluntary  deed.  The  reasons  on 
which  the  rule  allowing  parol  evidence  .to  be  received  to  show 
the  true  consideration  of  a  deed  are  very  fully  explained  in  a 
case  in  Kentucky.  As  an  able  exposition  of  the  law  on  this 
subject  we' quote  the  language  of  Mr.  Justice  Robertson,  who 
says:  "The  authorities  on  this  subject  in  England,  as  well 
as  in  the  States  of  this  Union,  are  various  and  contradictory. 
But  we  believe  that  the  consistent  doctrine,  and  that  which 
accords  best  with  analogy,  and  with  the  practice  and  under- 
standing of  mankind,  is  that  an  acknowledgment  in  a  deed  of 
the  receipt  of  the  consideration  is  only  prima  facie  evidence  of 
payment.  The  acknowledgment  is  inserted  more  for  the  pur- 
pose of  showing  the  actual  amount  of  consideration  than  its 

^McCrea  v.   Purmort,   16  Wend.  Bowen   v.    Bell,   20  Johns.   338,    11 

460,  30  Am.  Dec.  103.     This  is  re-  Am.  Dec.  286;  Morse  v.  Shattuck,  4 

garded    as   a    leading   case   on   this  N.  H.  229,  17  Am.  Dec.  419;  Belden 

point,  and  the  cases  sustaining  and  v.    Seymour,  8   Conn.  304,  21   Am. 

in  conflict  with  this  view  are  cited  Dec.  661. 

and    commented    upon.       And    see  ^  See  Merle  v.  Mathews,  26  CaL 

Nickerson  v.  Saunders,  36  Me.  413 ;  455. 
Emmons  v.  Littlefield,  13  Me.  233; 


1496  THE  LAW  OF  DEEDS.  [CHAP.    XXIV. 

payment;  and  it  is  generally  inserted  in  deeds  of  conveyance, 
whether  the  consideration  has  been  paid,  or  only  agreed  to  be 
paid.  If  the  consideration  has  not  been  paid,  such  an  ac- 
knowledgment in  a  deed  would  be  intended  to  mean  that 
the  specified  amount  had  been  assumed  by  note  or  otherwise. 
An  ordinary  receipt  is  not  conclusive  evidence  of  the  facts  at- 
tested by  it.  A  separate  receipt  for  the  price  of  land  would,  it 
seems  to  us,  be  much  stronger  evidence  that  the  money  had 
been  paid  than  the  customary  acknowledgment  in  the  deed 
of  conveyance.  At  all  events,  it  should  be  as  cogent.  But 
it  may  be  contradicted;  why  may  not  the  other?  An  atten- 
tion to  the  principles  upon  which  parol  testimony  is  admissible 
to  explain  or  avoid  the  effect  or  the  apparent  import  of  a  writ- 
ing, may  reconcile  many,  if  not  all,  of  the  authorities  which 
seem  to  be  in  conflict.  One  of  these  principles  is,  that  in  cer- 
tain classes  of  cases,  the  statute  of  frauds  and  perjuries  re- 
quires writing  to  vest  rights;  it  would  be  subversive  of  the 
policy  of  the  statute  to  allow  parol  testimony  to  change  the 
legal  import  of  the  written  evidence  of  a  right  adopted  to 
certify  it;  therefore,  in  all  such  cases,  no  inferior  grade  of  tes- 
timony shall  be  admitted  to  supply  or  control  the  intrinsic 
meaning  of  the  writing.  Another  principle,  and  one  more  uni- 
versal than  the  former  in  its  application,  is  that  wherever  a 
right  is  vested,  or  created,  or  extinguished  by  contract,  or  oih- 
erwise,  and  writing  is  employed  for  that  purpose,  parol  tes- 
timony is  inadmissible  to  alter  or  contradict  the  legal  and 
common-sense  construction  of  the  instrument.  But  that  any 
writing,  which  neither  by  contract,  the  operation  of  law,  nor 
otherwise,  vests  or  passes  or  extinguishes  any  right,  but  is 
only  used  as  evidence  of  a  fact,  and  not  as  evidence  of  a  con- 
tract or  right,  may  be  susceptible  of  explanation  by  extrinsic 
circumstances  or  facts.  Thus,  a  will,  a  deed,  or  a  covcnr'nt 
in  writing,  so  far  as  they  transfer,  or  are  intended  to  be  evi- 
dence of  rights,  cannot  be  contradicted  or  opposed,  in  their  le- 
gal construction,  by  facts  aliunde.     But  receipts  and  other 


CHAP,    XXIV.]  CONSIDERATION.  "  1497 

writings  which  only  acknowledge  the  existence  of  a  simple 
fact,  such  as  the  payment  of  money  for  example,  may  be 
susceptible  of  explanation,  and  liable  to  contradiction  by  wit- 
nesses.   A  party  is  estopped  by  his  deed.    He  is  not  to  be  per- 
mitted to  contradict  it;  so  far  as  the  deed  is  intended  to  pass 
a  right,  or  to  be  the  exclusive  evidence  of  a  contract,  it  con- 
cludes the  parties  to  it.     But  the  principle  goes  no  further. 
A  deed  is  not  conclusive  evidence  of  everything  which  it  may 
contain.     For  instance,  it  is  not  the  only  evidence  of  the  date 
of  its  execution ;  nor  is  its  omission  of  a  consideration  conclu- 
sive evidence  that  none  passed;  nor  is  its  acknowledgment  of 
a  particular  consideration  an  objection  to  other  proof  of  other 
and  consistent  considerations.     And  by  analogy,  the  acknowl- 
edgment in  a  deed,  that  the  consideration  had  been  received, 
is  not  conclusive  of  the  fact.     This  is  but  a  fact.     And  test- 
ing it  by  the  rationality  of  the  rule  which  we  have  laid  down, 
it  may  be  explained  or  contradicted.     It  does  not  necessarily 
and  undeniably  prove  the  fact.     It  creates  no  right.     It  ex- 
tinguishes none.    A  release  cannot  be  contradicted  or  explained 
by  parol,  because  it  extinguishes  a  pre-existing  debt.     But 
no  receipt  can  have  the  effect  of  destroying,  per  se,  any  sub- 
sisting right.     It  is  only  evidence  of  a  fact.     The  payment  of 
the  money  discharges  or  extinguishes  the  debt;  a  receipt  for 
the  payment  does  not  pay  the  debt,  it  is  only  evidence  that 
it  has  been  paid.    Not  so  of  a  written  release.     It  is  not  only 
evidence  of  the  extinguishment,  but  is  the  extinguisher  itself. 
The  acknowledgment  of   the  payment  of   the  consideration 
in  a  deed  is  a  fact  not  essential  to  the  conveyance.     It  is  im- 
material whether  the  price  of  the  land  was  paid  or  not;  and 
the  admission  of  its  payment  in  the  deed  is  generally  merely 
formal.     But  if  it  be  inserted  for  the  purpose  of  attesting  the 
fact  of  payment  (as  it  seldom,  if  ever,  is  in  this  country),  it 
is  not  better  evidence  than  a  sealed  receipt  on  a  separate  paper 
would  be ;  and,  as  we  have  already  said,  it  seems  to  us  that  it 
would  not  be  as  good,  for  obvious  reasons.     The  practice  of 


1498  THE  LAW  OF  DEEDS.  [CPIAP.    XX!V. 

inserting  snch  acknowledgments  in  deeds  is  very  common, 
whether  the  consideration  had  been  paid  or  not.     'For  and  in 

consideration  of  $ ,  in  hand  paid,'  etc.,  is  a  commonplace 

phrase,  which  may  be  found  in  deeds  generally.  And  it  is  sel- 
dom intended  as  evidence  of  payment,  or  for  any  other  prac- 
tical purposes,  except  to  show  the  amount  of  consideration. 
To  establish  the  conclusiveness  of  such  loose  expressions, 
therefore,  might  produce  extensive  injustice.  If  a  note  had 
been  given  for  the  consideration,  and  afterward  without  pay- 
ment a  deed  be  executed  for  the  land,  with  the  commonplace 
phraseology  in  relation  to  the  price,  would  this  be  conclusive 
evidence  that  the  notes  had  been  paid  off  and  discharged? 
Surely  not."  ' 

§  831.  Parol  agreement  to  execute  devise. — An  owner 
of  land  conveyed  it  to  another,  the  deed  expressing  a  consid- 
eration in  money,  and  acknowledging  the  receipt  of  the  con- 
sideration. The  true  consideration,  however,  was  the  parol 
agreement  of  a  third  party  to  devise  to  the  grantor  a  certain 
farm,  and  such  third  person  executed  his  will  at  the  same 
time,  making  in  it  such  a  devise.  The  grantor  having  entered 
upon  the  land  and  cut  timber,  the  court  held  in  an  action  of 
trespass  quare  claiistim  fregit  against  the  grantor,  that  the 
deed  was  made  upon  good  consideration,  and  that  it  was  un- 
necessary to  examine  into  the  cases  in  which  parol  evidence 
is  admitted  or  rejected  for  the  purpose  of  contradicting  the 
consideration.  "The  principle,"  said  the  court,  ^'which  seems 
to  govern  this  case,  is  that  where  a  vendor,  without  fraud 
or  mistake,  accepts  of  the  engagement  of  a  third  person  for 
the  consideration  agreed  on,  and  on  the  faith  of  such  en- 
gagement acknowledges  the  receipt  of  the  consideration,  it  is 
against  equity  that  he  should  be  permitted  to  defeat  the  oper- 
ation of  the  grant  by  showing  that  the  consideration  was  not 
paid.     As  between  vendor  and  vendee  the  consideration  is  to 

9  Gully  V.  Grubbs,  1  Marsh.  J.  J.      387,   389. 


CHAP.    XXIV.] 


CONSIDERATION. 


1499 


be  treated  as  fully  paid,  and  the  vendor  is  estopped  from  de- 
nying it."  * 

§  8b2.  Community  property. — In  some  of  the  States 
the  rules  of  the  common  law  relative  to  property  held  by 
husband  and  wife  have  been  changed,  and  a  distinction  is  made 
between  separate  property  and  community  property.  Separate 
property  is  such  as  is  acquired  before  marriage  or  is  acquired 
afterward  by  gift,  bequest,  devise,  or  descent,  with  the  rents, 
issues,  and  profits  thereof.  All  other  property  acquired  after 
marriage  by  either  husband  or  wife,  or  both,  is  declared  to 
be  community  property.  But  it  is  presumed  that  all  prop- 
erty acquired  after  marriage  is  community  property,  and 
the  party  claiming  it  to  be  separate  property  has  the 
burden  of  establishing  this  fact.^  But  as  a  party  has  the 
right    to    rebut    this    presumption,    the    deed,    so    far    as    it 


iMcMullin  V.  Glass,  27  Pa.  St. 
151. 

2  Moore  v.  Jones,  63  Cal.  12;  Koh- 
ner  v.  Ashenauer,  17  Cal.  581 ;  Ad- 
ams V.  Knowlton,  22  Cal.  288;  Peck 
V.  Vandenberg,  30  Cal.  11 ;  Alver- 
son  V.  Jones,  10  Cal.  9,  70  Am.  Dec. 
689;  Tryon  v.  Sutton,  13  Cal.  493; 
Ramsdell  v.  Fuller,  28  Cal.  42,  87 
Am.  Dec.  103;  McDonald  v.  Bad- 
ger, 23  Cal.  399,  83  Am.  Dec.  123; 
Mott  V.  Smith,  16  Cal.  557;  Bernal 
V.  Gleim,  33  Cal.  668;  Smith  v. 
Smith,  12  Cal.  224,  73  Am.  Dec. 
533;  Meyer  v.  Kinzer,  12  Cal.  252, 
73  Am.  Dec.  538 ;  Tustin  v.  Faught, 
23  Cal.  241;  Althof  v.  Conheim,  38 
Cal.  233,  99  Am.  Dec.  363;  Burton 
V.  Lies,  21  Cal.  91 ;  Pixley  v.  Hug- 
gins,  151  Cal.  131;  Riley  v.  Pehl, 
23  Cal.  70;  Landers  v.  Bolton,  26 
Cal.  420.  But  by  amendment  to 
statute  in  California,  where  prop- 
erty is  conveyed  to  married  woman 


by  instrument  in  writing,  the  pre- 
sumption is  that  title  is  thereby  vest- 
ed in  her  as  her  separate  property. 
C.  C.  §  164.  See,  also,  in  connection, 
with  text :  Schuler  v.  Savings  etc. 
Soc,  1  West  Coast  Rep.  125 ;  Brow- 
der  v.  Clemens,  61  Tex.  587 ;  Rice  v. 
Rice,  21  Tex.  66;  Pearce  v.  Jackson, 
61  Tex.  644;  Zorn  v.  Traver,  45 
Tex.  520 ;  Lott  v.  Keach,  5  Tex.  394 ; 
Brackett  v.  Devine,  25  Tex.  194; 
Cox  v.  Miller,  54  Tex.  25;  Wood 
V.  Wheeler,  7  Tex.  20;  Cooke  v. 
Bremond,  27  Tex.  459,  86  Am.  Dec. 
626 ;  Schmeltz  v.  Carey,  49  Tex.  49 ; 
Huston  V.  Curl,  8  Tex.  239,  58  Am. 
Dec.  110;  Mitchell  v.  Marr,  26  Tex. 
329;  De  Blane  v.  Lynch,  23  Tex. 
25 ;  Love  v.  Robertson^  7  Tex.  6, 
56  Am.  Dec.  41 ;  Chapman  v.  Allen, 
15  Tex.  278.  See  chapter  on  prin- 
ciples of  construction  where  the 
subject  of  community  property  is 
fully  treated. 


1500  THE  LAW  OF  DEEDS.  [CIIAP.    XXIV. 

recites  the  payment  of  a  consideration  by  a  particular  per- 
son, or  from  particular  friends,  may  be  contradicted,'  and 
this  may  be  done  by  parol  evidence.*  It  may  be  shown  by 
such  evidence,  where  it  is  recited  in  a  deed  from  a  mother  to 
her  married  daughter,  that  it  was  made  in  consideration  of 
love  and  natural  affection,  as  well  as  for  a  sum  of  money,  that 
no  money  consideration  existed,  and  that  the  deed  was  one 
of  gift,  having  thus  the  effect  of  making  the  land  so  conveyed 
the  separate  property  of  the  daughter  instead  of  the  common 
property  of  herself  and  husband.^  But  where  the  wife  is  dead 
and  the  record  shows  that  the  title  is  vested  in  the  husband 
alone,  a  purchaser  for  value  of  the  land  is  not  chargeable  with 
notice  that  the  land  was  in  fact  community  property,  where 
there  is  nothing  to  affect  him  with  notice.® 

§  833.     In  North  Carolina  acknowledgment  is  release. 

— In  North  Carolina,  the  rule  seems  to  be  that  the  ac- 
knowledgment in  a  deed  that  the  consideration  has  been  paid 
is,  in  an  action  to  recover  the  purchase  money,  a  release,  and 
is  a  bar  to  the  action.  And  in  one  of  the  cases  in  which  this 
is  held,  the  court  remarks  that  the  effect  of  adhering  to  this 
rule,  "will  only  be  to  make  men  cautious  in  executing  deeds; 
but  if  it  be  understood  that  a  solemn  acknowledgment  under 

8  Moore  v.  Jones,  63  Cal.  12,  which  evidence  has  been  admitted  to 
*  Peck  V.  Brummagim,  31  Cal.  show  that  a  conveyance  made  after 
440,  89  Am.  Dec.  195,  and  cases  marriage  was  separate  property, 
cited  above.  See  Higgins  v.  Johnson,  20  Tex. 
5  Peck  v.  Vandenberg,  30  Cal.  11.  393,  70  Am.  Dec.  394;  Conor  v. 
Commencing  on  page  22  will  be  Conor,  11  Rob.  (La.)  526;  Clai- 
found  a  valuable  and  exhaustive  re-  borne  v.  Tanner,  18  Tex.  70;  Hus- 
view  by  Judge  Sawyer  of  the  cases  ton  v.  Curl,  8  Tex.  240,  58  Am.  Dec. 
bearing  upon  this  subject.  The  110;  Rose  v.  Houston,  11  Tex.  326, 
learned  justice  reviews  first  the  62  Am.  Dec.  478;  Mclntyre  v. 
common-law  authorities  on  the  Chappell,  4  Tex.  187;  Love  v.  Rob- 
question  of  the  extent  to  which  the  ertson,  7  Tex.  8,  56  Am.  Dec.  41.  '  ■" 
consideration  expressed  in  a  deed  ^  Woodward  v.  Suggett,  59  Tex. 
may  be  explained  or  contradicted,  619.  And  see  Morris  v.  Meek,  57 
and    then   adverts    to   the    cases    in  Tex.  385. 


CHAP.    XXIV,]  CONSIDERATION.  1501 

seal  is  insufficient  to  prove  the  payment  of  money,  it  is  to  be 
apprehended  that  many  perjuries  will  arise."  "^  But  it  is  held 
that,  in  a  court  of  equity,  the  obstacle  to  contradicting  the  re- 
cital of  payment  is  removed  when  the  recital  results  from  in- 
advertence and  is  inserted  under  mistake  as  to  its  legal  effect 
and  without  intention  of  the  parties  that  it  shall  operate  to 
preclude  recovery  of  the  purchase  money.^  And  recent  de- 
cisions in  North  Carolina  weaken,  if  they  do  not  absolutely 
overrule,  the  cases,  holding  that  the  recital  of  payment  of  con- 
sideration is  a  bar  in  an  action  to  recover  the  purchase  price.' 

§  834.  Showing  absence  of  consideration  to  defeat 
deed. — As  has  been  shown,  the  courts  allow  the  greatest 
latitude  of  inquiry  as  to  what  consideration  really  passed  be- 
tween the  parties,  and  the  grantor  is  not  estopped  by  his 
acknowledgment  of  payment  in  any  action  which  he  may 
bring  for  the  recovery  of  the  purchase  money  or  other  ob- 
ject, so  long  as  the  validity  of  the  deed  as  an  operative  con- 
veyance is  not  attacked.  But  the  rule  which  we  have  been 
considering  is  subject  to  the  important  qualification  that  parol 
evidence  cannot  be  admitted  for  the  purpose  of  destroying 
the  effect  and  operation  of  the  deed.*  From  this  rule,  it  fol- 
lows that  the  grantor  cannot  claim  that  a  trust  results  to  him- 

''Brockett    v.    Foscue,    1    Hawks  13    S.    E.   215;   Deaver   v.    Deaver, 

(L.  &  Eq.)  64,  67;  Lowe  v.  Weath-  137  N.  C.  240,  49  S.  E.  113. 

erley,  4  Dev.  &  B.  212;  Mendenhall  i  Grout  v.  Townsend,  2  Hill,  554, 

'  V.  Parish,  8  Jones   (N.  C.)   106,  78  557;  Coles  v.  Soulsby,  21   Cal.  47; 

Am.  Dec,  269;  Graves  v.  Carter,  2  Wilkinson  v.  Scott,  17  Mass.  257; 

Hawks    (L.    &    Eq.)    576,    11    Am.  McCrea  v,  Purmort,  16  Wend,  460, 

Dec.  786;  Spiers  v.  Clay's  Admin-  30    Am,    Dec,    103;    Kinnebrew    v, 

istrator,  4  Hawks  (L,  &  Eq.)  22,  Kinnebrew,  35  Ala.  636;   Beach  v. 

8  Shaw  V.  Williams,  100  N.  C.  Cooke,  28  N.  Y.  537,  86  Am.  Dec, 
272,   6    S.    E.    196.  266;  Stackpole  v.  Robbins,  47  Barb. 

9  See  in  this  connection:  Faust  219;  Arthur  v.  Arthur,  10  Barb.  24; 
V.  Faust,  144  N.  C,  383,  57  S,  E.  22;  Bullard  v.  Briggs,  7  Pick.  537,  19 
Kendrick  v,  Ins.  Co.,  124  N.  C,  315,  Am.  Dec,  202;  Goodspeed  v,  Ful- 
32  S,  E.  728,  70  Am,  St.  Rep.  592;  ler,  46  Me.  141,  71  Am.  Dec.  572; 
Barbee  v.   Barbee,   108   N.   C.   581,  Rockwell  v.  Brown,  54  N.  Y.  213; 


1502 


THE  LAW  OF  DEEDS. 


[chap.    XXV. 


self  when  he  has  executed  a  deed  without  consideration. 
This  would  be  defeating  the  deed  by  parol  evidence,  which 
cannot  be  done.^  Creditors,  of  course,  can  show  that  a  deed 
was  made  without  consideration  for  the  purpose  of  defeating 
it.» 


Peck  V.  Vandenberg,  30  Cal.  23. 
See,  also,  Commercial  Bank  etc.  v. 
Norton,  1  Hill,  509;  Doe  v.  Beard- 
sley,  2  McLean,  412,  414;  Philbrook 
V.  Delano,  29  Me.  410;  Goodwin  v. 
Gilbert,  9  Mass.  510;  Wilt  v.  Frank- 
lin, 1  Binn.  502,  2  Am.  Dec.  474; 
Barnum  v.  Childs,  1  Sand.  58,  62; 
Winans  v.  Peebles,  31  Barb.  371; 
Farrington  v.  Barr,  36  N.  H.  86; 
Graves  v.  Graves,  29  N.  H.  129, 
Strong  V.  Whybark,  204  Mo.  341, 
12  L.R.A.(N.S.)  240,  102  S.  W. 
968;  3  Wash.  Real  Prop.  (4th  ed.) 
377. 

2  Burn  V.  Winthrop,  1  Johns.  Ch. 
329;  Burt  v.  Wilson,  28  Cal.  632; 
Graves  v.  Graves,  29  N.  H.  129; 
Ownes  r.  Ownes,  23  N.  J.  Eq.  60; 


Jackson  v.  Cleveland,  15  Mich.  94, 
90  Am.  Dec.  266;  Graff  v.  Rohrer, 
35  Md.  327;  Hutchins  v.  Lee,  1  Atk. 
447;  Lloyd  v.  Spillett,  2  Atk.  250; 
Young  v.  Peachy,  2  Atk.  257.  And 
see  Morris  v.  Morris,  2  Bibb.  311; 
Randall  v.  Phillips,  3  Mason,  388; 
McKenney  v.  Burns,  31  Ga.  295. 

3  Peck  V.  Vandenberg,  30  Cal.  22 ; 
Johnson  v.  Taylor,  4  Dev.  355.  And 
see  Hubbard  v.  Allen,  59  Ala.  296; 
Fellows  V.  Smith,  40  Mich.  689. 
See  where  the  recital  of  a  consid- 
eration in  a  deed  from  a  corpora- 
tion showed  that  the  act  was  not 
authorized  by  the  charter:  Franco- 
Texan  Land  Co.  v.  McCormick,  85 
Tex..416,  34  Am.  St.  Rep.  815.  See, 
also,  §§  710,  ante,  and  1000,  post. 


CHAPTER  XXV. 


PRINCIPLES    OF    CONSTRUCTION. 


5  835. 
836. 
836a. 
837. 
838. 

838a. 

838b. 


838c. 

839. 

840 

841. 

842. 

843. 

843a. 

844. 

844a. 

845. 
846. 
846a. 

846b 
846c. 


846d 


PART  I. 

GENERAL   PRINCIPLES. 

Construction    for   court. 

Intention    of   parties. 

Unusual    form  of   deed. 

Technical   terms. 

Expression  of  grantor's  mo- 
tive. 

Expressions  limiting  title 
conveyed. 

Subsequent  clauses  neither 
enlarging  nor  limiting 
grant. 

Further  consideration — Ex- 
ecution sales. 

Surrounding    circumstances. 

This  is  but  one  rule. 

Appearance  at  time  of  sale. 

Illustrations. 

Grammatical  construction. 

Repugnant  clauses. 

Resort   to   punctuation. 

Deed  should  be  construed 
as  a  whole. 

Construing   deeds   together. 

Rule   in   Shelley's  case. 

"Heirs"  qualified  by  other 
words. 

Illustrations. 

"Heirs"    construed    as    chil- 
dren   to    effectuate    inten- 
tion. 
.  Illustrations. 

1503 


§  846e. 

Limitations  to  children. 

847. 

Lawful    issue. 

848. 

Construction  against  grant- 

or. 

849. 

Divers  estates. 

849a. 

Deed    of    executor    passing 

individual  interest. 

850. 

Construction    favorable    to 

operation  of  deed. 

850a. 

Merger  of  contract  to  con- 

vey in  deed. 

850b. 

Stipulation    surviving  deed. 

850c. 

Deed  correcting  prior  deed. 

851. 

Contemporaneous       exposi- 

tion. 

852. 

Election    of    grantee. 

853. 

Passing      present      interest 

with   other  provisions  to 

take  effect  upon  death  of 

grantor. 

854. 

No  present  interest  passing. 

854a. 

Application    of    this     prin- 

ciple. 

855. 

Tendency    to    uphold    deed. 

855a. 

Deed  or  will. 

855b. 

Same    subject — Further    il- 

lustrations. 

855c. 

When  a  will. 

856. 

Conveyance    of    estate    not 

owned  by  grantor. 

857. 

Conveyance  in  fee  with  con- 

dition   upon    a    right    of 

possession   in   the   grant- 

ors. 

858. 

Limited    estates. 

1504 


THE  LAW   OF  DEEDS. 


[chap.    XXV. 


859. 

Same  subject— Continued. 

§  868. 

860. 

Conveyance     to     wife     and 
children. 

868a. 

861. 

Relation   from  re-execution 

of  lost  deed. 

869. 

862. 

Water  power. 

862a. 

Right  to  rent. 

870. 

862b. 

Deed   on   last    day   of    rent 
term. 

871. 

862c. 

Right  to  rent  when  vendor 

retains    possession. 

872. 

862d. 

Liability    for    rent   of   pur- 
chaser in  possession. 

872a. 

863. 

Appurtenances      and      inci- 
dents. 

873. 

864. 

Construction    of    particular 

874. 

words. 

875. 

PART  IL 

875a. 
876. 

COMMUNITY   PROPERTY. 


865.  In  what  States  exist. 

866.  The  civil  law. 

867.  In  other   countries. 


877. 

878. 
879. 
880. 


Presumption  of  community 
property. 

Improvemnts  •on  comrriu- 
nity  property. 

Grants  from  the  govern- 
ment— Rule    in    Texas. 

In  California  and  Louisi- 
ana. 

Land  purchased  by  earn- 
ings of  wife. 

Gift  to  husband  or  wife. 

Subsequently  acquired  title 
passes. 

Voluntary  gift  in  fraud  of 
wife. 

Title  acquired  after  volun- 
tary separation. 

Gift  in  compensation  for 
services. 

Unrecorded  tax  deeds. 

Rebuttal  of  presumption  of 
community  property. 

Presumption  when  deed  is 
made  to  wife. 

The  rule  in  Texas. 

Purchase    on   credit. 

Tortious  possession  and 
deed  in  consideration  of 
surrender    thereof. 


§  835.  Construction  for  court. — It  is  not  intended  in 
this  chapter  to  enter  into  a  detailed  examination  of  the  num- 
ber of  cases  decided  on  the  import  of  particular  language 
found  in  the  deed.  There  are,  however,  a  few  well-established 
rules  of  construction  which  are  resorted  to  by  courts  in  the 
construction  of  deeds.  But  it  is  doubtful  how  far  arbitrary 
rules  can  be  of  service  where  the  only  object  is  to  determine 
the  intention  of  the  parties.  In  fact,  the  truth  was  well  ex- 
pressed by  Mr.  Justice  Sanderson,  who  said  that  "in  the  con- 
struction of  written  instruments,  we  have  never  derived  much 
aid  from  the  technical  rules  of  the  books.  The  only  rule  of 
much  value — one  which  is  frequently  shadowed  forth,  but 
seldom,  if  ever,  expressly  stated  in  the  books — is  to  place  our- 


CHAP.    XXV.]        PRINCIPLES  OF  CONSTRUCTION.  1505 

selves  as  near  as  possible  in  the  seats  which  were  occupied  by 
the  parties  at  the  time  the  instrument  was  executed ;  then,  tak- 
ing it  by  its  four  corners,  read  it."  ^  This  is  the  main  object 
of  all  construction.  When  the  intention  of  the  parties  can  be 
ascertained,  nothing  remains  but  to  effectuate  that  intention. 
In  this  chapter  are  given  some  of  the  general  rules  of  con- 
struction, while  in  other  chapters  will  be  found  sections  re- 
lating to  the  construction  of  language  used  in  those  clauses 
which  form  the  different  parts  of  a  deed.  The  construction 
of  a  deed  is  for  the  court.^  But  if  the  language  of  the  deed 
will  permit  more  than  one  inference  to  be  drawn  from 
it,  and  such  inferences  depend  on  controverted  facts, 
the  jury  is  to  pass  on  the  deed,'  and  if  the  construc- 
tion is  dependent  upon  the  meaning  the  parties  attached 
to  the  words  or  upon  extrinsic  facts  in  connection  with  the 
deed,  the  question  is  a  mixed  one  of  law  and  fact.*  If  the  de- 
scription is  ambiguous,  a  disputed  question  of  fact  as  to  the 
grantor's  intention,  is  one  for  the  jury,^  and  so  it  is  a  question 
of  fact  if  the  ambiguity  is  created  by  a  collateral  matter.®  In 
determining  whether  growing  crops  passed  by  the  deed  to  the 
grantee,  dependent  upon  the  fact  whether  the  deed  should  be- 
come operative  on  the  day  of  its  delivery  or  on  the  day  it  bears 

Mn  Walsh  v.  Hill,  38  Cal.  481,  S.  W.  682;  Hurst  v.  Hurst,  7  W. 

487.  Va.  289,  339;  Snooks  v.  Wingfield, 

2Trotier  v.  St.  Louis,  B.  &  S.  Ry.  52  W.  Va.  441,  44  S.  W.  277;  Ten- 
Co.,  180  111.  471,  54  N.  E.  487;  Mer-  derson  v.  Missouri  Tie  etc.  Co.,  104 
win  V.  Morris,  71  Conn.  555,  42  Atl.  Mo.  App.  290,  78  S.  W.  819. 
855 ;  Holmes  v.  Weinheimer,  66  S.  ^  Glover  v.   Gasque,  67  S.  C.   18, 
C.  IS,  44  S.  E.  82;  New  River  Min-  45  S.  E.  113. 

eral  Co.  v.  Painter,  100  Va.  507,  42  *  Trustees  etc.  of  Town  of   East 

S.  E.  300;  City  of  Memphis  v.  Wait,  Hampton   v.  Vail,    151    N.    Y.   463, 

102    Tenn.    274,    52    S.    W.     161;  45  N.  E.   1030. 

Phoenix  Ins.   Co.  v.  Neal,  23  Tex.  ^Leverett  v.  Bullard,  121  Ga.  534, 

Civ.  App.  427,  56  S.  W.  91 ;  Eddy  49  S.  E.  591. 

V.   Bosley,  34   Tox.    Civ.   App.    116,  6  Rock  v.  Greenewald,  22  Pa.  Su- 

78  S.  W.  565 ;  Paul  v.  Chenault,  44  per.   Ct.  641. 
Deeds,  Vol.  II.— 95 


t506 


THE  LAW   OF  DEEDS. 


[chap.    XXV. 


date,  the  question  is  for  the  JU17;'  and  if  the  contract,  while 
sufficiently  certain  to  pass  the  property,  is  so  indefinite  on  the 
passing  of  timber,  as  to  necessitate  a  resort  to  parol  evidence 
to  determine  its  meaning,  the  question  of  what  actually  was 
transferred  by  the  conveyance  is  for  the  jury  to  decide.'  The 
question  of  the  identity  of  the  land  conveyed  is  one  of  fact 
and  not  of  law.^  Where  the  name  of  the  grantee  written  in  a 
deed  might  be  read  either  as  "Mack"  or  as  "Mock"  the  court 
has  the  power  to  determine  which  name  was  meant  to  be 
used.^  As  it  is  the  duty  of  the  court  to  construe  a  deed  offered 
in  evidence,  evidence  cannot  be  received  of  the  construction 
given  to  it  by  a  party  to  it.^  It  is  the  duty  of  the  court  to  con- 
strue a  deed  according  to  its  legal  effect  in  the  absence  of 
ambiguity.^  Where  there  is  ambiguity,  however,  the  question 
should  be  submitted  to  the  jury.*  The  interpretation  may  in 
some  cases  be  a  mixed  question  of  law  and  fact.^ 


'Kammrath  v.  Kidd,  89  Minn. 
380,  95  N.  W.  213,  99  Am.  St.  Rep. 
603. 

8  Ward  V.  Gay,  137  N.  C.  397,  49 
S.  E.  884. 

9  McCasland  v.  Aetna  Life  Ins. 
Co.,  108  Ind.  130,  9  N.  E.  119. 

1  Tenderson  v.  Missouri  Tie  etc. 
Co ,  104  Mo.  App.  290,  78  S.  W.  819. 
But  where  a  plaintiff  named  Wil- 
liam "Halladay"  read  in  an  action 
to  establish  title  a  deed  in  which 
the  grantee  was  named  as  William 
"Halliday,"  the  court  held  that  it 
was  for  the  jury  to  decide 
whether  the  plaintiff  was  the  gran- 
tee named  in  the  deed :  Halladay  v. 
Gass,  64  N.  Y.  Supp.  825,  51  App. 
Div.  539.  See,  also,  McCartney  v. 
McCartney,  93  Tex.  359,  55  S.  W. 
310;  Cochran  v.  Missouri  K.  &  T. 
367. 

2  Folk  V.  Graham,  82  S.  C.  66,  62 
.S.  E.  1106. 

2  Merwin  v.  Morris,  71  Conn.  555, 


42  Atl.  855 ;  Trotier  v.  R.  R.  Co.,  180 
III.  471,  54  N.  E.  487;  McGuigan 
V.  Hennessy,  24  Mont.  202,  61  Pac. 
1 ;  Holmes  v.  Weinheimer,  66  S.  C. 
18,  44  S.  E.  82;  Memphis  v.  Waite, 
102  Tenn.  274,  52  S.  W.  161 ;  New 
River  etc.  Co.  v.  Painter,  100  Va. 
507,  42  S.  E.  300 ;  Snooks  v.  Wing- 
field,  52  W.  Va.  441,  44  S.  E.  277; 
Fenderson  v.  Tie  etc.  Co.,  104  Mo. 
App.  290,  78  S.  W.  819;  Bank  v. 
Hawkins,  30  R.  I.  171,  73  Atl.  617 ; 
Folk  V.  Graham,  82  S.  C.  66,  62  S. 
E.  1106;  Eddy  v.  Bosley  (Tex.)  78 
S.  W.  565;  R.  Co.  v.  Dunham 
(Tex.)  88  S.  W.  849. 

*Kammrath  v.  Kidd,  89  Minn, 
380,  95  N.  W.  213 ;  Leverett  v.  Bul- 
lard,  121  Ga.  534,  49  S.  E.  591 ;  Ash- 
craft  V.  Cox    (Ky.)   11  S.  W.  718. 

5  East  Hampton  v.  Vail,  151  N. 
Y.  463,  45  N.  E.  1030.  And  see  Gil- 
lespie V.  Powell,  132  Ga.  353,  64 
S.  E.  80;  Ward  v.  Gay,  137  N.  C 
397,  49  S.  E.  884;  Bank  v.  Hawk- 


CHAP,    XXV.]        PRINCIPLES  OF  CONSTRUCTION.  1507 

§  836.  Intention  of  parties. — As  in  the  case  of  all  con- 
tracts, the  intent  of  the  parties  to  the  deed,  when  it  can  be  ob- 
tained from  the  instrument,  will  prevail,  unless  counteracted 
by  some  rule  of  law.®  A  deed  conveyed  a  certain  gore  or 
strip  of  flats  described  in  the  deed,  and  continued :  "The 
said  strip  or  gore  to  begin  at  the  lower  end  of  Milk  Wharf, 
so  called,  and  to  run  four  hundred  and  eighty  feet  to  the  chan- 
nel. And  the  said  grantors,  for  the  consideration  aforesaid, 
hereby  release  to  the  said  grantee,  or  to  any  other  person  or 
persons  that  may  build  any  wharf  on  the  western  line  of  said 
strip  of  flats  and  in  the  continuation  of  the  said  new  wharf 
and  on  the  line  thereof  to  the  eastward,  all  our  right,  title  and 
interest  to  the  said  gore  of  flats  to  the  channel,  or  so  far  as  our 
right  extends,  for  the  use  and  benefit  of  the  proprietors  of  the 
wharf  which  may  be  built  as  aforesaid.  To  have  and  to 
hold  the  said  granted  and  bargained  premises,  with  the  privi- 
leges and  appurtenances  thereof,  to  the  said  grantee,  his  heirs 
and  assigns,  to  his  and  their  use  and  behoof  forever."  The 
deed  also  contained  the  usual  covenants  of  warranty,  and  it 
was  held  that  by  the  first  description  the  grantee  took  an  ab- 
solute estate  in  fee  of  the  property  described,  and  that  by  the 

ins,  30  R.  I.  171,  IZ  Atl.  617.    The  25  Me.  51 ;  Wallis  v.  Wallis,  4  Mass. 

words  of  the  deed  should  be  inter-  135,  3   Am.  Dec.  210;    Marshall  v. 

preted    to    common    understanding  Fisk,  6   Mass.  24,  4  Am.  Dec.  76; 

and  usage:    Talbert  v.   Mason,   136  Barnes  v.  Haybarger,  8  Jones   (N. 

Iowa,    373,    14    L.R.A.(N.S.)     878,  C.)   76;  Jennings  v.  Brizeadine,  44 

113  N.  W.  918,   125  Am.   St.  Rep.  Mo.   332;   Jackson  v.   Blodgett,    16 

259;   Clark  v.   Boosey,  52  Or.  448,  Johns.  172;  Mills  v.  Cattin,  22  Vt. 

97   Pac.  755 ;   Sweeney  v.   Landers,  98 ;  Waterman  v.  Andrews,  14  R.  I. 

80  Conn.  575,  69  Atl.  566.  589;      Cumberland     Building     and 

BBrannan  v.  Mesick,  10  Cal.  95;  Loan  Assn.  v.  Aramingo  Episcopal 

Thomas  v.  Hatch,  3  Sum.  170;  Bent  Church,  13  Phila.  171 ;  Pike  v.  Mon- 

V.  Rogers,  137  Mass.  192;  Bryan  v.  roe,  36  Me.  309,  58  Am.  Dec.  751; 

Bradley,    16    Conn.    474;    Litchfield  Jackson    v.    Myers,    3    Johns.    388, 

V.  Cudworth,  15  Pick.  23;  Racouil-  3  Am.  Dec.  504;  Callis  v.  Lavelle, 

lat  V.  Sansevain,  32  Cal.  376;  Frost  44  Vt.  230;  Smith  v.  Brown,  66  Tex. 

V.  Spaulding,  19  Pick.  445,  31  Am.  543. 
Dec  150;  Deering  v.  Long  Wharf, 


1508 


THE  LAW   OF  DEEDS. 


[chap.    XXV. 


second  description  all  the  right,  title,  and  interest  of  the  grant- 
tors  to  the  property  described  passed  to  the  grantee,  and  not 
to  the  use  and  benefit  of  the  wharf  which  might  be  built.'  If 
a  question  of  law  arises  upon  the  construction  of  a  deed,  it  is 
the  province  of  the  court  to  construe  it  and  to  decide  from  the 
language  what  the  intention  of  the  parties  was.^  When  the 
intention  of  the  parties  can  be  plainly  ascertained,  arbitrary 
rules  are  not  to  be  resorted  to.^  The  rule  is  that  the  inten- 
tion of  the  parties  is  to  be  ascertained  by  considering  all  the 
provisions  of  the  deed,  as  well  as  the  situation  of  the  parties, 
ind  then  to  give  effect  to  such  intention  if  practicable,  when 
not  contrary  to  law.^  A  party  executed  to  four  others  an  in- 
5trup;ent,  which,  beginning  in  the  ordinary  form  of  a  bar- 
-j^air  and  sale  deed,  purported  to  convey  to  them,  for  a  certain 
'.op..iideration,   the  property  described,   with  a  general   war- 


7  Deering  v.  Long  Wharf,  25  Me. 
51. 

8  Mill  ford  V.  Le  Franc,  26  Cal.  88. 
See,  also.  Bell  v.  V/oodward,  46  N. 
H.  2)Z7 ;  Thornberry  v.  Churchill, 
4  Mon.  29,  16  Am.  Dec.  125 ;  Hurley 
V.  Morgan,  1  Dev.  &  B.  425,  28 
Am.  Dec.  579. 

9  Kimball  v.  Semple,  25  Cal.  449 ; 
Prentice  v.  Duluth  Storage  and  For- 
warding Co.,  58  Fed.  Rep.  437 ;  Free 
and  Accepted  Masons  v.  School 
Town  of  -Newpoint,  138  Ind.  141; 
United  States  v.  Cameron,  21  Pac. 
Rep.   177    (Ariz.   Apr.  6,   1889). 

1  Pike  V.  Monroe,  36  Me.  309,  58 
Am.  Dec.  751 ;  Means  v.  Presbyte- 
rian Church,  3  Watts  &  S.  303; 
Moore  v.  Griffin,  22  Me.  350;  Mills 
V.  Catlin,  22  Vt.  98;  Benedict  v. 
Gaylord,  11  Conn.  332,  29  Am.  Dec. 
299;  Chouteau  v.  Suydam,  21  N.  Y. 
170;  Wolfe  v.  Scarborough,  2  Ohio 
St.  361.  See  Churchill  v.  Reamer, 
8  Bush,   256;   Clute  v.   New   York 


Cent.  etc.  R.  R.  Co.,  120N.Y267; 
Bartholomew  v.  Muzzy,  61  Conn. 
387,  29  Am.  St.  Rep.  206;  Burnett 
V.  Piercy,  149  Cal.  178,  86  Pac.  603 ; 
Atlantic  City  v.  Realties  Co.  (N.  J.) 
70  Atl.  345;  Hopkins  v.  Hopkins 
(Tex.)  114  S.  W.  673;  Bowden  v. 
PaUerson  (Tex.)  Ill  S.  W.  182. 
The  effort  should  be  so  to  construe 
the  deed  as  seems  most  likely  to 
effectuate  the  intention  of  the  par- 
ties:  Melick  V.  v.  Pidcock,  44  N. 
J.  Eq.  525,  6  Am.  St.  Rep.  901; 
Post  V.  Weil,  115  N.  Y.  361,  5 
L.R.A.  422,  12  Am.  St.  Rep.  809; 
Eerridge  v.  Glassey,  112  Pa.  St. 
442,  56  Am.  Rep.  324;  Eisely  v. 
Spooner,  23  Neb.  470,  8  Am.  St. 
Rep.  128;  Bradley  v.  Zehmer,  82 
Va.  685 ;  Lowdermilk  v.  Bostick,  98 
N.  C.  299.  But  a  deed  can  convey 
nothing  except  what  it  describes, 
whatever  may  have  been  the  inten- 
tion of  the  parties :  Thayer  v.  Fin- 
ton,  108  N.  Y.  394. 


CHAP.    XXV.]        PRINCIPLES  OF  CONSTRUCTION.  1509 

ranty  of  title.  Then  followed  a  power  of  attorney  giving  au- 
thority to  the  grantees  to  take  possession  of  the  property,  and 
to  sell  and  convey,  or  lease,  the  same  in  the  name  of  the  grant- 
or, and  to  receive  the  purchase  money  and  rents.  The  grant- 
or also  agreed  not  to  sell,  lease,  or  authorize  any  other  person 
to  sell  or  lease  the  property,  or  revoke  the  power  of  attorney, 
unless  default  was  made  in  the  payment  of  the  consideration 
in  the  installments  mentioned  in  the  deed.  The  deed  contained 
a  covenant  that  if  the  amount  was  paid  at  the  time  agreed 
upon,  the  instrument  should  take  effect  as  a  full  conveyance 
in  fee  of  the  land,  and  also  a  covenant,  in  case  of  the  grantor's 
failure  to  fulfill  his  covenants,  the  instrument  should  take  ef- 
fect as  a  conveyance.  The  instrument  was  held  to  be  a  con- 
veyance upon  a  condition  precedent,  until  the  performance 
of  which  no  title  passed  to  the  grantees.  On  performance  of 
the  condition  the  title  would  vest  in  the  grantees  without  any 
further  act  on  the  grantor's  part,  but  until  that  time  the  title 
remained  in  the  grantor.^  In  a  deed  the  grantor  conveyed 
"all  his  right,  title,  interest,  and  estate  in  and  to  all  the  estate, 
real,  personal,  or  mixed,  which  J.  C  and  J.  C,  junior,  died, 
seised  or  possessed  of."  It  was  held  that  the  word  "and" 
did  not  mean  the  joint  estate  alone,  but  that  the  deed  con- 
veyed the  interest  of  the  grantor  in  all  the  estate,  whether  joint 
or  several.^  "It  was  the  manifest  intent  of  the  parties,  that 
the  grantor's  right  in  all  the  estate,  whether  joint  or  several, 
should  pass.  And  such  must  be  the  operation  of  the  deed. 
It  is  not  uncommon  to  construe  and  to  mean  or,  and  or  to 
mean  and,  when  necessary  to  carry  into  effect  the  intention 
of  the  parties."  *  A  deed  conveyed  to  the  grantee,  "and  her 
heirs  and  assigns  forever,  a  certain  piece  or  parcel  of  land 
situated,  lying,  and  being  in  Halifax,  and  is  the  same  farm  on 

^Brannan  v.  Mesick,   10  Cal.  95.  Subsequent  acts  of  the  parties  may 

'Litchfield  v.  Cudworth,  15  Pick.  be  considered  in  construing  an  am- 

23.  biguous   deed :    Wilson   v.   Carrico, 

♦Litchfield    v.    Cudworth,    supra.  140  Ind.  533,  49  Am.  St.  Rep.  213. 


1510 


THE  LAW   OF  DEEDS. 


[chap.    XXV. 


which  [the  grantor]  now  lives ;  that  is  to  say,  one  undivided 
half  of  the  same,  with  the  buildings  thereon,  with  the  privi- 
leges and  appurtenances  thereto  belonging,  .  .  .  always 
provided  that  in  the  event  of  her  decease,  the  same  shall  re- 
vert to  me,  if  living,  if  not,  to  my  heirs,  being  the  same  farm 
which  I  purchased  of  Darius  Plumb."  The  habendum  was  to 
the  grantee,  "and  her  heirs  and  assigns,  to  her  and  their  own 
proper  use,  benefit,  and  behoof  forever."  The  deed  con- 
tained the  usual  covenants  of  warranty,  seisin,  and  against 
encumbrances,  and  also  this  clause  following  the  covenants: 
"Always  reserving  the  reversion  to  myself  and  heirs,  as  stipu- 
lated in  the  deed."  The  court  held  that  the  manifest  intent 
was  to  convey  an  estate  for  life  and  not  an  estate  in  fee,  and 
the  deed  must  take  effect  according  to  such  intent.^    In  a  re- 


splagg  V.  Eames,  40  Vt.  16,  94 
Am.  Dec.  363.  And  see,  also,  Col- 
lins V.  Lavelle,  44  Vt.  230;  Colby 
V.  Colby,  28  Vt.  10.  No  peculiar 
form  of  words  is  necessary  to  make 
a  deed  operative.  Any  words 
showing  an  intention  to  convey  will 
be  sufficient:  Baker  v.  Westcott, 
73  Tex.  129;  Jennings  v.  Brezead- 
ine,  44  Mo.  335 ;  American  Emi- 
grant Co.  V.  Clark,  62  Iowa,  182. 
An  instrument  in  the  following 
form  will  convey  the  title  to  real 
estate:  "Know  all  men  by  these 
presents,  that  I,  John  Martin,  of  the 
city  of  Philadelphia,  mariner,  in 
consideration  of  the  sum  of  one 
thousand  dollars,  to  me  paid  by 
Elizabeth  Martin,  gentlewoman,  the 
receipt  whereof  is  hereby  acknowl- 
edged, as  also  for  divers  other  good 
and  valuable  considerations,  have 
granted,  bargained,  sold,  conveyed, 
and  assigned,  and  by  these  presents 
do  grant,  bargain,  sell,  convey,  and 
assign  all  debts,  dues,  or  demands 
wheresoever  and   whatsoever,   real. 


personal,  or  mixed,  which  are  due 
and  owing,  or  of  right,  belonging 
unto  me,  either  by  virtue  of  in- 
heritance, legacies,  bonds,  notes, 
book  debts,  or  otherwise,  or  which 
hereafter  may  become  due.  The 
said  Elizabeth  Martin  to  have  and 
to  hold  the  same  unto  her,  the  said 
Elizabeth,  her  heirs  and  assigns 
forever":  McWilliams  v.  Martin, 
12  S.  &  R.  269,  14  Am.  Dec.  688. 
And  see  Harper  v.  Blean,  3  Watts, 
475,  27  Am.  Dec.  367 ;  Dice  v.  Shef- 
fer,  3  W.  &  S.  419;  Stone's  Appeal, 
2  Pa.  St.  432.  Where  the  grantee 
duly  signed  and  acknowledged  an 
indorsement  on  a  deed  in  these 
words :  "I  assign  the  within  for 
value  received,"  it  is  held  that  the 
title  to  the  land  described  in  the 
deed  will  pass  to  the  assignee: 
Harlowe  v.  Hudgins,  84  Tex.  107, 
31  Am.  St.  Rep.  21.  See,  also. 
Lemon  v.  Graham,  131  Pa.  St.  447, 
6  L.R.A.  663.  But  it  is  held  in 
Lessee  of  Bentley's  Heirs  v.  De 
Forest,   2   Ohio  221,    15   Am.   Dec. 


CHAP.    XXV. J        PRINCIPLES  OF  CONSTRUCTION.  IS  11 

cent  case  in  Alabama,  the  court  through  Mr.  Justice  Denson, 
said :  "It  is  true  the  real  inquiry  in  the  construction  of  a  deed 
is  to  establish  the  intention  of  the  parties,  especially  that  of 
the  grantor;  but  a  corollary  to  this  rule  is  that  the  intention 
must,  if  possible,  be  gathered  from  the  language  used  in  the 
instrument  submitted  for  construction,  and  that,  when  it  can 
in  this  way  be  ascertained,  arbitrary  rules  are  not  to  be  resort- 
ed to.  If,  however,  two  conflicting  intentions  are  expressed, 
there  is  no  alternative  but  to  construe  the  deed  by  these  rules 
even  though  they  may  be  denominated  arbitrary."  * 

§  836a.  Unusual  form  of  deed. — Although  the  form 
of  a  deed  may  be  unusual,  the  intention  of  the  grantor,  when 
it  appears,  must  be  given  effect,  and  the  deed  will  not  be  de- 
clared void  unless  the  various  clauses  are  so  repugnant  as  to 
leave  no  other  course  to  be  followed.'  If  a  husband  executes 
a  deed  to  his  wife  containing  a  stipulation  that  when  she 
shall  cease  to  live  with  him  as  his  wife  the  title  shall  revert  to 
him,  the  title  will  not  revert  on  the  wife's  commission  of 

546,  that  an  indorsement  on  a  deed  also,  the  following  authorities :  17 
assigning  it  does  not  convey  an  in-  Am.  &  Eng.  Enc.  Law  p.  2;  13  Cyc. 
terest  in  the  land  described,  and  nt  Law  &  Proc.  p.  694  (11)  ;  Camp- 
best  can  be  considered  only  an  exe-  bell  v.  Gilbert,  57  Ala.  569;  Camp- 
cutory  contract.  See,  also,  Doe  ex  bell  v.  Noble,  110  Ala.  394,  19  So. 
dem.  Liiiker  v.  Long,  64  N.  C.  296;  28;  May  v.  Ritchie,  65  Ala.  602; 
Arms  V.  Burt,  1  Vt.  303,  18  Am.  Green  Bay  &  M.  Canal  Co.  v.  Hew- 
Dec.  680;  Tunstall  v.  Long,  109  N.  ett,  55  Wis.  96,  42  Am.  Rep.  701. 
C.  316.  But  the  deed  must  contain  12  N.  W.  382;  Maker  v.  Lazell,  83 
v.'ords  of  some  kind  indicating  an  Me.  562,  23  Am.  St.  Rep.  795,  22 
intent  to  convey :  Webb  v.  Mullins,  Atl.  474;  Wilkins  v.  Norman,  139 
78  Ala.  Ill;  Hummelman  v.  N.  C.  40,  111  Am.  St.  Rep.  767,  51 
Mounts,  87  Ind.  178;  Brown  v.  S.  E.  797;  Robinson  v.  Payne,  58 
Manter,  21  N.  H.  528,  53  Am.  Dec.  Miss.  690.  A  construction  will  be 
223 ;  Sharp  v.  Bailey,  14  Iowa,  387,  given  to  a  deed  to  effectuate  the  in- 
81  Am.  Dec.  489;  Davis  v.  Davis,  tention  of  the  parties:  Cook  v. 
43  Ind.  561.  Hensler,   57    Wash.   392,    107    Pac. 

6  Dickson  V.  Van  Hoose,  157  Ala.  178. 

459,    19   L.R.A.(N.S.)    719,   47    So.  '  Cravens  v.  White,  7Z  Tex.  577, 

718,  citing  §§  836  and  837  supra  and,  15  Am.  Rep.  803. 


1512  THE  LAW   OF  DEEDS.  [CHAP.    XXV. 

adultery.*  If  the  only  reason  urged  for  construing  a  particu- 
lar clause  in  a  deed  is  founded  upon  the  technical  words  which 
have  been  used,  the  court  may  disregard  them  in  determining 
the  effect  to  be  given  to  the  conveyance,  and  such  a  construc- 
tion should  be  adopted  as  on  a  general  view  of  the  instru- 
ment, and  of  the  intention  which  the  parties  had  in  view,  seems 
most  likely  to  carry  their  intention  into  effect.^  To  effectuate 
the  intention  of  the  parties  the  whole  deed  should  be  read,  and, 
if  possible,  effect  should  be  given  to  the  habendum  clause  as 
well  as  to  the  clause  containing  the  words  of  grant,  as  the  ob- 
ject of  the  habendum  clause  is  to  enlarge,  limit  or  explain  the 
estate  conveyed,^  and  a  construction  will  be  adopted  which 
will  give  validity  to  the  deed  rather  than  one  which  will  nullify 

§  836b.  Recognition  of  moral  and  legal  obligation. — 

So,  if  a  deed  is  susceptible  of  two  interpretations,  one  of  which 
is  a  recognition  of  a  moral  and  legal  obligation  on  the  grantor 
towards  a  third  person,  while  the  other  would  tend  to  show 
the  grantor's  commission  of  fraud,  the  court  will  assume  that 
he  intended  to  respect  the  right  of  such  third  person  and  to 
have  his  conduct  in  accordance  with  the  moral  law.'  Technic- 
al terms  in  the  deed  must  yield  to  the  intent  of  the  grantor 
when  the  same  can  be  ascertained,  and  is  not  repugnant  to 
any  rule  of  law.*  And  arbitrary  rules  will  not  be  applied  when 
the  real  intention  can  be  secured  from  the  language  of  the 
deed,^  as  the  main  object  of  all  construction  is  to  discover 

8  Rayor  v.  Rayor,  142  111.  375,  31  8  Bell  v.  Gardner  &  Lacey  Lum- 
N.  E.  Rep.  678.  ber  Co.,  85  S.  C.  182,  67  S.  E.  151. 

9  Post  V.  Weil,  115  N.  Y.  361,  5  *  Maxwell   v.    Harper,   51   Wash. 
L.R.A.  422,  12  Am.  St.  Rep.  809.  351,  98   Pac.  756;    Simonds   v.    Si- 

1  Jacobs   V.   All   Persons,   12   Cal.       monds,    199    Mass.    552,    19   L.R.A. 
App.   163,   106  Pac.  896.  (N.S.)   686,  85  N.  E.  860. 

2  Maxwell  v.  McCall,  124  N.  W.         ^  Dickson  v.  Van  Hoose,  47  So. 

760.  7ia 


CHAP.    XXV.]        PRINCIPLES  OF  CONSTRUCTION. 


1513 


such  intention.^  While  conditions  defeating  an  estate  are  not 
viewed  with  favor,  yet  when  such  condition  and  defeasance 
are  clear  and  explicit,  the  court  must  give  effect  to  the  inten- 
tion of  the  parties."^  But  if  the  law  has  given  to  the  words 
a  definite  meaning,  the  court  must  construe  the  deed  by  giv- 
ing to  such  words  their  legal  signification.^  In  giving  effect 
to  the  intention  of  the  parties  that  must  be  considered  certain, 
which  can  be  made  certain.^  The  unexpressed  intention  of 
the  parties  to  a  deed  cannot  change  its  effect,  where  its  temis 
are  clear  and  unambiguous.^  If  an  action  is  not  brought  for 
the  purpose  of  reforming  a  deed,  but  of  construing  a  reser- 
vation, evidence  as  to  what  w^as  the  intention  of  the  parties  to 
the  deed  is  not  material.^  The  true  signification  of  ambiguous 
words  may  be  determined  by  the  context.^  The  court  should 
put  itself  in  the  position  of  the  parties,*  and  should  endeavor 


OTriplett  v.  Williams,  149  N.  C. 
394,  24  L.R.A.(N.S.)  514,  63  S.  E. 
79.  The  whole  deed  must  be  con- 
sidered: Brown  v.  Reeder,  108  Md. 
653,  71  Atl.  717;  Clark  v.  Northern 
Coal  &  Coke  Co.,  112  S.  W.  629; 
Bernero  v.  McFarland  Real  Estate 
Co.,  134  Mo.  App.  290,  63  S.  E.  79. 

■^  Epperson  v.  Epperson,  108  Va. 
471,  62  S.  E.  344. 

8  Condor  v.  Secrest,  149  N.  C. 
201,  62  S.  E.  921.  When  the  intent 
of  the  parties  is  ascertained  from 
the  whole  instrument  in  the  light 
of  the  surrounding  circumstances 
it  will  be  carried  into  effect:  Tan- 
ner V.  Ellis,  (Ky.)  127  S.  W.  995; 
and  consideration  should  be  given 
to  the  entire  deed  as  well  as  to  the 
acts  of  the  parties:  Turner  v, 
Creech,  58  Wash.  439,  108  Pac. 
1084.  Unless  contrary  to  some 
principle  of  law,  the  intent  of  the 
parties  will  be  carried  into  effect: 


Irwin  V.  Stover  (W.  Va.)  67  S. 
E.  1119.  Technical  rules  of  con- 
struction cannot  be  applied  to  de- 
feat the  intention  of  the  parties  as 
it  appears  from  the  whole  deed: 
Kelly  V.  Parsons  (Ky.)  127  S.  W. 
792. 

9  Hubbard  v.  Whitehead,  221  Mo. 
672,  121  S.  W.  69.  The  intention 
will  prevail :  Pack  v.  Whitaker,  65 
S.  E.  496 ;  Blauvelt  v.  Pasaic  Water 
Co.,  72  Atl.  1091;  Empire  Bridge 
Co.  V.  Larkin  Soap  Co.,  117  N.  Y. 
Supp.  1134,  132  App.-Div.  943. 

1  City  of  Geneva  v.  Henson,  195 
N.  Y.  447,  88  N.  E.  1104. 

2Hutchins  v.  Berry,  (N.  H.)  75 
Atl.  650. 

3  Price  v.  Griffin,  150  N.  C.  523, 
29  L.R.A.(N.S.)  935,  64  S.  E.  372. 

4  Shinnecock  Hills  etc.  Co.  v. 
Aldrich,  116  N.  Y.  Supp.  532,  132 
App.  Div.  118. 


1514 


THE  LAW   OF  DEEDS. 


[chap.    XXV. 


to  carry  into  effect  the  intention  of  the  parties  where  it  is  not 
contrary  to  law  or  repugnant  to  the  terms  of  the  grant.® 

§  837.  Technical  terms. — "The  intent,  when  apparent 
and  not  repugnant  to  any  rule  of  law,  will  control  technical 
terms,  for  the  intent,  and  not  the  words,  is  the  essence  of  every 
agreement.  In  the  exposition  of  deeds,  the  construction  must 
be  upon  the  view  and  comparison  of  the  whole  instrument, 
and  with  an  endeavor  to  give  every  part  of  it  meaning  and 
effect."  ^  And  if  a  deed  cannot  take  effect  in  the  precise 
way  intended,  yet  if  it  can  operate  in  another  mode  it  will  be 
so  construed.'''    If  there  is  a  conflict  in  a  deed  between  what  is 


6  Cotting  V.  City  of  Boston,  201 
Mass.  97,  87  N.  E.  205.  The  pur- 
pose for  which  the  deed  was  given 
should  be  considered :  Friedman  v. 
Ender,  116  N.  Y.  Supp.  461. 

^  Chief  Justice  Kent,  in  Jack- 
son V.  Myers,  3  Johns.  388,  395,  3 
Am.  Dec.  504;  Prentice  v.  Duluth 
Storage  and  Forwarding  Co.,  58 
Fed.  Rep.  437. 

'Parker  v.  Nichols,  7  Pick.  Ill; 
Goodtitle  v.  Bailey,  Cowp.  600;  Bar- 
rett V.  French,  1  Conn.  354,  6  Am. 
Dec.  241 ;  Lynch  v.  Livingston,  8 
Barb.  463;  2  Seld.  422;  Jackson  v. 
Blodgett,  16  Johns.  172;  Doe  v. 
Salkeld,  Willes,  673 ;  Wallis  v.  Wal- 
lis,  4  Mass.  135,  3  Am.  Dec.  210; 
Haggerston  v.  Hanbury,  5  Barn.  & 
C.  101 ;  Smith  v.  Frederick,  1  Russ. 
174;  Bryan  v.  Bradley,  16  Conn. 
474;  Russell  v.  Coffin,  8  Pick.  143; 
Brewer  V.  Hardy,  22  Pick.  376;  33 
Am.  Dec.  747 ;  Roe  v.  Tanmar,  Wil- 
les, 682;  Walker  v.  Hall,  2  Lev. 
213;  Thompson  v.  Attfield,  1  Vern. 
40;  Thorne  v.  Thorne,  1  Vern.  141; 
Rogers  v.  Eagle  Fire  Ins.  Co.,  9 
Wend.  611;  Doe  d.  Lewis  v.  Davies, 


2  Mees.  &  W.  503;  Doe  d.  Starling 
V.  Prince,  20  L.  J.  N.  S.  C.  P.  223 ; 
Doe  d.  Daniell  v.  Woodroffe,  10 
Mees.  &  W.  608;  Coltman  v.  Sen- 
house,  2  Lev.  225 ;  Crossing  v.  Scud- 
amore,  2  Lev.  9;  1  Mod.  175;  Har- 
rison V.  Austin,  Carth...  38;  Doe  d. 
Were  v.  Cole,  7  Barn.  &  C.  243; 
Adams  v.  Steer,  Cro.  Jac.  210;  Rig- 
den  V.  Vallier,  2  Ves.  Sr.  253;  Hag- 
gerson  v.  Hanbury,  5  Barn.  &  C. 
101 ;  Nash  v.  Ash,  1  Hurl.  &  C.  160. 
See,  also,  Winborne  v.  Downing, 
105  N.  C.  20.;  Lemon  v.  Graham,  131 
Pa.  St.  447,  6  L.R.A..  663;  Starnes 
v.  Hill,  112  N.  C.  1,  22  L.R.A.  598; 
Moore  v.  City  of  Waco,  85  Tex. 
206;  Carson  v.  Fuhs,  131  Pa.  St. 
256;  Staffordville  Gravel  Co.  v. 
Newell,  53  N.  J.  L.  412,  19  Atl. 
Rep.  209;  Greer  v.  Pate,  85  Ga.  552; 
Behmyer  v.  Odell,  31  111.  App.  350 ; 
Huber  v.  Crosland,  140  Pa.  St.  575 ; 
21  Atl.  Rep.  404;  Campbell  v.  Mor- 
gan, 68  Hun,  490;  Field  v.  City  of 
Providence,  17  R.  I.  803;  Smith  v. 
Smith,  71  Mich.  633,  40  N.  W.  Rep. 
21;    Ratliffe  v.   Marrs,  87   Ky.  26; 


i 


CHAP.    XXV.]        PRINCIPLES  OF  CONSTRUCTION. 


1515 


written  and  what  is  printed,  the  written  part  prevails.'  Where 
in  a  printed  blank  form  of  a  warranty  deed  the  printed  words 
"forever,  a  certain  piece  and  parcel  of  land  lying  and  being" 
are  stricken  out,  and  the  words  "all  my  right,  title,  and  in- 
terest in  and  unto"  are  inserted  in  their  place,  followed  by  a 
description  of  the  land,  the  deed  containing  a  covenant,  "that 
until  the  ensealing  of  these  presents,  we  are  the  sole  owners 
of  the  premises,  and  that  they  are  free,"  etc.,  the  deed  is  a 
quitclaim  deed.®  If  the  deed  contains  a  clause  decisively  show- 
ing the  intention  of  the  parties,  ambiguities  and  inconsis- 
tencies in  other  clauses  of  the  deed  will  not  defeat  such  in- 
tention.^    As  said  by  Lord  Wensleydale:     "The  question  is 


8  S.  W.  Rep.  876;  White's  Trustee 
V.  White,  86  Ky.  602 ;  7  S.  W.  Rep. 
26;  Wonn  v.  Pittman,  82  Ga.  637; 
Brown  v.  Ferrell,  83  Ky.  417 ,  Grie- 
ber  V.  Lindenmeier,  42  Minn.  99 ; 
Anderson  v.  Logan,  105  N.  C.  266. 
8  Cummings  v.  Dearborn,  56  Vt. 
441.  This  is  the  rule  with  regard 
to  all  contracts:  McNear  v.  Mc- 
Comber,  18  Iowa,  17;  Hill  v.  Mil- 
ler, 76  N.  Y.  32;  Carrigan  v.  In- 
surance Co.,  53  Vt.  418,  38  Am. 
Rep.  687;  Clarke  v.  Woodruff,  83 
N.  Y.  518;  Weisser  v.  Maitland,  3 
Sand.  318;  Robertson  v.  French,  4 
East,  130.  But  both  the  written  and 
printed  parts  will  be  construed  to- 
gether and  operation  given  to  both 
if  possible:  Harper  v.  Albany  Mut. 
Ins.  Co.,  17  N.  Y.  194;  Alsagar  v. 
St.  Catharine's  Dock  Co.,  14  Mees. 
&  W.  794;  Goix  v.  Low,  1  Johns. 
Cas.  341;  Hunter  v.  General  Mut. 
Ins.  Co.  of  N.  Y.,  11  La.  Ann.  139; 
Wallace  v.  Insurance  Co.,  4  La. 
289;  Cushman  v.  Northwestern  Ins. 
Co.,  34  Me.  487 ;  Howland  v.  Comm. 
Ins.  Co.,  Anth.  46;  Goicoechla  v. 
Louisiana   State  Ins.  Co.,  6  Mart., 


N.  S.  (La.)  51;  17  Am.  Dec.  175; 
Loveless  v.  Thomas,  152  111.  479, 
38  N.  E.  907;  Miller  v.  Mowers, 
227  111.  392,  81  N.  E.  420. 

3  Cummings  v.  Dearborn,  56  Vt. 
441.  The  word  "premises"  may  re- 
fer to  the  interest  intended  to  be 
conveyed  as  well  as  to  the  land. 

iBent  V.  Rogers,  137  Mass.  192 
In  Coleman  v.  Beach,  97  N.  Y.  545 
553,  Mr.  Chief  Justice  Ruger,  in 
delivering  the  opinion  of  the  court, 
said :  "If  the  disposition  which  the 
owner  of  property  desires  to  make 
does  not  contravene  any  positive 
prohibition  of  law,  his  control  over 
it  is  unlimited,  and  the  only  office 
which  the  courts  are  called  upon  to 
perform,  in  construing  his  transfers 
of  title,  is  to  discover  and  give  ef- 
fect to  his  intentions.  In  the  case 
of  repugnant  dispositions  of  the 
same  property  contained  in  the  same 
instrument,  the  courts  are  of  neces- 
sity compelled  to  choose  between 
them;  but  it  is  only  when  they  are 
irreconcilably  repugnant  that  such 
a  disposition  of  the  question  is  re- 
quired to  be  made.    If  it  is  the  clear 


1516 


THE  LAW   OF   DEEDS. 


[chap.    XXV. 


not  what  the  parties  to  a  deed  may  have  intended  to  do  by 
entering  into  that  deed,  but  what  is  the  meaning  of  the  words 
used  in  that  deed;  a  most  important  distinction  in  all  classes 
of  construction,  and  the  disregard  of  which  often  leads  to 
erroneous  conchisions."  ^  The  express  language  of  a  deed, 
liowever,  cannot  be  subverted  by  a  mere  matter  of  convenience 
or  taste.^  Where  a  technical  word  is  used,  evidently  in  a  sense 
different  from  its  technical  signification,  the  court  will  give  to  it 
the  construction  which  the  grantor  intended.^  While  a  grantor 
has  the  right  to  assign  to  words  in  the  deed  a  meaning  differ- 
ent from  that  which  they  ordinarily  bear,^  still  the  construc- 
tion of  a  deed  is  the  province  of  the  court.®    All  conveyances 


intent  of  the  grantor  that  apparently 
inconsistent  provisions  shall  all 
stand,  such  limitations  upon,  and 
interpretations  of  the  literal  signi- 
fication of  the  language  used,  must 
be  imposed,  as  will  give  some  ef- 
fect if  possible  to  all  the  provisions 
of  the  deed." 

2  In  Monypenny  v.  Monypenny,  9 
Hoffm.  L.  Cas.  146.  See,  also.  Ex 
parte  Chick,  Re  Meredith,  11  Chip. 
D.  739;  Evans  v.  Vaughan,  4  Barn. 
&  C.  266;  Hilbers  v.  Parkinson,  25 
Chip.  D.  203;  Smith  v.  Packhurst, 
3  Atk.  126. 

spratt  V.  Woodworth,  32  Cal. 
219;  91  Am.  Dec.  573. 

4  Central  Pacific  R.  R.  Co.  v. 
Beal,  47  Cal.  151. 

5  Morrison  v.  Wilson,  30  Cal.  344. 
See  Wilcoxson  v.  Sprague,  51  Cal. 
640. 

6  Moody  v.  Palmer,  50  Cal.  32. 
See  Whitman  v.  Steiger,  46  Cal. 
256.  A  deed  is  not  a  mere  quit- 
claim deed  which  contains  the 
words,  "have  bargained,  sold,  and 
quitclaimed,  and  by  these  presents 
do    bargain,    sell,     and    quitclaim, 


.  .  .  all  our  right,  title,  and  in- 
terest, estate,  claim,  and  demand, 
both  at  law  and  in  equity,  and  as 
well  in  possession  as  in  expect- 
ancy": Wilson  V.  Irish,  62  Iowa, 
260.  Where  a  person  who  holds 
a  second  mortgage,  and  is  also  co- 
assignee  in  bankruptcy  of  the  estate 
of  the  mortgagor,  executes  a  quit- 
claim deed  of  the  property  to  a 
third  person,  the  latter  becomes  an 
assignee  of  the  second  mortgage, 
but  does  not  take  the  interest  of 
the  grantor  as  co-assignee  in  bank- 
ruptcy; the  assignees  in  bankruptcy 
still  retain  the  equity  of  redemp- 
tion :  Southwick  v.  Atlantic  Fire 
&  Mar.  Ins.  Co.,  133  Mass.  457. 
Where  the  deed  shows  an  intent 
to  transfer  any  future  interest 
which  the  grantor  might  acquire, 
the  deed  will  be  treated  in  equity 
as  an  executory  agreement  to  con- 
vey, and  the  grantor  will  be  com- 
pelled to  convey  the  interest  subse- 
quently acquired :  Hannon  v. 
Christopher,  34  N.  J.  Eq.  459. 
Where  a  person  conveys  to  a  town 
and   "their   successors   and   assigns 


CHAP.    XXV.]        PRINCIPLES  OF  CONSTRUCTION.  1517 

affecting  real  estate,  so  far  as  questions  of  their  validity,  force, 
effect,  and  construction  are  concerned,  must  depend  entirely 
on  the  law  of  the  place  where  the  property  is  situated.'  Words 
which  are  not  technical  must  be  construed  as  bearing  their 
ordinary  signification.^  "Rules  of  construction  are  adopted 
with  a  view  to  ascertain  the  intention  of  the  parties,  and  are 
founded  in  experience  and  reason,  and  not  arbitrarily  adopted. 
They  are  not  intended  to  make  terms  for  contracting  parties, 
but  simply  to  ascertain  what  the  language  means  which  they 
have  employed  in  their  contracts.  There  are  words  in  deeds, 
as  in  notes  and  other  instruments  which  have  a  technical  mean- 
ing, and  are  construed  accordingly;  but  language  in  deeds  or 
notes,  or  other  instruments,  not  technical,  must  be  taken  in 
its  ordinary  and  usual  sense.  There  is  no  reason  why  a  rule 
which  will  discover  the  meaning  of  language  not  technical, 
in  a  note  or  other  instrument,  may  not  be  resorted  to,  to  as- 
certain the  meaning  of  language  not  technical  in  a  deed."  ^ 

§  838.  Expression  of  grantor's  motive. — The  effect  of 
the  deed  must  depend  upon  the  effect  of  the  language  used.  A 
grantor  can  impose  conditions,  and  can  make  the  title  con- 
veyed dependent  upon  their  performance.  But  if  he  does  not 
make  any  condition,  but  simply  expresses  the  motive  which  in- 
duces him  to  execute  the  deed,  the  legal  effect  of  the  granting 

for  literary  purposes,"  with  the  the  law  of  place  in  the  construction 
agreement  that  the  town  should  of  covenants,  see  Bethell  v.  Beth- 
keep  the  property  in  repair  'for  ell,  54  Ind.  428,  23  Am.  Rep.  650. 
the  specific  purpose  of  maintaining  See,  also,  as  to  law  of  place.  Doe 
a  public  school,"  this  is  not  a  dedi-  d.  Moore  v.  Nelson,  3  McLean, 
cation  of  the  property  to  public  383;  Clarke  v.  Graham,  6  Wheat, 
uses :  McGehee  v.  Woodville,  59  577,  5  L.  ed.  334.  See  as  to  statu- 
Miss.  648.  tory  provisions :  Butterfield  v. 
'West  V.  Fitz,  109  111.  425;  Riley  Beall,  3  Ind.  203;  Root  v.  Brother- 
V.  Borroughs,  41  Neb.  296,  59  N.  son,  4  McLean,  230. 
W.  929;  In  re  Delehanty,  11  Ariz.  8  Bradshaw  v.  Bradbury,  64  Mo. 
366,  17  L.R.A.(N.S.)    173,  95   Pac.  334. 

109;    Lumber    Co.    v.    Sawyer,    135  ^  Bradshaw  v.   Bradbury,  64  Mo. 

Wis.   525,   116  N.  W.  255.     As  to  334,  336,  per  Henry,  J. 


1518  THE  LAW  OF  DEEDS.  [CHAP.    XXV. 

words  cannot  be  controlled  by  the  language  Indicating  the 
grantor's  motive.^  Thus,  where  a  deed  states  in  the  haben- 
dum clause  that  it  is  made  "for  the  sole  and  separate  use  and 
benefit  of  the  wife  and  her  children  forever,"  these  words  will 
not  give  any  estate  to  the  children;  they  perform  no  other 
office  than  to  indicate  the  grantor's  motive.  The  court  said 
that,  if  it  had  not  been  the  intention  of  the  parties  to  convey 
an  absolute  fee  to  the  grantee,  "the  land  would  doubtless  have 
been  conveyed  to  a  trustee,  to  manage  it,  and  to  apply  the 
profits  to  the  support  of  the  wife  and  children,  and  provision 
made  for  turning  over  their  interests  to  the  children  as  they 
should  respectively  attain  full  age.  The  consideration  flowed 
from  her  alone,  and  her  husband,  being  insolvent,  the  burden 
of  maintaining  the  family  was  cast  upon  her.  The  language  of 
the  Imbendum  of  the  deed  already  quoted  merely  indicates  the 
motive  for  the  conveyance  to  her,  which  was  to  provide  a  home 
and  the  means  of  support  for  herself  and  children,  free  from 
the  control  of  her  husband,  and  secure  from  the  claims  of  his 
creditors."  ^  If  the  grantor  recites  that  his  purpose  is  to  con- 
vey a  life  estate  with  the  remainder  in  fee  to  his  children,  but 
grants  the  property  to  the  grantee  and  his  heirs  in  fee  simple, 
the  grantee  will  take  such  estate,  as  the  granting  part  of  the 
deed  governs.^  If  a  grantor,  who,  as  a  devisee  under  a  will 
and  executrix,  has  the  right  to  convey,  subject  to  the  rights 
of  the  creditors  of  the  estate,  the  legal  title  to  the  land  de- 
vised to  her,  the  fact  that  she  describes  herself  as  administra- 
trix does  not  affect  the  deed  so  far  as  her  right  or  the  right  of 
heirs  to  avoid  it  is  concerned.*  If  the  grantor  describes  him- 
self as  the  "administrator  of  the  goods"  of  a  decedent,  and  de- 
clares that  the  "administrator  as  aforesaid"  conveys  the  prop- 
erty and  that  he,   "administrator,"  has  signed  and  executed 

1  Mauzy  v.  Maury,  79  Va.  537.  *  Turnbull    v.   Leavitt,    158   Mich. 

2  Mauzy  v.    Mauzy,   79   Va.   537,       545,  123  N.  W.  43. 
539,  and  cases  cited. 

3  Dunbar  v.  Aldrich,  79  Miss.  698, 
31    So.   341. 


CHAP.    XXV.]         PRINCIPLES  OF   CONSTRUCTION.  1519 

the  deed,  although  he  signs  his  individual  name  without  the 
addition  to  his  title  as  administrator,  his  intention  to  convey 
as  administrator  of  the  estate  is  sufficiently  manifest.^ 

§  838a.     Expressions    limiting    title    conveyed. — If    a 

grantor  conveys  all  his  right,  title,  and  interest,  and  adds  "be- 
ing a  one-half  undivided  interest,"  the  operation  of  the  deed 
to  convey  all  the  grantor's  interest,  is  not  limited  by  these 
words,  nor  will  they  be  construed  as  excej)ting  any  interest 
conveyed  by  the  prior  words  of  grant. ^  Subsequent  provisions 
will  not  be  deemed  to  have  the  effect  of  restricting  what  has 
been  previously  granted.'  The  effect  of  a  deed  conveying 
land  cannot  be  destroyed  by  a  clause  stating  that  it  is  intended 
to  convey  the  title  which  the  grantor  received  from  a  specified 
deed,  when,  by  the  latter,  no  title  whatever  was  conveyed.* 
The  question  is  not  always  one  of  intent,  but  of  enforcing  es- 
tablished and  well-defined  principles  of  law.  When  it  was 
sought  to  show,  by  the  language  of  the  deed  and  by  evidence 
offered  for  that  purpose,  that  the  grantor  received  no  title  by 
the  convej^ance  specified  in  his  deed,  and  hence  his  deed  passed 
no  title,  Mr.  Justice  Emery  said :  "In  support  of  this  conten- 
tion the  defendant  invokes  the  broad  proposition  that,  in  con- 
sidering written  instruments,  courts  should  always  seek  for 
the  actual  intent  of  the  parties,  and  give  effect  to  that  intent 
when  found,  whatever  the  form  of  the  instrument.  The  prop- 
osition has  been  stated  perhaps  as  broadly  as  this  in  text-books 
and  judicial  opinions,  but  it  is  not  universally  true.  It  is 
hedged  about  by  some  positive  rules  of  law,  which  the  parties 
must  heed  if  they  would  eft'ectuate  their  intent,  or  avoid  con- 
sequences they  did  not  intend.  Muniments  of  title,  especially, 
are  guarded  by  positive  rules  of  law,  to  secure  their  certainty, 

6  Sapp   V.   Cline,   131   Ga.  433,  62  55 ;    Pike   v.    ISIonroe,   36   Mc.   309, 

S.   E.   529.  58  Am.  Dec.  751. 

6  McLennan  v.  McDonnell,  78  Cal.  8  Maker  v.  Lazell,  S3  Me.  562,  23 

273.  Am.  St.  795. 

''Thornton    v.    Mehring,    117    111. 


2520  THE  LAW  OF  DEEDS.        [CHAP.  XXV. 

precision,  and  permanency.  If,  in  the  effort  to  ascertain  the 
real  intent  of  the  parties,  one  of  these  rules  is  encountered,  it 
must  control,  for  no  positive  rule  of  law  can  be  lawfully  vio- 
lated in  the  search  for  intent.  Some  of  these  rules  prevent 
an  intent  from  becoming  effectual,  however  clearly  expressed, 
because  the  language  required  by  the  rule  was  not  used.  .  .  . 
There  is  one  rule  pertaining  to  the  construction  of  deeds,  as 
ancient,  general,  and  rigorous  as  any  other.  It  is  the  rule 
that  a  grantor  cannot  destroy  his  own  grant,  however  much 
he  may  modify  it  or  load  it  with  conditions — the  rule  that 
having  once  granted  an  estate  in  his  deed,  no  subsequent 
clause,  even  in  the  same  deed,  can  operate  to  nullify  it.  We 
do  not  find  that  this  rule  has  ever  been  disregarded,  or  even 
seriously  questioned,  by  courts.  We  find  it  often  stated,  ap- 
proved, and  sometimes  made  a  rule  of  decision."  '  Thus, 
where  an  owner  of  land  "releases,  quitclaims,  and  conveys 
[to  the  grantee],  and  its  successors  and  assigns  forever,  all 
his  claim,  right,  title,  and  interest  of  every  name  and  nature, 
legal  or  equitable  in,  and  to"  the  land,  and  by  a  subsequent 
clause  declares  that  "the  interest  and  title  intended  to  be  con- 
veyed by  this  deed  is  only  that  acquired"  by  the  grantor  by 
virtue  of  a  specified  deed  which  had  been  previously  executed 
to  him,  and  which  it  is  assumed  conveys  to  him  only  an  un- 
divided half  interest  in  the  land,  the  two  clauses  are  incon- 
sistent. The  words  contained  in  the  granting  clause  must  pre- 
vail, and  the  whole  interest  of  the  grantor  will  pass  by  the 
deed.^  It  is  said  in  a  recent  case  that  the  granting  clause  in  a 
deed  "determines  the  interest  conveyed,  and  that,  unless  there 
be  repugnancy,  obscurity,  or  ambiguity  in  that  clause,  it  pre- 
vails over  introductory  statements  or  recitals  in  conflict  there- 
with, and  over  the  habendum,  too,  if  that  clause  is  contradic- 
tory of  or  repugnant  to  it."^ 

9  Maker  v.  Lazell,  83  Me  562,  23       Co.  v.  Hewett,  55  Wis.  96,  42  Am. 
Am.  St.  Rep.  795.  Rep.   701. 

1  Green  Bay  and  Mississippi  Canal  2  Dickson  v.  Van  Hoose,  151  Ala. 


I 


CHAP.    XXV.J        PRINCIPLES  OF  CONSTRUCTION. 


1521 


§  838b.  Subsequent  clauses  neither  enlarging  nor 
limiting  grant. — Where  a  description  concludes  with  a 
statement  "meaning  and  intending  to  convey  the  same  prem- 
ises conveyed  to  me,"  this  will  not  enlarge  the  grant,  but  is 
merely  an  aid  to  trace  the  title.'  If  the  description  in  a  deed 
is  clear  and  complete,  a  statement  that  it  is  the  same  land 
described  in  a  recorded  agreement  will  not,  by  reference  to  such 
agreement,  be  construed  as  showing  that  a  smaller  quantity 
of  land  was  conveyed  than  would  appear  from  the  face  of  the 
deed.*  In  case  a  fee  is  conveyed,  it  is  not  rendered  a  qualified 
fee,  because  the  deed  contains  a  declaration  of  the  use,  but  it 
is  to  be  construed  as  directory  to  the  administration  of  the 
trust.^  When  land  is  conveyed  to  the  bishop  of  the  Roman 
Catholic  Church,  for  the  benefit  of  the  church,  and  to  his  as- 
signs and  successors  forever,  a  fee  simple,  in  the  absence 
of  any  conditions  subsequent,  either  express  or  implied,  is 
vested  in  such  bishop  in  trust  for  the  church.^    If  the  granting 


459,  19  L.R.A.(N.S.)  719,  47  So. 
718,  citing  §  836a  of  the  text 
and  also  the  following:  Webb  v. 
Webb,  29  Ala.  588,  606;  McMillan 
V.  Craft,  135  Ala.  148,  33  South,  26; 
Gould  V.  Womack,  2  Ala.  83 ;  Ker- 
shaw V.  Boykin,  1  Brev.  301 ;  Hunt- 
ington V.  Havens,  5  Johns.  Ch.  23; 
Green  Bay  &  M.  Canal  Co.  v. 
Hewett,  55  Wis.  96,  42  Am.  St. 
Rep.  701,  12  N.  W.  382;  13  Cyc. 
Law  &  Proc.  pp.  619,  666,  9  Am.  & 
Eng.  Enc.  Law,  p.  139,  17  Am.  & 
Eng.  Enc.  Law,  p.  8;  Wilkins  v. 
Norman,  139  N.  C.  40,  111  Am.  St. 
Rep.  767,  51  S.  E.  797;  Berridge 
V.  Glassey,  112  Pa.  442,  56  Am. 
Rep.  322,  3  Atl.  583;  Whetstone  v. 
Hunt,  78  Ark.  230,  93  S.  W.  979, 
8  A.  &  E.  Ann.  Cas.  443 ;  3  Washb. 
Real  Prop.  6th  ed.  §  2360. 

8  Brown  v.  Heard,  85  Me.  294. 

*  Jones  V.  Webster  Woolen  Co., 
Deeds,  Vol.  II.— 96 


85  Me.  210.  That  the  tendency  is 
to  uphold  the  deed,  see  §  855,  post. 

5  Board  of  Commissioners  of  Ma- 
honing County  V.  Young,  59  Fed, 
Rep.  96,  8  C.  C.  A.  27. 

eCabert  v.  Olcott,  86  Tex.  121. 
See,  also,  Pritchard  v.  Bailey,  113 
N.  C.  521 ;  Branson  v.  Studebaker. 
Ind.  548;  Branson  v.  Studebaker, 
133  Ind.  147;  Bodwell  Granite  Co. 
V.  Lane,  83  Me.  168;  21  Atl.  Rep. 
829.  A  statement  in  a  deed  that  it 
is  made  for  a  special  and  particular 
purpose  will  not  create,  by  implica- 
tion, a  condition  subsequent,  as 
where  a  deed  to  a  city  states  in  the 
habendum  that  the  land  conveyed 
is  to  be  held  forever  as  and  for  a 
street,  to  be  kept  as  a  public  high- 
way. If  the  city  fails  to  use  the 
land  conveyed  as  a  street,  it  does 
not  revert  to  the  grantor :  Kil- 
patrick  v.   Mayor  of  Baltimore,  81 


1522  THE  LAW  OF  DEEDS.        [CHAP.  XXV. 

clause  in  a  deed  is  sufficient  to  convey  all  of  the  interest  of  the 
grantor,  and  the  deed  also  contains  a  clause  stating  that  it  is 
expressly  agreed  that  the  interest  conveyed  by  the  deed  by 
the  grantor  "is  that  only  which  he  acquired  by  a  conveyance" 
from  another  person,  and  the  grantor  has  not  acquired  any 
interest  from  the  latter,  but  owns  an  interest  acquired  from  a 
different  source,  the  interest  of  the  grantor  is  conveyed  by 
the  deed.' 

§  838c.  Further  consideration — Execution  sales. — So, 
in  the  case  of  a  deed  made  pursuant  to  a  sale  on  execution, 
where  the  deed  conveys  all  the  right,  title,  and  interest  of  the 
judgment  debtor  in  and  to  certani  property  specifically  de- 
scribed, and  contains  the  phrase,  "being  a  leasehold  unexpired, 
originally  granted"  in  a  manner  described,  the  fee  will  pass 
to  the  purchaser  when  the  execution  debtor  is,  in  fact,  at  the 
time  of  the  sale,  the  owner  of  the  property.  The  recital  as  to 
the  leasehold  interest  will  not  have  the  effect  of  limiting  the 
estate  conveyed  by  the  preceding  general  terms  of  descrip- 
tion.' Likewise,  if  the  language  in  the  deed  shows  that  an  un- 
divided moiety  is  conveyed,  and  it  is  subsequently  claimed,  that 
by  virtue  of  an  added  clause  in  the  deed  the  grantor  really 
intended  to  convey  an  undivided  one-quarter  interest  only, 
the  court,  if  such  be  the  meaning  of  the  clause,  will  reject  it 
for  repugnance.'  If  a  grantor  conveys  land  by  a  definite 
description,  and  then  adds,  "intending  hereby  to  convey  the 
same  lands,  and  no  other,  which  passed  to  me  by  virtue  of"  a 
mortgage  which  he  designates,  and  if  the  description  covers 
other  land  than  that  included  in  the  mortgage,  the  title  to  the 

Md.    179,   n   L.R.A.   643,   48   Am.  Flaten    v.    City   of    Moorehead.   51 

St.  Rep.  509.     See,  where  the  pur-  Minn.   518,    19   L.R.A.    195,   53    N. 

pose  expressed  is  for  a  street,  Sou-  W.  Rep.  807. 

kup    V.    Topeka,    54    Minn.    66,    SO  '  Wilcoxson   v.    Sprague,   51    Cal. 

N.  W.  Rep.  824;  Greene  v.  O'Con-  640. 

nor,  18  R.  I.  56,  19  L.R.A.  262,  25  8  Dodge  v.   Walley,  22   Cal.  226, 

Atl.    Rep.    692.      As    to    park,    see  9  Cutler  v.  Tufts,  3   Pick.  272. 


CHAP,    XXV.]        PRINCIPLES  OF  CONSTRUCTION.  1523 

additional  land  will  be  conveyed  by  the  deed.*  The  whole  ob- 
ject is  to  construe  the  deed  so  as  to  give  effect  to  it,  if  possible, 
as  a  conveyance,  and  clauses  which  are  repugnant  to  the  gen- 
eral intention  of  the  deed  must  be  declared  void.^  Hence,  a 
grant  made  in  the  premises  of  a  deed  cannot  be  contradicted 
or  retracted  in  a  subsequent  part  of  the  deed.' 

§  839.  Surrounding  circumstances.  —  The  circum- 
stances connected  with  the  transaction  and  the  situation  of  the 
parties  may  be  considered  in  arriving  at  the  intent  of  the  par- 
ties.* On  a  portion  of  public  land  occupied  by  two  parties,  a 
dam  and  mill  had  been  erected.  One  of  these  conveyed  to  the 
other  six  acres  of  the  land,  describing  the  part  conveyed  by 
metes  and  bounds,  with  the  hereditaments  and  appurtenances 
thereunto  belonging.  It  was  agreed  between  the  parties  that 
the  purchaser  from  the  government  of  this  land  should  con- 
vey his  recognized  portion  of  it  to  the  other.  By  reason  of 
the  structure  of  the  dam,  the  water  had  flowed  over  the  land 
of  both  parties,  and  the  court  held  that  the  right  to  flow  the 
land  was  an  appurtenance,  and  was  so  understood  at  the  time 
of  the  execution  of  the  deed.^  Where  land  adjoins  tide- 
waters and  is  conveyed  "with  the  flats  adjoining  the  land  and 
appertaining  thereto,  meaning  to  convey  only  the  flats  of  right 


1  Wilder  v.  Davenport,  58  Vt 
642. 

2Wilcoxson  V.  Sprague,  51  Cal 
640. 

3  Winter  v.  Gorsuch,  51  Md.  180 
Eudd  V.  Brooke,  3  Gill.  198,  43  Am 
Dec.  321. 

*Truett  V.   Adams,  66  Cal.  218 


23  N.  J.  L.  (3  Zab.)  126;  Adams 
V.  Frothingham,  3  Mass.  352,  3  Am. 
Dec.  151 ;  Bradford  v.  Cressey,  45 
Me.  9;  Hamm  v.  San  Francisco, 
17  Fed.  Rep.  119;  Winnipiseogee 
etc.  Co.  V.  Parley,  46  N.  H.  83; 
French  v.  Carhart,  1  N.  Y.  (1 
Const.)   96;   Saunders  v.  Clark,  29 


Treat   v.    Strickland,   23    Me.   234;  Cal.  299;   Wade  v.  Deray,  50  Cal 

Pico  V.  Coleman,  47  Cal.  65 ;  Mor-  Zld ;  Kinney  v.  Hooker,  65  Vt.  Zll, 

ris  Canal  etc.  Co.  v.  Matthiesen,  17  36  Am.   St.   Rep.   864.     See   Piper 

N.  J.  Eq.   (2  Green)  385;  Mulford  v.    True,   36   Cal.   606;    Sprague  v. 

V.  Le  Franc,  26  Cal.  88 ;  Abbott  v.  Edwards,  48  Cal.  239 ;  Kingsland  v. 

Abbott,    53  'mc.    356;    Hadden    v.  New  York,  45  Hun,  198. 
Shoutz,  15  111.  581 ;  Dunn  V.  English.  6  Hadden  v.   Shoutz,   15   111.  581. 


1524 


THE  LAW   OF  DEEDS. 


[chap.    XXV. 


belonging  to  said  parcel  of  land,"  the  grantee  will  take  only 
such  flats  as  the  court  may  determine  to  belong  to  the  par- 
cel of  land  conveyed,  unless  it  is  shown  by  sufficient  evidence 
that  the  language  was  used  by  the  parties  in  a  different  sense. 
If  such  is  the  case,  the  language  must  receive  that  construction 
which  will  carry  out  the  intention  of  the  parties.^  Whether 
an  instrument  is  or  is  not  a  deed,  is  a  question  of  law  to  be  de- 
cided by  the  court,  and  it  cannot  be  shown  to  be  a  deed  by 
evidence  dehors  the  instrument.'  Courts  will  not  look  at  the 
extrinsic  circumstances  attending  the  execution  of  a  deed, 
where  its  language  is  clear,  unambiguous  and  not  requiring 
construction '  but  in  case  of  doubt,  the  court  may  consider 
not  only  the  language,  but  also  the  circumstances  surrounding 
the  transaction  and  the  situation  of  the  parties.'  In  the  case 
of  a  gift,  the  relationship  of  the  parties  and  the  object  of  the 
donor  may  be  considered.*  After  the  execution  of  a  deed,  the 
intent  of  the  grantor  although  he  may  remain  in  possession 
cannot  be  shown  by  subsequent  deeds  and  mortgages  made 
by  the  grantor.^     If  there  is  no  ambiguity  in  the  deed,  it  is 


8  Treat  v.  Strickland,  23  Me.  234. 

'Corlies  v.  Van  Note,  16  N.  J. 
L.  (1  Har.)  324. 

8  New  York  Life  Insurance  & 
Trust  Co.  V.  Hoyt,  161  N.  Y.  1,  55 
N.  E.  299,  affirming  52  N.  Y.  Supp. 
813,  31  App.  Div.  84. 

^  Negaunee  Iron  Co.  v.  Iron  Cliffs 
Co.,  134  Mich.  264,  96  N.  W.  488; 
Fullager  v.  Stockdale,  138  Mich.  363, 
101  N.  W.  576;  Newaygo  Co.  v. 
Chicago  &  W.  INl.  Ry.  Co.,  64  INIich. 
114,  30  N.  W.  910;  Smith  v.  Smith, 
71  Mich.  633,  40  N.  W.  21 ;  Elgin 
City  Banking  Co.  v.  Center,  83  III. 
App.  105 ;  Center  v.  Elgin  Banking 
Co.,  185  111.  534,  57  N.  E.  439 ;  Whit- 
taker  V.  Whittaker,  99  Mass.  367; 
Inhabitants  of  Cambridge  v.  In- 
habitants   of   Lexington,   34   Mass. 


(17  Pick.)  22;  Shartenberg  v.  El- 
lery,  27  R.  I.  414,  62  Atl.  979 ;  Hart 
V.  Saaders,  74  Neb.  818,  105  N. 
W.  709 ;  Mallory  v.  Mallory,  86  III. 
App.  193 ;  Long  v.  Timms,  107  Mo. 
512,  17  S.  W.  898;  Casto  v.  Baker, 
59  W.  Va.  683,  53  S.  E.  600;  Daum 
V.  Conley,  27  Colo.  56,  59  Pac.  753 ; 
Farnsworth  v.  Noffsinger,  46  W. 
Va.  410,  33  S.  E.  246;  Sengf elder 
V.  Hill,  21  Wash.  371,  58  Pac.  250; 
Hart  V.  Saunders,  74  Neb.  818,  105 
N.   W.  709. 

1  Vawter  v.  Newman,  74  Kan.  290, 
86  Pac.  135. 

2  Ranken  v.  Donovan,  166  N.  Y. 
626,  60  N.  E.  1119.  The  court 
should  view  the  language  used  in 
the  light  of  the  surrounding  cir- 
cumstances.    Lancaster  etc.   Co.  v. 


CHAP.    XXV.]        PRINCIPLES  OF  CONSTRUCTION.  1525 

not  proper  to  inquire  into  the  surrounding  circumstances '  as 
such  evidence  is  admitted  only  in  case  of  doubt  to  aid  the 
court  in  construing  the  language  and  ascertaining  the  intent 
of  the  grantor.*  If  the  grantor  uses  the  words  "exception" 
and  "reservation"  together,  showing  that  he  does  not  know 
their  technical  signification,  the  intention  of  the  parties  will 
be  gathered  from  the  deed,  interpreted  by  the  light  afforded 
by  surrounding  circumstances.^ 

§  840.  This  is  but  one  rule.^ — The  rule  mentioned  in 
the  preceding  section  is  but  one  of  the  numerous  rules  of 
construction,  the  object  of  all  of  which  is  to  ascertain  the  in- 
tent of  the  parties.  Generally,  in  the  construction  of  every 
doubtful  or  ambiguous  deed,  the  intent  cannot  be  obtained 
by  the  application  of  one  rule  alone.  All  should  be  considered, 
and  to  each  should  be  given  its  proper  weight.  As  illustrating 
the  manner  to  be  adopted  in  arriving  at  the  intent  of  the  par- 
ties, the  language  of  Mr.  Chief  Justice  Shaw,  of  Massachu- 
setts, is  peculiarly  pertinent:  "The  same  individual,  owning 
two  tenements  adjoining,  may  carve  out  and  sell  any  portion 
that  he  pleases,  and  the  terms  of  the  grant,  as  they  can  be 
learned,  either  by  words  clearly  expressed,  or  by  just  and 
sound  construction,  will  regulate  and  measure  the  rights  of 
the  grantee.    In  construing  the  words  of  such  a  grant,  where 

Jones,  75  N.  H.   172,  71  Atl.  871 ;  sidered :  White  v.  Bailey,  65  W.  Va. 

Ray    V.    Grube,    115    N.    Y.    Supp.  573,  64  S.  E.  1019.     Where  a  deed 

IZl,    131    App.    Div.    294.  is  ambiguous  in  its  terms,  parol  evi- 

3  Highland  Realty  Co.  v.  Groves,  dence  as  to  the  surrounding  cir- 
130  Ky.  374,  113  S.  W.  420.  cumstances    may    be    received    and 

4  Maxwell  v.  Harper,  51  Wash.  considered  for  the  purpose  of  ascer- 
351,  98  Pac.  756.  See,  also,  Ber-  taining  the  intention  of  the  parties: 
nero  v.  McFarland  Real  Estate  Co.,  Maxwell  v.  McCall,  Iowa,  124  N. 
134  Mo.  App.  290;  Towns  V.  Brown,  W.  760. 

114  S.  W.  nZ.  6  This  section  is  cited  as  authority 

5  City  Club  of  Auburn  v.  Mc-  in  Hickey  v.  Lake  Shore  etc.  Ry. 
Geer,  198  N.  Y.  609,  92  N.  E.  105.  Co.,  51  Ohio  St.  40,  23  L.R.A.  396, 
Extrinsic  circumstances  may  be  con-  46  Am.   St.  Rep.  545. 


1526  THE  LAW   OF  DEEDS.  [CHAP.    XXV. 

the  words  are  doubtful  or  ambiguous,  several  rules  are  ap- 
plicable, all,  however,  designed  to  aid  in  ascertaining  what  was 
the  intent  of  the  parties,  such  intent,  when  ascertained,  being 
the  governing  principle  of  construction.  And  first,  as  the 
language  of  the  deed  is  the  language  of  the  grantor,  the  rule 
is,  that  all  doubtful  words  shall  be  construed  most  strongly 
against  the  grantor,  and  most  favorably  and  beneficially  for 
the  grantee.  Again,  every  provision,  clause,  and  word  in  the 
same  instrument  shall  be  taken  into  consideration  in  ascertain- 
ing the  meaning  of  the  parties,  whether  words  of  grant,  of 
covenant,  or  description,  or  words  of  qualification,  restraint, 
exception,  or  explanation.  Again,  every  word  shall  be  pre- 
sumed to  have  been  used  for  some  purpose,  and  shall  be 
deemed  to  have  some  force  and  effect,  if  it  can  have.  And 
further,  although  parol  evidence  is  not  admissible  to  prove  that 
the  parties  intended  something  dift"erent  from  that  which  the 
written  language  expresses,  or  which  may  be  the  legal  infer- 
ence and  conclusion  to  be  drawn  from  it,  yet  it  is  always  com- 
petent to  give  in  evidence  existing  circumstances,  such  as  the 
actual  condition  and  situation  of  the  land,  buildings,  passages, 
watercourses,  and  other  local  objects,  in  order  to  give  a  defi- 
nite meaning  to  language  used  in  the  deed,  and  to  show  the 
sense  in  which  particular  words  were  probably  used  by  the 
parties,  especially  in  matters  of  description."  '^  Where  the 
meaning  is  doubtful,  evidence  as  to  the  acts  of  the  parties 
may  be  admitted  to  show  the  intent.*  But  where  the  terms 
of  the  deed  are  plain  and  intelligible,  and  the  instrument  can 
operate,  evidence  as  to  the  acts  of  the  parties  claiming  under  it 
is  not  admissible.®  The  intent,  when  clearly  expressed,  cannot 
be  altered  by  evidence  of  extraneous  circumstances.^ 

■^In    Salesbury    v.    Andrews,    19  152;   Hutchings   v.   Dixon,    11    Md. 

Pick.  250,  252.  29. 

8  Winnipiseogee  etc.   Co.   v.    Per-  ^  Means  v.    Presbyterian   Church, 
ley,  46  N.  H.  83.  3  Watts  &  S.  303. ' 

9  Dunn  V.  Bank  of  Mobile,  2  Ala. 


Chap,  xxv.]      principles  of  construction.  1527 

§  841.  Appearance  at  time  of  sale. — If,  by  an  artificial 
arrangement,  an  owner  of  land  has  created  an  advantage  for 
one  part  of  the  land  to  the  detriment  of  the  other,  the  holders 
of  the  two  parts  upon  a  severance  of  the  ownership,  take  them 
as  they  openly  and  visibly  appeared  at  time  of  the  deed.  As 
said  by  Selden,  J. :  "The  rule  of  the  common  law  on  this 
subject  is  well  settled.  The  principle  is,  that  where  the  owner 
of  two  tenements  sells  one  of  them,  or  the  owner  of  an  en- 
tire estate  sells  a  portion,  the  purchaser  takes  the  tenement 
or  portion  sold,  with  all  the  benefits  and  burdens  which  ap- 
pear at  the  time  of  the  sale  to  belong  to  it,  as  between  it  and 
the  property  which  the  vendor  retains.  This  is  one  of  the 
recognized  modes  by  which  an  easement  or  servitude  is  cre- 
ated. No  easement  exists  so  long  as  there  is  a  unity  of  own- 
ership, because  the  owner  of  the  whole  may  at  any  time,  re- 
arrange the  qualities  of  the  several  parts.  But  the  moment  a 
severance  occurs  by  the  sale  of  a  part,  the  right  of  the  owner 
to  redistribute  the  properties  of  the  respective  portions  ceases ; 
and  easements  or  servitudes  are  created,  corresponding  to  the 
benefits  and  burdens  mutually  existing  at  the  time  of  the  sale. 
This  is  not  a  rule  for  the  benefit  of  purchasers  only,  but  is  en- 
tirely reciprocal.  Hence,  if  instead  of  a  benefit  conferred,  a 
burden  has  been  imposed  upon  the  portion  sold,  the  purchaser, 
provided  the  marks  of  this  burden  are  open  and  visible,  takes 
the  property  with  the  servitude  upon  it.  The  parties  are  pre- 
sumed to  contract  in  reference  to  the  condition  of  the  prop- 
erty at  the  time  of  the  sale,  and  neither  has  a  right  by  alter- 
ing arrangements  then  openly  existing,  to  change  materially 
the  relative  value  of  the  respective  parts."  ^  A  person  leased 
a  tract  of  land  to  A,  reserving  the  streams  of  water  and  the 
soil  under  them,  with  the  privilege  of  erecting  upon  any  part 
of  the  premises  mills  and  dams,  and  reserving  also  the  land 
which  might  be  overflowed  in  consequence  of  such  dams.  A 
sold  a  part  or  the  premises  to  B  with  like  exceptions,  and  the 

«Lampman   v.    Milks,   21    N.   Y.      505,  507. 


1528 


THE  LAW  OF  DEEDS. 


[chap.    XXV. 


latter  erected  a  dam  on  his  land,  by  which  the  land  of  A  was 
overflowed.  The  court  held  that  until  the  original  owner  ex- 
ercised his  rights  and  erected  dams,  the  reservation  was  in- 
operative, and  if  considered  strictly  as  an  exception,  was  void 
for  uncertainty.^  Where  a  tract  of  land  is  conveyed,  described 
by  metes  and  bounds,  with  a  mill  upon  it,  and  there  was  at 
the  time  of  the  conveyance  a  raceway  to  conduct  the  water 
from  the  mill  running  along  the  side  of  a  stream  beyond  the 
limits  of  the  land  conveyed  into  other  land  owned  by  the 
grantor,  and  finally  discharging  into  the  stream,  and  this 
raceway  had  been  used  for  many  years  in  connection  with  the 
mill,  and  was  required  for  the  convenient  use  of  the  mill,  the 
right  to  the  uninterrupted  flow  of  the  water  through  the  whole 
extent  of  the  raceway  passed  by  the  conveyance,  as  appurte- 
nant to  the  mill*    If  a  deed  grants  a  right  of  way  over  other 


3  Thompson  v.  Gregory,  4  Johns. 
81,  4  Am.  Dec.  255. 

*  New  Ipswich  Factory  v.  Batch- 
elder,  3  N.  H.  190,  14  Am.  Dec. 
346.  The  court  quoted  this  lan- 
guage from  Nicholas  v.  Chamber- 
lain, Cro.  James,  121 :  "It  was  held 
by  all  the  court,  upon  demurrer, 
that  if  one  erect  a  house  and  builds 
a  conduit  thereto  in  another  part  of 
his  land,  and  conveys  water  by 
pipes  to  the  house,  and  afterward 
sells  the  house  with  the  appurten- 
ances, excepting  the  land,  or  sells 
the  land  to  another,  reserving  to 
himself  the  house,  the  conduit  and 
the  pipes  pass  with  the  house ;  be- 
cause they  are  necessary  and  quasi 
appendant  thereto.  And  he  shall 
have  liberty  by  law  to  dig  in  the 
land  for  amending  the  pipes,  or 
making  tfiem  new,  as  the  case  may 
require.  So  it  is,  if  a  lessee  for 
years  of  a  house  and  land  erect  a 
conduit  upon  the  land,  and  after  the 


term  determines,  the  lessor  occu- 
pies them  together  for  a  time,  and 
afterward  sells  the  house  with  the 
appurtenances  to  one,  and  the  land 
to  another,  the  vendee  shall  have 
the  conduit  and  pipes,  and  liberty 
to  amend  them."  The  court  then 
declares  that  the  rule  thus  laid 
down  "seems  to  us  to  be  founded 
on  sound  reason  and  good  sense, 
and  to  apply  in  all  its  force  to  the 
case  now  before  us.  A  raceway 
may  be  as  necessary  an  appurten- 
ance to  a  mill  to  conduct  the  water 
from  it,  as  a  canal  to  conduct  to  it 
the  water  necessary  to  work  it.  In 
many  cases  a  severance  of  the  ap- 
purtenance from  the  thing  to  which 
it  is  appurtenant,  would  render  both 
useless.  For  aught  we  know,  that 
may  be  the  case  in  this  instance. 
But  however  that  may  be,  the  case 
finds  that  the  raceway  was  neces- 
sary for  the  convenient  working  of 
the  mills.     Shepherd  in  his  Touch- 


CHAP.    XXV.]        PRINCIPLES  OF  CONSTRUCTION.  1529 

lands  of  the  grantor,  and  subsequently,  by  parol  agreement, 
the  parties  locate  the  precise  position  of  the  way,  the  right  of 
way  which  will  pass  to  a  subpurchaser  is  limited  and  defined 
by  such  agreement.^ 

§  842.  Illustrations. — Another  illustration  of  the  prin- 
ciple that  where  the  owner  of  two  tenements  sells  one  of  them, 
the  grantee  takes  the  premises  with  the  benefits  and  burdens 
which  appear  at  the  time  of  the  conveyance  to  belong  to  it, 
is  a  case  where  the  owner  of  a  spring  lot  and  of  a  paper  mill 
on  another  tract  had  conveyed  the  water  to  the  mill  by  an 
artificial  arrangement.  He  sold  the  spring  lot,  and  the  court 
held  that  the  grantee  took  it  subject  to  the  burden.®  If  a 
boundary  line  is  described  as  running  up  the  river  to  certain 
falls,  "thence  continuing  to  run  in  such  a  direction  as  to  in- 
clude a  millyard  and  the  whole  of  a  millpond,  which  may  be 
raised  by  a  dam  on  said  falls  to  a  certain  road,"  the  descrip- 
tion determines  the  boundary  of  the  land  itself,  and  not  the 
height  to  which  it  is  permissible  to  raise  the  pond.'  It  was 
said  by  Judge  Story:  "It  has  been  very  correctly  stated  at 
the  bar,  that  in  the  construction  of  grants  the  court  ought  to 
take  into  consideration  the  circumstances  attendant  upon  the 
transaction,  the  particular  situation  of  the  parties,  the  state 
of  the  country,  and  the  state  of  the  thing  granted,  for  the 
purpose  of  ascertaining  the  intention  of  the  parties.  In  truth, 
every  grant  of  a  thing  naturally  and  necessarily  imports  a 
grant  of  it  as  it  actually  exists,  unless  the  contrary  is  provided 
for."  ®  But  actual  knowledge  on  the  part  of  the  contracting 
parties  will  repel  the  presumption  of  law,  that  in  the  case  of 

stone,  89,   says:     'By  the  grant  of  5  i<;inney  v.   Hooker,  65   Vt.  333, 

mills  the  waters,  floodgates,  and  the  36  Am.  St.  Rep.  864. 

like,  that  are  of   necessary  use  to  ^  Seymour  v.  Lewis,  13  N.  J.  Eq. 

the  mills,  do  pass,'  and  we  enter-  439,  78  Am.  Dec.  108. 

tain  no  doubt  that  the  raceway  in  '  Hull  v.  Fuller,  4  Vt.  199. 

this  case  passed  by  Barrett's  deed,  ^In    United    States    v.    Appleton, 

as  an  appurtenance  to  the  mill."  1  Sum.  492,  501. 


1530  THE  LAW   OF  DEEDS.  [CHAP.    XXV. 

the  sale  of  land  the  parties  contract  with  reference  to  the  phy- 
sical condition  of  the  property  at  the  time.^  The  result  of  the 
decisions  on  this  question  is  thus  summed  upon  by  Mr.  Jus- 
tice Folger:  "1st.  That  when  an  owner  of  a  whole  tenement 
has  by  some  artificial  arrangement  of  the  material  properties 
of  his  estate,  added  to  the  advantages  and  enhanced  the  value 
of  one  portion  of  it,  he  cannot  after  selling  that  portion  with 
those  advantages  openly  and  visibly  attached,  voluntarily  break 
up  the  arrangement,  and  thus  destroy  or  materially  diminish 
the  value  of  the  portion  sold.  2d.  It  is  further  held,  that  the 
moment  the  severance  of  the  tenement  takes  place  by  a  sale 
of  a  part,  the  right  of  the  owner  to  redistribute  the  properties 
of  the  respective  portions  ceases,  and  easements  and  servitudes 
are  created,  corresponding  to  the  benefits  and  burdens  mu- 
tually existing  at  the  time  of  the  sale.  3d.  It  is  further  held, 
that  parties  are  presumed  to  contract  in  reference  to  the  con- 
dition of  the  property  at  the  time  of  the  sale,  and  that  neither 
has  a  right  by  altering  arrangements  then  openly  existing,  to 
change  materially  the  relative  value  of  the  respective  parts."  ^ 

§  843.  Grammatical  construction.7— "A  grammatical 
construction  is  not  always  to  be  followed,  and  it  has  been 
well  said  that  neither  false  English  nor  bad  Latin  will  make 
void  a  deed  when  the  meaning  of  the  party  is  apparent.  In 
construing  an  instrument,  that  construction  is  always  to  be 
adopted  which  will  accomplish  the  object  for  which  the  in- 
strument was  executed."  ^  A  father  executed  a  deed  to  his 
son,  reserving  a  maintenance  to  himself,  and  requiring  the  pay- 

9  Simmons  v.  Cloonan,  47  N.  Y.  v.  Fletcher,  1  Lev.  122,  2  Sid.  167 ; 

3.  Shury  v.  Piggot,  3  Bulst.  339;  Kil- 

1  In  Simmons  v.  Cloonan,  47  N.  gour  v.  Ashcom,  5  Har.  &  J.  82; 

Y.   3,  9.     And  see,  also,   Curtis  v.  Dunkles    v.    Milton    R.    R.    Co.,    4 

Ayrault,  47  N.  Y.  73;  Cox  v.  Mat-  Post.   (N.  H.)  489. 

thews,    1    Vent.    237 ;    Hazard    v.  2  Hancock  v.  Watson,  18  Cal.  137, 

Robinson,   3    Mason,   272;    Brakely  per    Cope,    J.,    and    see    Cotting   v. 

V.  Sharp,  2  Stockt.  Ch.  206;  Rob-  Boston,    201    Mass.    97,    87    N.    E 

bins  V.   Barnes,  Hob.   131;   Palmer  205. 


CHAP.    XXV.]        PRINCIPLES  OF  CONSTRUCTION.  1531 

meiit  of  his  debts.  The  deed  contained  a  condition  giving  the 
grantor  a  right  of  re-entry  in  case  the  grantee  neglected  to 
pay  such  debts,  and  suffered  the  grantor  to  be  put  to  cost, 
trouble,  or  expense  on  account  of  such  debts.  The  court  held, 
that  after  the  grantor's  death,  the  neglect  to  pay  a  debt  which 
he  owed,  although  not  presented  after  his  death,  worked  a 
forfeiture  of  the  estate,  and  that  the  grammatical  sense  of 
words  is  not  to  be  adhered  to  in  the  construction  of  either  a 
deed  or  a  will  where  a  contrary  intent  is  manifest;  and  that 
the  word  "and"  may  be  read  "or,"  when  by  so  doing  effect 
will  be  given  to  the  intent  of  the  parties.^  "It  is  not  the  prac- 
tice of  courts  of  justice  to  divest  persons  of  their  estates  by 
a  rigid  adherence  to  the  rules  of  gramatical  construction,  or 
by  a  strict  interpretation  of  the  language  of  an  instrument, 
when  the  sense  in  which  the  words  were  used  is  apparent  from 
other. portions  of  the  instrument  viewed  in  the  light  of  the  at- 
tending facts.  The  sole  object  to  be  obtained  in  the  construc- 
tion of  contracts  is  to  ascertain  the  real  intention  of  the  par- 
ties; and  with  this  view  the  whole  contract  and  all  its  pro- 
visions, together  with  the  relations  of  the  parties  toward  each 
other,  will  be  considered;  and  effect  will  be  given  to  the  in- 
tent thus  ascertained,  however  clumsily  the  instrument  may 
be  worded,  and  however  grossly  it  may  violate  the  strict  rules 
of  grammatical  construction."  * 

§  843a.     Repugnant  clauses. — If  a  deed  contains  two 
clauses  repugnant  to  each  other,  the  first  will  prevail.^     But, 

3  Jackson  v.  Topping,  1  Wend.  tit.  Parols  (A.  14);  Rex  v.  Inhabi- 
388,  19  Am.  Dec.  515.  tants  of  St.  Mary's,  1  Barn.  &  Aid. 

4  Sprague  v.  Edwards,  48  Cal.  239,  327;  Baring  v.  Christie,  5  East,  398; 
249,  per  Mr.  Justice  Crockett,  in  2  Parsons  on  Contracts  (6th  ed.), 
delivering  the  opinion  of  the  court.  513.  But  see  Gray  v.  Clark,  11  Vt. 
See,  also,  Racouillat  v.  Sansevain,  583 ;  Stamiland  v.  Hopkins,  9  Mees. 
32  Cal.  376,  387.  Relative  words  &  W.  178;  Carbonel  v.  Davies,  1 
in  the  construction  of  all  contracts  Strange,  394. 

are   generally    deemed    to    refer   to  ^  Pritchett    v.    Jackson,    103    Md. 

the    nearest    antecedent:      Bold    v.       696,  63  Atl.  965;  Blackwell  v.  Black- 
Molineux,  Dyer,   14  b:   Com.  Dig.       well.  124  N.  C.  269,  32  S.  E.  676. 


1532  THE  LAW   OF  DEEDS.  [CHAP,    XXV. 

if  possible,  the  repugnant  provisions  should  be  so  construed  as 
to  reach  the  true  intent  of  the  parties  and  to  accomplish  this 
purpose  the  deed  should  be  considered  as  a  whole.®  The 
granting  clause  will  control,  the  habendum  unless  the  laitter 
clearly  express  the  true  intent  of  the  parties.'  The  courts 
will  avoid  a  construction  which  will  create  a  repugnance  be- 
tween different  parts  of  a  deed."  If  there  is  a  repugnance 
between  the  language  of  the  grantor  and  words  incorporated 
in  the  deed  as  a  recital  from  some  other  instrument,  the  lan- 
guage of  the  grantor  will  prevail  over  the  recital.®  If  the 
deed  contains  a  provision  which  accords  with  a  rule  of  law, 
a  proviso  in  conflict  with  the  law,  which  would  defeat  the 
deed,  will  not  be  allowed  to  prevail  over  the  former.^  Re- 
liance cannot  be  placed  on  one  recital  as  establishing  a  fact 
where  another  recital  in  the  deed  explains  and  vitiates  the 
first,  as  the  deed  must  be  considered  as  a  whole.^  The  whole 
instrument  should  be  considered  and  that  construction  adopt- 
ed which  is  most  consistent  with  its  apparent  intent.^  A 
clause  in  a  deed  conveying  and  warranting  the  land  described 
without  any  definition  of  the  nature  and  character  of  the  es- 
tate granted,  is  not  repugnant  to  the  habendum  clause,  vest- 
ing a  life  estate  in  the  grantee.*  Technical  words  in  the 
granting  and  habendum  clauses  must  give  way  to  a  clause 

6  McDougal  V.  Musgrave,  46  W.  W.   566;    Powers   v.    Hibberd,    114 

Va.  509,  33  S.  E.  281.     See,  also,  Mich.  533,  72  N.  W.  339. 
Hitchler   v.    Boyles,    21   Tex.    Civ.  8  Chew   v.   Kellar,    171    Mo.   215, 

App.  230,  51  S.  W.  648.  71  S.  W.  172. 

'Owensboro  &  N.  R.  R.  Co.  v.  9  Scott  v.  Michael,  129  Ind.  250, 

Griffith.  92  Ky.  137,  17  S.  W.  277.  28  N.  E.  546. 

See,  also,  Chicago  Lumbering  Co.  v.  ^  Noyes    v.    Guy,   2   Ind.    205,   48 

Powell,    120    Mich.    51,   78    N.    W.  S.   W.    1056. 

1022;  Phillips  v.  Collinsville  Gran-  2  Perry  v.  Clift,  54  S.  W.  121. 
ite  Co.,  123  Ga.  830,  51  S.  E.  666;  3  Hitchler  v.  Boyles,  21  Tex.  Civ. 
Welch  V.  Welch,  183  111.  237,  55  App.  230,  51  S.  W.  648. 
N.  E.  694.  The  habendum  will  con-  4  Welch  v.  Welch,  183  111.  237, 
trol  if  it  is  manifest  that  such  55  N.  E.  694.  The  habendum  can- 
was  the  grantors  intention :  Wil-  not  be  used  to  cut  down  the  grant- 
son  V.  Terry,  130  Mich.  73,  89  N.  ing  clause:     Hads  v.  Tiernan,  213 


CHAP.    XXV.]        PRINCIPLES  OF  CONSTRUCTION.  1533 

limiting  the  interest  of  the  grantee  to  a  life  estate.^  But  if  a 
fee  is  conveyed  by  one  clause  to  the  wife,  and  a  Hfe  estate  by 
a  following  clause  to  her  husband,  the  latter  will  be  rejected 
on  account  of  repugnancy.®  Still  if  the  purpose  of  the  deed 
can  clearly  be  ascertained,  repugnant  words,  although  they 
appear  first  in  the  deed,  must  yield  to  that  purpose.'  If  a 
deed  contains  full  covenants  of  warranty  and  also  an  agree- 
ment that  the  grantees  will  not  sell  during  the  grantor's  life- 
time and  will  convey  during  such  period  at  his  request,  the 
repugnant  words  will  yield  to  the  deed  and  the  estate  con- 
veyed by  the  deed  will  not  be  defeated.'  And  it  may  be  stat- 
ed as  a  general  proposition  that  exceptions,  conditions  or 
reservations  inconsistent  with  the  interest  granted  by  the  deed 
and  which  have  a  tendency  to  depreciate  or  destroy  it,  are  of 
no  effect.^  The  rule  that  prevails  in  Missouri  is  that  the  in- 
tention as  gathered  from  the  whole  instrument  should  govern 
and  this  rule  supersedes  the  old  rule  of  construction  that  the 
granting  clause  should  prevail  over  the  habendum  in  case  of 
repugnancy.^     A  case  illustrating  the  rule  that  the  granting 

Pa.  44,  62  Atl.  172;  Lamb  v.  Meds-  it   only   when   the    repugnance   be- 

ker,   35    Ind.    App.   662,    74   N.    E.  tween  the  estate  granted  and  that 

1012,     unless     the     habendum,    as  limited   in   the   habendum   is   clear 

shown  by  the  whole  instrument  ex-  and      irreconcilable :       McDill      v. 

presses  true  intent  of  the  parties :  Meyer,  128  S.  W.  364. 

Owensboro  &  N.  R.  Co.  v.  Griffith,  8  Durand  v.  Higgins,  67  Kan.  110, 

92  Ky.  137,  17  S.  W.  277.  72  Pac  567. 

5  Atkins    V.   Baker,    112   Ky.   877,  ^  Riddle  v.  Town  of  Charlestown, 
66  S.  W.  1023.  42  W.  Va.  796,  28  S.  E.  831.     See, 

6  Blackwell   v.   Blackwell,    124   N.  also,  McCoy  v.  Pease,  17  Tex.  Civ. 
C.  269,  32  S.  E.  676.  App.  303,  42   S.  W.   659;    Gaskins 

'Goldsmith  v.  Goldsmith,  46  W.  v.    Hunton,   92   Va.    528,   23    S.    E. 

Va.    426,    33    S.    E.    281.      General  885;    Adams    v.    Fisher.    143    Mich, 

words  in  the  habendum  clause  will  673,  107  N.  W.  705;  McCullock  v. 

not  control  special  words  of  limi-  Holmes,    111    Mo.    445,    19    S.    W. 

tation  used  in  the  grant:     Hunter  1096;  Pritchett  v.  Jackson,  103  Md. 

V.    Patterson,    142   Mo.   310,   44   S.  696,  63   Atl.  695. 
W.    250.      As    the    object    of    the  i  Utter  v.    Sidman,   170  Mo.  284, 

habendum  is  to   define  the   extent  70  S.  W.  702. 
of  the  grant,  the  court  will  reject 


1534 


THE  LAW  OF  DEEDS. 


[chap.    XXV. 


clause  must  prevail  over  the  habendum  is  one  where  a  father 
and  mother  executed  a  deed  to  their  daughter,  granting  it  to 
her  for  her  own  use  free  from  all  marital  rights  of  her  pres- 
ent or  any  future  husband  while  the  habendum  clause  was  to 
her  and  her  assigns  forever  with  a  covenant  of  general  war- 
ranty and  providing  that  if  she  should  die  without  bodily  heirs, 
the  land  conveyed  should  revert  to  the  heirs  of  the  father  and 
mother.  This  limitation  was  considered  to  be  repugnant  to 
the  granting  clause  and  not  to  prevent  the  passing  of  the  fee.'* 
But  a  provision  in  a  deed  to  two  grantees  after  the  grant- 
ing clause,  that  upon  the  death  of  both  the  grantees,  "the  afore- 
said land  shall  inure  to  the  heirs"  of  one  of  the  grantees  is 
not  repugnant  to  the  other  parts  of  the  deed  and  is  valid.' 
If  a  reconciliation  between  the  repugnant  clauses  in  a  deed  is 
impossible,  the  clause  will  be  retained  which  gives  the  greatest 
estate  and  the  clause  in  conflict  with  this  will  be  rejected.*  If 
the  deed  conveys  in  its  granting  part  an  absolute  estate,  a  clause 
declaring  that  the  property  shall  revert  to  the  grantee's  heirs  up- 
on the  death  of  the  parties  is  void  as  it  is  impossible  to  limit  a 
remainder  on  a  fee.^  If  a  deed  conveys  property  to  the  grantees, 


2  Hughes  V.  Hammond,  136  Ky. 
694.  26  L.R.A.(N.S.)  808.  125  S. 
W.  144.  In  case  of  repugnancy 
the  rule  recognized  in  Alabama  is 
that  the  granting  clause  will  prevail 
over  the  habendum :  Dickson  v. 
Wildman,  175  Fed.  580. 

3  Parsons  v.  Kendall,  81  Kan.  192, 
105  Pac.  121.  As  to  conflict  be- 
tv^reen  habendum  and  other  clauses, 
see  Pack  v.  Whitaker,  65  S.  E. 
496;  Wallace  v.  Hodges,  160  Ala. 
276,  49  So.  312;  Hudson's  Heirs  v. 
Hudson's  Admr.,  121  S.  W.  973. 
The  former  of  two  inconsistent 
clauses  will  prevail :  Lewman  v. 
Owens,  132  Ga.  484,  64  S.  E.  544. 
See     as     to     repugnant     clauses : 


Loughridge  v.  Ball,  118  S.  W.  321; 
Adams  v.  Merrill,  87  N.  E.  36. 

*  Hopkins  v.  Hopkins,  114  S.  W. 
63. 

SGaylord  v.  Barnes,  113  N.  Y. 
Supp.  605,  128  App.  Div.  810. 
At  common  law  the  habendum 
could  not  devest  an  estate  already 
granted :  Triplett  v.  Williams,  149 
N.  C.  394,  24  L.R.A.(N.S.)  514, 
63  S.  E.  79;  Dickson  v.  Van 
Hoose,  157  Ala.  459,  19  L.R.A. 
(N.S.)  719,  47  So.  718.  But  in 
some  jurisdictions  the  rule  is  that 
the  intent  of  the  deed  must  be  ob- 
tained from  the  entire  deed  without 
regarding  the  formal  divisions: 
Triplett  v.  Williams,  149  N.  C.  394, 
24  L.R.A. (N.S.)   514,  63  S.  E.  79. 


CHAP.    XXV.]        PRINCIPLES  OF  CONSTRUCTION.  1535 

"their  heirs  and  assigns  forever"  and  the  habendum  reads  to  the 
grantees  ''their  hfetime  and  then  to  their  heirs  and  assigns 
forever,"  the  clause  granting  a  fee  simple  estate  will  prevail 
where  there  is  nothing  in  the  context  to  show  the  grantor's 
intention.''  An  owner  of  the  absolute  estate  in  a  tract  of  land 
executed  a  deed  in  w^iich  he  recited  that  he  was  possessed  of 
a  life  estate,  and  the  granting  clause  conveyed  all  the  interest 
of  the  grantor  in  the  property,  while  the  habendum  clause  re- 
cited that  the  grantee  was  to  hold  "all  and  singular  the  life 
estate  and  interest"  of  the  grantor.  The  court  held  that  what- 
ever interest  in  the  property  the  grantor  possessed,  passed  by 
the  deed.'  The  different  parts  of  the  deed  should  not  be  con- 
strued as  repugnant  to  one  another,  if  a  reconciliation  can  be 
effected  by  any  reasonable  interpretation  so  as  to  make  each 
effective.^ 

§  844.  Resort  to  punctuation. — While  little  regard  is 
is  to  be  paid  to  punctuation,  yet  it  may  be  looked  to  as  a  last 
resort.  "Punctuation,"  says  Mr.  Justice  Baldwin,  "is  a  most 
fallible  standard  by  which  to  interpret  a  writing.  It  may  be 
resorted  to  when  all  other  means  fail;  but  the  court  will  first 
take  the  instrument  by  its  four  corners  in  order  to  ascertain 
its  true  meaning;  if  that  is  apparent,  on  judicially  inspecting 
the  whole,  the  punctuation  will  not  be  suffered  to  change  it."  ' 
No  estate  should  be  dependent  upon  the  omission  of  a  comma 
or  semi-colon,  but  the  punctuation  should  be  disregarded.* 

^  Teague   v.    Sowder,    121    Tenn.  ^  Ewing   v.    Burnet,    11    Pet.   41. 

132,  114  S.  W.  484.  See,  also.  Doe  v.   Martin,  4  Term 

'Dickson  v.  Van  Hoose,  157  Ala.  Rep.  65,  3  Dane  Abr.  558:  Olivet 
459,  19  L.R.A.(N.S.)  719,  47  So.  v.  Wliitworth,  82  Md.  258,  33  Atl. 
718.  723. 

8  Burgess     v.     McCommas,     Tex.  1  Carolina     Real     Estate     Co.     v. 

(Civ.  App.)    129  S.  W    382.     Dif-      Bland,  152  N.  C.  225,  67  S.  E.  483. 
ferent  clauses  must  be  harmonized 
where  possible  so  as  to  give  effect 
to    the    deed :      McDill    v.    Meyer^ 
(Ark.)    128   S.   \V.  364. 


1536  THE  LAW   OF  DEEDS.  [CHAP.    XXV. 

§  844a.     Deed   should  be   construed   as  a   whole. — If 

possible,  some  effect  must  be  given  to  every  word  in  a  deed 
and  it  must  be  harmonized  with  the  other  language  of  the 
conveyance.'^  The  modern  rule  is  that  the  grantor's  inten- 
tion should  control.  In  construing  the  instrument,  it  is  to  be 
taken  as  a  whole,  and  the  plain  intent  of  the  grantor  will  pre- 
vail over  technical  words  of  legal  signification.^  The  word 
''accepted"  may  be  construed  as  "excepted."  *  Even  though 
the  words  employed  by  the  parties  will  destroy  the  grant,  still 
where  the  instrument  itself  clearly  expresses  their  will,  the 
courts  should  proceed  no  further  in  determining  its  mean- 
ing.' Where  there  is  no  mistake  or  oversight,  the  language 
of  the  deed  determines  the  meaning  of  the  parties  to  the  deed.^ 
A  fair  and  reasonable  meaning  should  be  given  to  the  words 
used  "^  and  separate  parts  are  to  be  considered  in  the  light  of 
other  parts  so  that  the  deed  may  be  construed  in  its  entirety.' 
Hence,  words  which  apparently  are  appropriate  to  a  condition 
only,  may  introduce  a  covenant,  condition  or  declaration  of 
trust,  and  to  decide  within  which  clause  it  should  fall,  the 
whole  clause  must  be  considered.'  It  is  a  well  settled  rule 
that  it  is  to  be  presumed  that  technical  words  are  used  in  a 
technical  sense,  unless  a  contrary  intent  appears  upon  the  face 
of  the  instrument,  and  that  words  possessing  a  well  known 
definite  legal  signification  are  to  be  treated  as  having  been  used 
in  their  definite  legal  signification.'^  If  there  is  anything  in 
the  deed  to  show  the  grantor's  intention  to  use  technical  words 
in  a  different  sense,  the  court  will  undertake  to  ascertain  and 

2Moran  v.  Lezotte,  54  Mich.  83,  'Tinder  v.  Tinder,  131  Ind.  381, 

19  N.  W.  557.  30  N.  E.  1097. 

3Uhl  V.  Ohio  R.  Co.,  51  W.  Va.  8  McCoy  v.  Fahrney,  182  111.  60, 

106,  41  S.  E.  340.  55  N.  E.  61. 

*  Dougan  v.  Town  of  Greenwich,  ^  Mackenzie      v.      Trustees      of 

n  Conn.  444,  59  Atl.  505.  Presbytery   of   Jersey    City,   67    N. 

6  Jennings  v.   Brizeadine,  44  Mo.  J.  Eq.  652,  3  L.R.A.(N.S.)  227,  61 

332.  Atl.   1027. 

6  Hudson's     Heirs     v.     Hudson's  ^a  Nyg  v.  Lovitt,  92  Va.  710,  24 

Admr.,  121  S.  W.  973.  S.    E.   345. 


CHAP.    XXV.]      PRINCIPLES   OF    CONSTRUCTION.  1537 

effectuate  the  intention  of  the  grantor,*  and  pnuctuation  is  nev- 
er allowed  to  interfere  with  the  natural  and  customary  meaning 
of  the  language  used.^  The  plain  intent  of  the  deed  will  not 
he  defeated  by  any  inaccuracy  of  the  language  employed.'' 
If  the  grantee  assumes  and  agrees  to  pay  all  existing  mort- 
gages, liens,  taxes  and  claims  of  every  character  the  latter 
clause  does  not  restrict  the  claims  to  such  as  are  indicated 
by  the  terms  "mortgages,  liens,  and  taxes,"  *  as  general  words 
are  not  limited  by  the  addition  of  restrictive  words,  where 
such  an  intention  is  not  clearly  apparent.*  The  character  "&" 
in  a  deed  is  equivalent  to  the  word  "and."  ^  The  habendum 
clause  in  case  of  doubt  is  frequently  an  important  fact  in  ar- 
riving at  the  intent  of  the  parties.'  The  language  in  which 
the  deed  is  expressed  controls  the  construction  but,  if  neces- 
sary, consideration  can  be  given  to  the  circumstances  leading 
up  to  its  execution;  the  object  always  to  be  kept  in  view,  how- 
ever, is  to  give  its  language  such  an  interpretation  as  will 
effectuate  the-  intention  which  the  parties  may  be  presumed  to 
have  had  in  the  use  of  the  words,  wherever  this  can  be  accom- 
plished without  straining  the  language  beyond  its  fair  import.' 
In  the  case  of  the  misspelling  of  a  word  the  construction  will 
be  according  to  the  meaning  of  the  word  intended,  especially 
so,  when,  if  effect  was  given  to  the  word  actually  used,  no  effect 

1  Wallace  v.  Hodges,  160  Ala.  276,  141  Mich.  258,  104  N.  W.  579.  The 
49  So.  312.  intent  may  be  collected   by  giving 

2  O'Brien  v.  Brice,  21  W.  Va.  proper  effect  to  the  language  used, 
704;  Thatcher  v.  Wardens,  etc.,  37  considered  in  the  light  of  the  cir- 
Mich.  264.  cumstances  connected  with  the  trans- 

3  Jacoby  v.  Nichols,  62  S.  W.  734.  action,  the  situation  of  the  parties 

4  Gage  V.  Cameron,  212  111.  146,  and  the  condition  of  the  country  and 
72  N.  E.  204.  also  the  estate  granted :     Proctor  v. 

5  S.  K  &  H.  L.  Shepherd  Co.  v.  Maine  Cent.  R.  Co.,  96  Me.  458,  52 
Shiblcs,  100  Me.  314,  61  At!.  700.  Atl.  933. 

6Beedy  v.  Finney,  118  Iowa,  276,  8  Deery  v.  City  of  Waterbury,  82 

91  N.  W.  1064.  Conn.  567,  25  L.R.A.  681,  74  AtL 

TLinville  v.  Greer,  165  Mo.  380,      903. 
65  S.  W.  579;  Meacham  v.  Blaess. 
Deeds,  Vol.  EL— 97 


1538 


THE    LAW    OF    DEEDS. 


[chap.    XXV. 


would  be  given  to  clause  in  which  the  word  appears.^  A  deed 
should  be  construed  in  its  entirety  and  in  the  light  of  all  its 
provisions.*  It  should  be  viewed  as  an  entire  instru- 
ment, and  should  be  construed  as  a  whole,  giving  proper  con- 
sideration to  every  part  of  it.^  If  possible  no  part  should  be 
rejected,'  nor  any  part  considered  ineffective,*  and  it  is  possi- 
ble that  a  number  of  facts  may  lead  to  a  conclusion  which  no 
one  singly  would  justify.^  If  a  party  claims  under  a  deed, 
he  must  accept  it  as  a  whole  and  he  cannot  adopt  those  parts 
which  are  favorable  to  him,  and  reject  those  that  are  unfav- 
orable.* 

§  845.  Construing  deeds  together. — When  two  or 
more  deeds  are  executed  at  the  same  time  between  the  same 
parties,  in  relation  to  the  same  subject  matter,  they  may,  in 
some  instances,  for  the  purpose  of  construing  their  intent  and 
effect,  be  taken  together  and  treated  as  one  instrument.'  But 
to  enable  two  or  more  instruments  to  be  read  together  it  is 


SBaustic  V.  Phillips,  134  Ky.  711, 
121  S.  W.  629. 

1  Waldermeyer  v.  Locbig,  222  Mo. 
540,  121  S.  W.  75;  Steepler  v. 
Silberberg,  220  Mo.  258,  119  S.  W. 
418;  White  v.  Bailey,  65  W.  Va. 
573,  23  L.R.A.(N.S.)  232,  64  S.  R 
1019;  Lyford  v.  City  of  Laconia, 
75  N.  H.  220,  22  L.R.A.(N.S.)  1062, 
72  Atl.   1085. 

2  Wolfe  V.  Dyer,  95  Mo.  545,  8 
S.  W.  551;  M'Cullock  v.  Holmes, 
111  Mo.  445,  19  S.  W.  1096;  Daven- 
port V.  Gwilliams,  133  Ind.  142, 
22  L.R.A.  244,  31  N.  E.  790 ;  Chew 
V.  Zweib,  29  Tex.  Civ.  App.  311, 
69  S.  W.  207;  Hunt  v.  Hunt,  119 
Ky.  39,  68  L.R.A.  ISO,  82  S.  W. 
998;  Williams  v.  Owen,  116  Ind. 
71,  18  N.  E.  389. 

'Jones  V.  Pashby,  62  Mich.  614, 
29  N.  W.  374. 


*  Williams  v.  Owen,  116  Mo.  71, 
18  N,  E.  389. 

6  Crocker  v.  Cutting,  166  Mass, 
183,  33  L.R.A.  245,  44  N.  E.  214. 

6  Jacobs  V.  Miller,  SO  Mich.  119, 
15  N.  W.  42.  All  the  provisions  of 
the  deed  must  be  considered  by  the 
court:  Young  v.  Camp  Mfg.  Co., 
110  Va.  678,  66  S.  E.  843,  and  ef- 
fect must  be  given  to  it  as  a  whole 
if  possible :  Fletcher  v.  Lyon,  123  S. 
W.  801.  A  deed  should  be  con- 
strued so  that  all  its  parts  shall  be 
made  operative  if  possible:  Ly- 
ford V.  City  of  Laconia,  75  N.  H. 
220,  22  L.R.A.  (N.S.)  1062,  72  AtL 
1085. 

■^Clap  v.  Draper,  4  Mass.  266,  3 
Am.  Dec.  215;  Cornell  v.  Todd.  2 
Denio,  130;  King  v.  King,  7  nias:;. 
496;  Patterson  v.  Donner,  48  Cal. 
369;   Cloyes  v.   Sweetser,  3   Cush. 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION. 


1539 


not  sufficient  that  they  were  made  between  the  same  parties 
and  at  the  same  time.  The  rule  cannot  apply  unless  the  in- 
struments themselves  show,  or  the  fact  is  made  to  appear  by 
extrinsic  evidence,  that  they  relate  to  the  same  transaction. 
Hence,  where  a  party's  title  to  two  adjoining  parcels  of  land 
is  derived  by  a  separate  deed  for  each  parcel,  from  the  same 
grantor,  and  bearing  the  same  date,  but  which  do  not  refer 
to  each  other,  and  in  one  of  the  deeds  a  piece  of  land  which  is 
parcel  of  the  premises  conveyed  by  the  other  deed  is  in  terms 
excepted,  each  deed  must  stand  by  itself ;  and  as  the  excep- 
tion is  not  for  a  part  or  the  thing  granted  by  the  deed  in  which 
it  was  contained,  it  is  void.*     When  the  same  grantor  makes 


403 ;  Jackson  v.  McKenny,  3  Wend. 
233,  20  Am.  Dec.  690;  Jackson  v. 
Dunsbagh,  1  Johns.  Cas.  91 ;  Gerdes 
V.  Moody,  41  Cal.  335;  Pulliam  v. 
Bennett,  55  Cal.  368.  See  Putnam 
V.  Stewart,  97  N.  Y.  411;  Moore  v. 
Fletcher,  16  Me.  63,  33  Am.  Dec. 
633 ;  Leach  v.  Leach,  4  Ind.  628,  58 
Am.  Dec.  642 ;  Wildman  v.  Tay- 
lor, 4  Ben.  42;  Isham  v.  Morgan, 
9  Conn.  374,  23  Am.  Dec.  361. 

8  Cornell  v.  Todd,  2  Denio,  130. 
Said  the  court,  per  Bronson,  C.  J. : 
"It  is  not  necessary  that  the  in- 
struments should  in  terms  refer  to 
each  other,  if,  in  point  of  fact  they 
are  parts  of  a  single  transaction. 
But  until  it  appears  that  they  are 
such,  either  from  the  writings 
themselves,  or  by  extrinsic  evidence, 
the  case  is  not  brought  within  the 
rule.  Now,  here  there  is  no  ref- 
erence in  either  of  the  two  deeds 
to  the  other;  nor  is  there  any  ex- 
trinsic evidence,  if  such  would  have 
been  admissible,  that  they  were  both 
parts  of  one  act.  They  are  between 
the  same  parties,  and  have  the  same 
date;  but  it  is  not  inferable  from 


those  facts  alone  that  they  are 
parts  of  a  single  transaction.  It 
may  very  well  be  that  the  same  par- 
ties should  have  several  transac- 
tions in  one  day,  and  of  the  same 
general  nature,  and  yet  that  each 
one  should  be  distinct  from  and 
wholly  independent  of  the  other. 
But  there  is  something  more  than 
the  want  of  a  connecting  link  be- 
tween these  two  deeds.  They  do 
not  relate  to  the  same  subject  mat- 
ter. It  is  true  that  they  are  both 
conveyances  of  land ;  but  the  par- 
cels are  separate  and  distinct,  and 
each  deed  stands  upon  its  own  in- 
dependent consideration.  This  is 
a  decisive  feature  in  the  case. 
Where  two  deeds  neither  refer  to 
each  other,  nor  relate  to  the  same 
subject  matter,  I  am  not  aware  of 
any  principle  upon  which  one  can 
be  made  to  qualify,  or  in  any  way 
affect  the  legal  construction  of  the 
other.  No  extrinsic  evidence  could 
help  out  the  defendant's  case;  for 
whatever  might  be  proved,  it  would 
still  remain  true  that  the  deeds 
themselves  neither  refer  the  one  to 


1540 


THE    LAW    OF    DEEDS. 


[chap.    XXV. 


separate  deeds  to  different  grantees,  they  will  not  be  construed 
together  in  determining  the  rights  of  the  grantees  with  re- 
spect to  the  common  subject  matter,®  Where  a  grantor  exe- 
cuted a  deed  conveying  the  absolute  fee,  and,  at  the  same  time, 
the  grantee  executed  an  instrument  which  recited  that  he  re- 
ceived the  property  charged  with  the  settlement  of  the  just 
debts  of  the  grantor,  this  instrument  is  admissible  in  evidence 
in  an  action  of  ejectment  brought  by  the  grantee  to  show,  on 
the  part  of  the  defendant,  that  the  grantee  had  put  a  trust  in 
the  property,  and  that  therefore  the  widow  of  the  grantor,  who 
had  intermarried  with  the  defendant  since  the  execution  of  the 
deed,  was  entitled  to  dower  in  the  land.^  If  several  deeds 
of  release  are  executed  as  parts  of  one  and  the  same  trans- 
action in  effecting  a  partition  of  real  estate  between  heirs,  ten- 
ants in  common,  they  must,  in  their  construction,  be  read  to- 
gether, and  by  their  combined  effect  the  rights  of  the  parties 
under  them  must  be  settled.^  Reciting  a  previous  agreement 
in  a  deed  is  equivalent  to  confirming  and  renewing  it.^    While 


the  other,  nor  do  they  relate  to  the 
same  subject  matter;  and  parol  evi- 
dence cannot  be  allowed  to  control 
the  legal  effect  or  operation  of  a 
deed."  For  a  case  in  which  an 
absolute  deed  and  a  deed  in  trust 
for  the  benefit  of  the  grantor's  un- 
secured creditors  were  construed  to- 
gether, see  Kruse  v.  Prindle,  8  Or. 
158. 

9  Rexford  v.  Marquis,  7  Lans.  249. 

^Doe  V.  Bernard,  15  Miss.  (7 
Smedes  &  M.)  319.  And  see  Bell 
V.  Mayor  of  New  York,  10  Paige, 
49 ;  Pepper  v.  Haight,  20  Barb.  429 ; 
Ford  V.  Belmont,  7  Rob.  (N.  Y.) 
97;  Everett  v.  Thomas,  1  Ired. 
252;  Field  v.  Huston,  21  Me.  69. 

2  White  V.  Brocaw,  14  Ohio  St. 
339. 

3  .Salbourn  v.  Houstoun,  1  Bing. 
433;    Barfoot   v.    Freswell,   3   Keb. 


465;  Sampson  v.  Easterby,  9  Barn, 
&  C.  505.  But  covenants  contained 
in  a  prior  agreement  will  not  run 
with  the  land  because  the  deed  re- 
cites that  it  is  executed  "per  agree- 
ment" :  Close  v.  Burlington,  Cedar 
Rapids  etc.  Ry.  Co.,  64  Iowa,  149. 
And  see  Hunt  v.  Amidon,  4  Hill, 
345 ;  40  Am,  Dec.  283.  Where  land 
was  sold  on  condition  that  the  ven- 
dee and  a  third  party  should  exe- 
cute a  bond  not  to  erect  certain 
buildings  on  the  land,  and  the  bond 
was  signed  before  the  execution  of 
the  deed,  but  both  were  delivered 
on  the  same  day,  the  court  held  that 
the  two  instruments  should  be  con- 
strued as  parts  of  one  and  the  same 
transaction,  notwithstanding  that 
the  deed  did  not  refer  to  the  bond, 
and  the  bond  recited  that  the  ven- 
dee had  purchased  the  land :  Rob- 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1541 

for  the  purpose  of  reaching  a  proper  construction,  several  deeds 
may  be  considered  together,*  the  court  cannot  consider  a  deed 
made  subsequently  by  the  grantor  to  a  third  person.^  If  a 
deed  refers  to  a  will  for  the  purpose  of  stating  with  greater 
exactness  the  rights  of  some  of  the  parties,  the  deed  and  will 
should  be  read  together  as  parts  of  one  transaction.^  If  at 
or  about  the  same  time,  between  the  same  parties,  and  concern- 
ing the  same  subject  matter,  a  deed  and  an  agreement  are 
made,  they  will  be  considered  as  one  instrument.'  Likewise 
the  court  may  consider  a  will,  lease,  and  deed  executed  about 
the  same  time  and  appearing  to  be  parts  of  one  transaction, 
and  may  for  the  purpose  of  construing  the  deed,  consider  the 
circumstances  under  which  all  these  instruments  were  exe- 
cuted.®  On  the  sale  of  a  tract  of  land,  the  purchasers  paid 
a  sum  of  money  when  the  deed  was  executed  and  agreed  in 
writing  that  they  would  pay  an  additional  amount  at  a  future 
date,  for  which  they  gave  their  note,  or  if  they  failed  to  make 
such  payment,  would  rescind  the  contract,  reconvey  the  prop- 
erty to  the  grantor,  and  receive  the  amount  paid  by  them  at 
the  time  of  the  execution  of  the  deed.  This  written  agree- 
ment, the  court  considered  should  be  treated  as  part  of  the 
deed.®  If  a  husband  and  wife  desiring  to  vest  a  separate 
estate  in  each  of  them,  convey  a  tract  of  land  to  a  trustee, 
who  for  the  purpose  of  carrying  out  the  object  of  the  parties, 
reconveys  separate  portions  of  such  tract  to  the  husband  and 
to  the  wife,  all  the  deeds  should  be  considered  as  part  of  the 

bins  V.  Webb,  68  Ala.  393.    A  prior  ^  Nye  v.   Lovitt,  92  Va.   710,  24 

unrecorded  deed  is  not  defeated  by  S.  E.  345. 

a  subsequent  deed  of  the  grantor's  ^  Allen  v.  De  Groodt,  105  Mo.  442, 

"now    remaining   interest"   in   land,  16  S.  W.  494,   1049. 

because  both  deeds  may  stand  to-  "^  McCoy  v.  Gris wold,  114  111.  App. 

gether,   as  the  second   deed   is  not  556. 

a  conveyance  of  anything  previously  ^  Jack  v.   Hooker,   71    Kan.   652, 

conveyed :      Eaton    v.   Trowbridge,  81  Pac.  203. 

38  Mich.  455.  ^  Pursley  v.  Good,  94  Mo.  App. 

*  Maxon  v.  Maxon,  16  N.  Y.  St.  382,  68  S.  W.  218. 
Rep.  74,  48  Hun,  416. 


1542 


THE    LAW    OF   DEEDS.  [CHAP.    XXV. 


same  transaction  and  construed  together.*  While  a  collateral 
writing  made  at  the  same  time  as  a  deed  may  enlarge  or  de- 
crease, explain  or  qualify  the  estate  which  the  deed  conveys, 
it  will'not  be,  where  there  is  a  repugnance,  allowed  to  destroy 
the  estate  granted.'^  If  a  deed  declares  that  it  is  subject  to 
the  covenants  and  agreeuKnts  of  a  recorded  contract,  the  pro- 
visions of  the  contract  are  made  a  part  of  the  deed;'  and  if  a 
deed  refers  to  another  deed  with  sufficient  certainty,  it  »vill 
have  the  same  effect  as  if  the  deed  referred  to  was  set  out  in 
full.*  Where  the  parties  execute  a  deed  in  the  form  of  a 
grant,  conveyance  and  sale,  and  four  days  later  execute  a 
declaration  of  trust  making  the  deed  subject  to  the  provisions 
of  the  trust  agreement,  they  both  should  be  construed  as  parts 
of  a  single  transaction.^ 

§  846.  Rule  in  Shelley's  case.— The  rule  in  Shelley's 
case  has  been  much  discussed  in  works  treating  of  the  law  of 
real  property.  The  rule  is  thus  stated :  "When  the  ancestor 
by  any  gift  or  conveyance,  taketh  an  estate  of  freehold  and 

1  Leach  v.  Rains,  149  Ind.  152,  48  App.  163,  106  Pac.  896;  Agan  v. 
N.  E.  858.  See,  also,  Early  v.  Shannon,  103  Mo.  661,  15  S.  W. 
Douglass,    110  Ky.   813,  62   S.   W.      757. 

860 ;   Hacker  v.  Hoover,  66  S.  W.  ^  Younger  v.  Moore,  155  Cal.  767, 

382.  103  Pac.  221.     If  a  deed  refers  to 

2  Lewis  V.  Curnutt,  130  Iowa,  423,  another  instrument,  the  document 
106  N.  W.  914.  A  deed  referring  referred  to  will  have  the  same 
to  a  survey  adopts  it  and  both  effect  as  if  it  was  set  out  at  length 
should  be  construed  together :  Hef-  in  the  deed  :  Jacobs  v.  All  Persons, 
felman  v.  Otsego  Water  Power  12  Cal.  App.  163,  106  Pac.  896.  See 
Co.,  78  Mich.  121,  43  N.  W.  1096,  as  to  construing  deeds  and  agree- 
44  N.  W.  1151;  Hoffman  v.  City  of  ments,  together:  Grindle  v.  Grin- 
Port  Huron,  102  Mich.  417,  60  N.  die,  240  111.  143,  88  N.  E.  473;  Wal- 
W.  831 ;  Hays  v.  Perkins,  109  Mo.  der  Meyer  v.  Loebig,  222  Mo.  540, 
102,  18  S.  W.  1127;  Preston  v.  121  S.  W.  75;  Drake  v.  Russian 
Heiskell's   Trustee,  32  Gratt.  48.  River  Land  Co.,  10  Cal.  App.  654, 

3Epworth   League   Training   As-  103  Pac.  167;  Wecker  v.  Zuercher 

sembly  v.  Olney,  136  Mich.  50,  98  (Tex.  Civ.  App.)    118  S.  W.   149; 

N.  W.  360.  Hensley  v.   Burt  etc.  Lumber  Co., 

4  Jacobs  V.  All  Persons,  12  Cal.  132  Ky.  112,  116  S.  W.  316. 


CHAP,    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  154^ 

in  the  same  gift  or  conveyance  an  estate  is  limited,  either 
mediately  or  immediately,  to  his  heirs  in  fee  or  in  tail,  the 
heirs  are  words  of  limitation  of  the  estate,  and  not  words  of 
purchase."  ^  In  Kent's  Commentaries,  the  definition  given 
by  Mr.  Preston  as  abridged,  is  said  to  be  full  and  accurate: 
"When  a  person  takes  an  estate  of  freehold,  legally  or  equit- 
ably, under  a  deed,  will,  or  other  writing,  and  in  the  same  in- 
strument there  is  a  limitation  by  way  of  remainder,  either  with 
or  without  the  interposition  of  another  estate,  of  an  interest 
of  the  same  legal  or  equitable  quality,  to  his  heirs  or  heirs  of 
his  body,  as  a  class  of  persons  to  take  in  succession,  from  gen- 
eration to  generation,  the  limitation  to  the  heirs  entitles  the 
ancestor  to  the  whole  estate."'  And  Kent  himself  says: 
"The  word  'heirs,'  or  'heirs  of  the  body,'  creates  a  remainder 
in  fee  or  in  tail,  which  the  law  to  prevent  an  abeyance  vests 
in  the  ancestor,  who  is  tenant  for  life,  and  by  the  conjunction 
of  the  two  estates  he  becomes  tenant  in  fee  or  in  tail;  and 
whether  the  ancestor  takes  the  freehold  by  express  limitation, 
or  by  resulting  use,  or  by  implication  of  law;  in  either  case 
the  subsequent  remainder  to  his  heirs  unites  with  and  is  exe- 
cuted on  his  estate  for  life.  Thus  where  A  was  seised  in  fee, 
and  covenanted  to  stand  seised  to  the  use  of  his  heirs  male, 
it  was  held  that  as  the  use  during  his  life  was  undisposed  of, 
it  of  course  remained  in  him  for  life  by  implication,  and  the 
subsequent  limitation  to  his  heirs  attached  in  him."  *  This 
rule  has  in  a  number  of  instances  as  to  both  deeds  and  wills, 
been  recognized  and  enforced  in  this  country  as  a  part  of  the 
common  law.^     But  in  many  States  the  rule  is  now  abolished 

•1  Coke,  104.  *4   Kent's   Com.   215. 

7  4  Kent's  Com.  215;   1   Preston  ^  Ridgeway  v.  Lamphear,  99  Ind. 

on    Estates,    263-419.      But    where  251 ;   Payne  v.   Salye,  2  Dev.  &  B. 

this   rule   still   prevails,   courts   are  Eq.  455 ;  Ware  v.  Richardson,  3  Md. 

inclined    to    confine    its    operation  505,  56  Am.  Dec.  762;  Roy  v.  Gar- 

within  strict  limits:    Mcllhinney  v.  nett,    2    Wash.    (Va.)    9;    Polk    v. 

Alcllhinny,  137  Ind.  411,  24  L.R.A.  Paris,   9    Yerg.   209,    30    Am.    Dec. 

489,  45  Am.   Sl   Rep.    186.  400;  Simper's  Lessee  v.  Simper,  15 


1544  THE    LAW    OF    DEEDS.  [CIIAP.    XXV. 

by  statute,  and  of  the  abolition  of  the  rule,  it  is  said  by  Kent 
that  "in  its  practical  operation  it  will,  in  cases  where  the  nile 
would  otherwise  have  applied,  change  estates  in  fee  into  con- 
tingent remainders.  It  sacrifices  the  paramount  intention  in 
all  cases,  and  makes  the  heirs  instead  of  the  ancestor  the  stirps 
or  terminus  from  which  the  posterity  of  heirs  is  to  be  deduced. 
It  will  tie  up  property  from  alienation  during  the  lifetime  of 
the  first  taker,  and  the  minority  of  his  heirs.  But  this,  it  may 
perhaps  be  presumed,  was  the  actual  intention  of  the  party  in 
every  case,  in  which  he  creates  an  express  estate  for  life  in 
the  first  taker,  for  otherwise  he  would  not  have  so  limited  it. 
It  is  just  to  allow  individuals  the  liberty  to  make  strict  settle- 
ments of  their  property  in  their  own  discretion,  provided  there 
be  nothing  in  such  dispositions  of  it  affecting  the  rights  of 
others,  nor  inconsistent  with  public  policy  or  the  settled  prin- 
ciples of  law.  But  this  liberty  of  modifying  at  pleasure  the 
transmission  of  property  is  in  many  respects  controlled,  as  in 
the  instance  of  a  devise  to  charity,  or  to  aliens,  or  as  to  the 
creation  of  estates  tail ;  and  the  rule  in  Shelley's  case  only 
operated  as  a  check  of  the  same  kind  and  to  a  very  moderate 
degree.  Under  the  existence  of  the  rule,  land  might  be  bound 
up  from  circulation  for  a  life,  and  twenty  one  years  afterward, 
only  the  settler  was  required  to  use  a  little  more  explicitness 
of  intention  and  a  more  specific  provision.  The  abolition  of 
the  rule  facilitates  such  settlements,  though  it  does  not  en- 
large the  individual  capacity  to  make  them;  and  it  is  a  ques- 
tion for  experience  to  decide  whether  this  attainable  advan- 
tage will  overbalance  the  inconvenience  of  increasing  fetters 
upon  alienation,  and  shaking  confidence  in  law,  by  such  an  en- 
tire and  complete  renunciation  of  a  settled  rule  of  property, 

Md.  160;  Carr  v.  Porter,  1  McCord  Little,  7  Jones  (N.  C),  145;  Lyles 

Ch.  60;  Dott  v.  Cunnington,  1  Bay,  v.  Digges,  6  Har.  &  J.  364,  IS  Am. 

453;    1   Am.   Dec.   624;    Cooper   v.  Dec.  281;  Bishop  v.  Selleck,  1  Day, 

Cooper,  6   R.   I.  261;   Davidson  v.  299;  Brant  v.  Gelston,  2  Johns.  Cas. 

Davidson,  1  Hawks,  163;  Home  v.  384.     See  Green  v.  Green,  23  Wall, 

Lyeth,  4  Har.  &  J.  531;  Kiser  v.  486. 
Kiscr,  2  Jones  Eq.  28;  Hodges  v. 


CHAP,    XXV.]       PRINCIPLES    OF    CONSTRUCTION. 


1545 


memorable  for  its  antiquity,  and  for  the  patient  cultivation 
and  discipline  which  it  has  received."  ^ 


14  Kent's  Com.  232.  And  in  a 
note  he  adds:  "The  juridical 
scholar  on  whom  his  great  master, 
Coke,  has  bestowed  some  portion  of 
the  'gladsome  light  of  jurispru- 
dence,' will  scarcely  be  able  to  with- 
hold an  involuntary  sigh  as  he  casts 
a  retrospective  glance  over  the  piles 
of  learning  devoted  to  destruction 
by  an  edict  as  sweeping  and  unre- 
lenting as  the  torch  of  Omar.  He 
must  bid  adieu  forever  to  the  re- 
nowned discussions  in  Shelley's 
case,  which  were  so  vehement  and 
so  protracted  as  to  rouse  the  sceptre 
of  the  haughty  EHzabeth.  He  may 
equally  take  leave  of  the  multiplied 
specimens  of  profound  logic,  skill- 
ful criticism,  and  refined  distinctions 
which  pervade  the  varied  cases  in 
law  and  equity,  from  those  of  Shel- 
ley and  Archer,  down  to  the  direct 
collision  between  the  courts  of  law 
and  equity,  in  the  time  of  Lord 
Hardwicke.  He  will  have  no  more 
concern  with  the  powerful  and  ani- 
mated discussions  in  Perrin  v. 
Blake,  which  awakened  all  that  was 
noble  and  illustrious  in  talent  and 
endowment,  through  every  precinct 
of  Westminster  Hall.  He  will  have 
occasion  no  longer  in  pursuit  of  the 
learning  of  that  case,  to  tread  the 
clear  and  bright  paths  illuminated 
by  Sir  William  Blackstone's  illustra- 
tions, or  to  study  and  admire  the 
spirited  and  ingenious  dissertation 
of  Hargrave,  the  comprehensive  and 
profound  disquisition  of  Fearne,  the 
acute  and  analytical  essay  of  Pres- 
ton, the  neat  and  orderly  abridg- 
ment of  Cruise,  and  the  severe  and 


piercing  criticisms  of  Reeves.  What 
I  have,  therefore,  written  on  this 
subject,  may  be  considered,  so  far 
as  my  native  State  is  concerned,  as 
a  humble  monument  to  the  memory 
of  departed  learning" :  4  Kent's 
Com.  232.  In  Missouri,  since  the 
abolition  of  this  rule,  a  deed  to  a 
person  for  life,  with  remainder  over 
in  fee  simple  to  the  heirs,  creates 
simply  a  life  estate  in  such  person : 
Tesson  v.  Newman,  62  Mo.  198.  As 
to  the  States  in  which  this  rule  has 
been  abolished,  see  Alabama  Code 
1867,  §  1574;  New  York,  Rev.  Stats 
(4th  ed.)  pt.  2,  tit.  2,  art.  1,  §  28 
Virginia  Code,  1873,  c.  112,  §  11 
Wisconsin,  Rev.  Stats.  1878,  §  2052 
California,  Civil  Code,  §  779 
Maine,  Rev.  Stats.  1883,  c.  11,  §  6 
Connecticut,  Gen.  Stats.  1866,  p. 
537,  §  5;  Rev.  Stats.  1875,  tit.  18 
c.  6,  §  4;  Kentucky,  Rev.  Stats. 
1852,  c.  80,  §  10;  Massachusetts, 
Pub.  Stats,  c.  126,  §  4;  Michigan, 
Comp.  Laws,  1857,  c.  85,  §  28; 
Annot.  Stats.  §  5544;  Minnesota, 
Rev.  Stats,  c.  45,  §  28;  Comp.  Laws, 
1859,  c.  31,  §  28;  Missouri,  Rev. 
Stats.  1879,  §  3943;  New  Jersey, 
Stats,  tit.  10,  c.  2,  §  10;  Tennessee, 
Code,  1858,  §  2008;  Mill  &  Vert. 
Code,  §  2514.  And  see,  also,  Comp. 
Laws  Kansas,  1879,  c.  117,  §  52; 
Mississippi,  Code,  1880,  §  1201; 
New  Hampshire,  Gen.  Stats.  1867, 
c.  174,  §  5 ;  Gen.  Laws,  c.  193,  §  5 ; 
New  Jersey,  Stats,  tit.  10,  c.  2,  §  10 ; 
Rev.  Stats.  1877,  Descent,  §  10; 
Rhode  Island,  Pub.  Stats.  1882,  c. 
182,  §  2;  Hopper  v.  Demarest,  21  N. 
J.  L.  525;  Goodrich  v.  Lampert,  10 


1546 


THE    LAW    OF    DEEDS. 


[chap.    XXV. 


The  rule  in  the  states  where  it  still  prevails  is  considered  not 
a  rule  of  interpretation,  but  an  inflexible  rule  of  property  and 
is  not  deemed  a  means  whereby  the  intention  may  be  ascer- 
tained, but  one  of  imperative  obligation.^  The  words,  "heirs 
of  his  body,"  are  deemed  equivalent  to  the  word  "heirs"  alone. 
Where  a  deed  conveyed  the  property  to  the  grantee  for  life,  and 
after  his  death,  to  the  heirs  of  his  body  lawfully  begotten,  to 


Conn.  448;  Dennett  v.  Dennett,  40 
N.  H.  500;  Richardson  v.  Wheat- 
land, 7  Met.  169;  Wiliamson  v.  Wil- 
liamson, 18  B.  Mon.  329 ;  Moore  v. 
Littel,  40  Barb.  488;  3  Wash.  Real 
Prop.  (5th  ed.)  p.  657.  See  for  de- 
cisions affecting  this  rule,  Yarnall's 
Appeal,  70  Pa.  St.  342;  Adams  v. 
Guerard,  29  Ga.  675;  Id  Am.  Dec. 
624;  Pierce  v.  Pierce,  14  R.  I.  514; 
Hawkins  v.  Lee,  22  Tex.  547;  Han- 
cock V.  Butler,  21  Tex.  804 ;  Paxson 
V.  Lefferts,  3  Rawle,  59;  George  v. 
Morgan,  16  Pa.  St.  95;  Powell  v. 
Brandon,  24  Miss.  364;  Ross  v. 
Adams,  28  N.  J.  L.  172;  Baker  v. 
Scott,  62  111.  86 ;  Steiner  v.  Kolb,  57 
Pa.  St.  123;  Adams  v.  Ross,  30  N. 
J.  L.  512,  82  Am.  Dec.  237;  Cris- 
well's  Appeal,  41  Pa.  St.  290 ;  Hal- 
deman  v.  Haldeman,  40  Pa.  St.  35; 
Halstead  v.  Hall,  60  Md.  209;  Bels- 
lay  V.  Engel,  107  111.  182;  Price  v. 
Taylor,  28  Pa.  St.  102,  70  Am.  Dec. 
105;  Kepple's  Appeal,  53  Pa.  St. 
211.;  Stump  v.  Jordan,  54  Md.  619; 
Price  V.  Sisson,  13  N.  J.  Eq.  177; 
Baker  v.  Scott,  62  111.  86;  Bannister 
V.  Bull,  16  S.  C.  220;  Brislain  v. 
Wilson,  63  111.  175 ;  Clark  v.  Smith, 
49  Md.  106;  Kleppner  v.  Laverty, 
70  Pa.  St.  IZ ;  Terrell  v.  Cunning- 
ham, 70  Ala.  100;  May  v.  Ritchie,  65 
Ala.  602;  Flint  v.  Steadman,  36  Vt. 
210;  Oyster  v.  Oyster,  100  Pa.  St. 
538;  45  Am.  Rep.  388;  Warner  v. 


Sprigg,  62  Md.  14;  Adams  v. 
Adams,  6  Q.  B.  860;  Pybus  v.  Mit- 
ford,  2  Lev.  11  \  Webster  v.  Cooper, 
14  How,  500;  Quillman  v.  Custer, 
57  Pa.  St.  125;  Doebler's  Appeal, 
64  Pa.  St.  17;  Tyler  v.  Moore,  42 
Pa.  St.  374;  Ford  v.  Flint,  40  Vt. 
394 ;  Lees  v.  Mosley,  1  Younge  &  C. 
589;  Greenwood  v.  Rothwell,  5 
Man.  &  G.  628;  Ridgeway  v.  Lamp- 
hear,  99  Ind.  251 ;  Bagnall  v.  Har- 
vey, 4  Barn.  &  C.  610;  Abbott  v. 
Jenkins,  10  Serg.  &  R.  296;  Hennes- 
sy  V.  Patterson,  85  N.  Y.  91 ;  Ward 
V.  Armory,  1  Curt.  419;  Jones  v. 
Miller,  13  Ind.  ZZl ;  Mclntyre  v. 
Mclntyre,  16  S.  C.  290;  Macumber 
V.  Bradley,  28  Conn.  445 ;  Carter  v. 
McMichael,  10  Serg.  &  R.  429; 
George  v.  Morgan,  16  Pa.  St.  95. 

2  Baker  v.  Scott,  62  111.  86;  King 
V.  Beck,  15  Ohio,  559;  Hurst  v. 
Wilson,  89  Tenn.  270,  14  S.  W.  778; 
Teal  V.  Richardson,  160  Ind.  119, 
66  N.  E.  435 ;  Burton  v.  Carna- 
han,  38  Ind.  App.  612,  78  N.  E. 
682;  Shimer  v.  Mann,  99  Ind.  190, 
SO  Am.  Rep.  82;  Duckett  v.  But- 
ler, 67  S.  C.  130,  45  S.  E.  137; 
Crandell  v.  Barker,  8  N.  D.  363; 
McFall  V.  Kirkpatrick,  236  111.  281, 
86  N.  E.  139;  Lord  v.  Comstock, 
240  111.  492,  83  N.  E.  1012;  Ewing 
V.  Barnes,  156  111.  61,  40  N.  E. 
325 ;  Hageman  v.  Hageman,  129 
lU.  164,  21  N.  E.  814. 


CHAP.    XXV.]       PRINCIPLES   OF    CONSTRUCTION.  1547 

have  and  to  hold  during  his  natural  life,  and  after  his  death  to 
the  heirs  of  his  body  lawfully  begotten,  the  words  "heirs  of  his 
body"  were  considered  to  be  words  of  limitation.^  The  word 
"issue"  is  ambiguous  in  that  it  may  mean  heirs  and  may  also 
mean  children.  It  is  said  that  if,  from  the  connection  in  which 
it  is  used,  it  is  to  be  taken  as  meaning  heirs,  it  is  a  word  of  limi- 
tation,* but  it  is  also  held  to  be  a  word  of  purchase.^  Courts, 
however,  are  inclined  to  construe  the  word  as  meaning  children 
to  carry  the  intention  of  a  testator  into  effect.^  Where  a  deed 
was  made  to  the  grantee  for  life  and  at  his  death  to  his  "sur- 
viving" heirs,  the  court  in  a  recent  case  in  North  Carolina  held 
that  the  first  taker  acquired  a  fee,  as  the  word  "surviving"  did 
not  prevent  the  rule  in  Shelley's  case  from  applying.'  If  a 
trust  is  executory  the  rule  in  Shelley's  case  does  not  apply." 
The  rule  in  Shelley's  case  is  firmly  established  in  Illinois,  and 
Mr.  Justice  Dunn  says :  "In  determining  whether  it  is  applic- 
able in  a  given  case,  the  question  does  not  turn  upon  the  quan- 
tity of  estate  intended  to  be  given  to  the  first  taker,  whether  a 

8  Scott  V.  Brin,  48  Tex.  Civ.  App.  Md.    439;    Arnold    v.    Muhlenberg 

500,  107  S.  W.  565.    See,  also,  Wa-  College,  227  Pa.  321,  76  Atl.  30. 

ters  V.  Lyon,  141  Ind.  170,  40  N.  E.  ^  Markley  v.  Singletary,  11  Rich. 

662;    Wilson    v.    Alston,    122    Ala.  Eq.  393;   Martling  v.  Martling,  55 

630.    25    So.    225;    Manchester    v.  N.  J.  Eq.  771,  39  Atl.  203. 

Durfee,  5  R.  I.  549;  Dott  v.  Cun-  « Timanus  v.   Harrower,   142  Pa. 

nington,    1    Bay,   453,    1    Am.    Dec.  432,  21   Atl.  826,  24  Am.   St.   Rep. 

624;    Chamblee   v.   Broughton,    120  507.      Fnma    faa>     however     the 

N.  C.  170,  27  S.  E.   11;  Wilkerson  ^f"-^    '^^"^    >"  ^"^'^    "^^^"^  ^i^e:rs 

/"I     1     oA  r-      -J/;?    7   c    T7    -iiQ  of    the    body.        Shalters    v.    Ladd, 

y    Clark,  80  Ga.  367    7   S.   E.  319,  ^^^  ^^    ^^^^  ^1  Atl.  596;  Pierce  v. 

12    Am.    St.    Rep    258,    Carnes    v.  Hubbard,   152  Pa.   18,  25  Atl.  231. 

Baker,  100  Ga.  779,  28  S.   E.  496;  ^^^  .^  ^'.^j  ^^  ^^^^^^^^^  ^^  ^  ^^^^^ 

Perry  v.   Hackney,    142   N.   C.   368.  ^^  purchase  if  it  appears  that  the 

55  S.  E.  289,  115  Am.  St.  Rep.  741,  testator  intended  children.     Taylor 

9  A.  &  E.  Ann.  Cas.  244;  Lloyd  v.  ^    Taylor,   63    Pa.   481,   3   Am.    St. 

Rambo,  35  Ala.  709;  Harris  v.  Mc-  Rgp    555 

Cann,  75  Miss.  805,  23  So.  631.  7  Price  v.  Griffin,   150  N.   C.  523, 

4  Bradley    v.    Cartwright,    36    L.  64  S.  E.  372,  29  L.R.A.(N.S.)  935. 

J.   C.   P.   N.   S.   218.   25   End.   Rnl.  8  Steele   v.   Smith,  84   S.   C.   464, 

Cus.   661;   Thomas   v.    Higgins,   47  6  S.   E.  200,  29  L.R.A.(N.S.)   939. 


1548 


THE    LAW    OF    DEEDS. 


[chap.    XXV. 


life  estate  or  more,  but  upon  the  nature  of  the  estate  intended 
to  be  given  to  the  heirs,  whether  by  inheritance  or  otherwise.' 

§  846a.  "Heirs"  qualified  by  other  words. — Where  the 
word  "heirs"  is  accompanied  by  other  words  showing  that 
the  grantor  intended  to  designate  certain  persons  who  should 
take  upon  the  death  of  the  grantee,  they  will  take  by  virtue  of 
the  deed  as  purchasers.  Thus,  where  a  deed  conveyed  the 
property  described  in  it  to  a  woman  for  life,  and  at  her  death 
"to  such  heir  or  heirs  as  she  hereafter  may  have,"  the  court 
considered  that  by  the  use  of  the  words  "hereafter  may  have," 
the  grantor  intended  the  word  "heir  or  heirs"  to  mean  children 
who  acquired  title  by  the  conveyance.^  So,  in  another  case 
where  a  deed  conveyed  the  property  to  a  woman  for  life  with 
the  provision  that  upon  her  death  it  should  descend  to  her  chil- 
dren, the  children  of  her  husband,  the  court  was  of  the  opinion 
that  the  words  "children  of  the  husband"  following  the  word 
"heirs,"  showed  that  the  grantor  meant  to  describe  more  par- 


9BiaIs  V.  Davis,  241  111.  536,  89 
N.  E.  706,  29  L.R.A.(N.S.)  92,7. 
See,  also,  Vangieson  v.  Henderson, 
150  111.  119,  36  N.  E.  974;  Ward 
V.  Todd,  239  111.  462,  88  N.  E.  189, 
29  L.R.A.(N.S.)  942.  See  for  oth- 
er cases  in  which  tTie  rule  has  been 
applied  Doyle  v.  Andis,  127  Iowa, 
36,  102  N.  W.  177,  69  L.R.A.  953; 
Wilson  V.  Rusk,  103  N.  W.  204; 
Kepler  v.  Larson,  131  Iowa,  438, 
108  N.  W.  1033,  7  L.R.A. (N.S.) 
1109;  Ward  v.  Butler,  239  III.  462, 
88  N.  E.  189;  Bails  v.  Davis,  241 
111.  536,  89  N.  E.  706;  Fountain 
County  Coal  etc.  Co.  v.  Beckleheim- 
er,  102  Ind.  76,  1  N.  E.  202,  52  Am. 
Rep.  465;  Taney  v.  Fahnley,  126 
Ind.  88,  25  N.  E.  882;  Dawson  v. 
Quinnerly,  118  N.  C.  188,  24  S.  E. 


483;  Marsh  v.  Griffin,  136  N.  C. 
336,  48  S.  E.  735;  Jones  v.  Rags- 
dale,  141  N.  C.  200,  53  S.  E.  842; 
Kennedy  v.  Colelough,  67  S.  C.  118, 
45  S.  E.  139;  Davenport  v.  Es- 
kew,  69  S.  C.  292,  48  S.  E.  223,  104 
Am.  St.  Rep.  798;  Polk  v.  Paris, 
9  Yerg.  (Tenn.)  209,  30  Am.  Dec. 
400;  Hopkins  v.  Hopkins,  (Tex. 
Civ.  App.)  114  S.  W.  673.  See, 
also,  Teague  v.  Sowder,  121  Tenn. 
132,  114  S.  W.  484;  Fullagar  v. 
Stockdale,  138  Mich.  363,  101  N. 
W.  576;  Edins  v.  Murphree,  142 
Ala.  617,  38  So.  639. 

1  Duckett  V.  Bubler,  67  S.  C  130, 
45  S.  E.  137. 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1549 

ticularly  those  who  were  to  take  after  the  death  of  the  grantee 
named,  and  that  the  word  "heirs"  should  be  deemed  one  of  pur- 
chase.^ Likewise,  the  word  "heirs"  was  deemed  to  mean 
"children"  where  the  deed  conveyed  the  land  to  certain  per- 
sons, their  heirs  and  assigns,  and  provided,  "meaning  and  in- 
tending by  this  conveyance  to  convey  to  my  said  children  the 
use  and  control  of  said  real  estate  during  their  natural  lives, 
and  at  their  death  to  go  to  their  children,  should  they  die 
without  issue  to  their  legal  representatives,  to  have  and  to  hold 
the  same  together  with  all  and  singular  the  appurtenances  and 
privileges  thereunto  belonging  or  in  any  wise  appertaining, 
and  all  the  estate,  right,  title,  interest,  and  claim  whatsoever  of 
the  said  party  of  the  first  part,  either  in  law  or  equity,  to  the 
only  proper  use,  benefit  and  behoof  of  the  said  party  of  the 
second  part,  their  heirs  and  assigns  forever."  '  It  was  contend- 
ed that  this  clause  was  a  memorandum  and  could  have  no  great- 
er effect  than  was  given  to  a  habendum  clause,  of  which  it  is  a 
part.  But  the  court  answered :  "Why  should  it  not  be  con- 
sidered a  part  of  the  deed?  And  why  say  it  is  a  pait  of  the 
habendum  clause?  It  does  not  appear  to  be  a  part  of  the  deed. 
It  is  in  no  way  connected  with  the  habendum  except  that  it 
immediately  precedes  it.  It  is  a  separate,  independent  state- 
ment of  the  grantor  from  which  it  clearly  appears  that  by  the 
use  of  the  word  "heirs"  he  meant  children  and  serves  no  other 
purpose."  *  If  a  donor  in  a  deed  of  gift  uses  the  words  "heirs" 
and  "children"  in  different  parts  of  the  conveyance,  it  must  be 
presumed  that  he  knew  the  difference  in  their  legal  significa- 
tion.^ Where  a  deed  is  made  to  a  person  and  "then"  to  his 
heirs,  it  appears  that  the  grantor  employed  the  word  "heirs" 
with  its  restricted  meaning.^     In  case  where  a  deed  conveyed 

2  Hodges    V.    Fleetwood,    102    N.  *  Kay  v.   Connor,  8  Humph.  624, 
C.  122,  9  S.  E.  640.  49  Am.  Dec.  690. 

3  Griswold  v.  Hicks,  132  HI.  494,  ^  Furman  v.  White,   14  B.  Mon. 
24  N.  E.  63,  22  Am.  St.  Rep.  549.  560. 

4  Griswold  V.  Hicks,  132  111.  494, 
24  N.  E.  63,  22  Am.  St  Rep.  549. 


1550  THE    LAW    OF   DEEDS.  [CHAP.    XXV. 

property  to  a  trustee  in  trust  for  a  woman  for  life  with  the  pro- 
vision that  the  property  should  at  her  death  belong  "of  right  in 
fee  simple  to  the  lineal  heirs"  of  the  tenant  for  life  forever, 
the  court  considered  that  the  words  "in  fee  simple  forever" 
qualified  the  limitation  to  the  lineal  heirs  so  that  an  indefinite 
line  of  descent  was  not  provided,  and  hence  a  conditional  estate 
in  fee  was  vested  in  the  first  taker  of  the  estate^  If  by  express 
language  the  grantor  declares  that  certain  persons  shall  take  as 
purchasers  and  not  by  inheritance,  the  deed  will  have  that 
effect.*  Where  the  deed  conveys  land  in  trust  for  the  use  of  a 
married  woman  providing  that  upon  her  death  the  trustee  shall 
convey  the  property  to  such  person  as  she  by  her  will  shall 
direct,  and  in  default  of  such  direction  shall  convey  to  her  heirs 
at  law  or  next  of  kin,  the  married  woman  obtains  only  a  life 
estate.^  If  a  trust  deed  made  for  the  benefit  of  the  grantor's 
wife  for  her  life  and  then  to  the  heirs  of  her  body  authorizes 
the  trustees  to  sell  the  land  conveyed  and  reinvest  the  proceeds 
of  sale  when  they  consider  it  best  for  the  interests  of  the  wife 
and  children,  the  word  "children"  is  to  be  considered  as  show- 
ing that  the  words  "heirs  of  the  body"  were  employed  by  the 
grantor  as  words  of  purchase.^  In  California  where  the  rule 
in  Shelley's  case  has  been  abrogated  by  statute,  a  grantor  exe- 
cuted a  deed  purporting  to  "give,  grant,  alien  and  confirm  unto 
the  said  party  of  the  second  part  and  to  his  heirs  (and  assigns 
forever),  all  those  certain  lots  ...  to  have  and  to  hold, 
all  and  singular,  the  said  premises,  unto  the  said  party  of  the 
second  part  (heirs  and  assigns  forever)  for  and  during  his 
natural  life,  and  to  the  issue  and  heirs  of  the  body  of  the  said 
party  of  the  second  part."  The  deed  was  upon  a  printed  form 
and  the  words  placed  in  parenthesis  were  erased  and  the  words 

'Clark   V.   Neves,   76   S.   C.   484,  15  S.  E.  339.     See,  also,  where  the 

57  S.  E.  614,  12  L.R.A.(N.S.)  298.  word  "heirs"  with  qualifying  words 

8  Taylor  v.  Cleary,  29  Gratt.  448.  has  been  construed  as  meaning  chil- 

SMartling  v.   Martling,   55   N.  J.  dren :     Blake  v.  Stone,  27  Vt.  475; 

Eq.  771,  39  Atl.  203.  Twelve   v.    Nevill,    39   Ala.    175. 

1  Carrigan  v.  Drake,  36  S.  C.  354, 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1551 

printed  in  italics  above  were  inserted,  in  writing.  The  question 
was  whether  the  deed  passed  a  fee  or  a  life  estate.  The  court 
admitted  at  the  common  law,  by  the  rule  in  Shelley's  case,  the 
conveyance  would  have  passed  the  grantee  an  estate  in  fee  tail 
and  declared  that  it  would  have  received  the  same  construction 
had  it  been  executed  prior  to  the  adoption  of  the  civil  code.*^ 
But  in  view  of  the  abrogation  of  the  rule  in  Shelley's  case, 
the  court  held  that  a  life  estate  passed  only  to  the  immediate 
grantee,  saying,  by  Mr.  Justice  Harrison,  who  delivered  the 
opinion  of  the  court:  "Taking  into  consideration  the  whole 
of  the  instrument  under  discussion,  it  is  clear  that  it  was  the 
intention  of  the  grantor  that  the  habendum  should  operate 
as  a  proviso  or  limitation  to  the  granting  clause,  and  control  it 
to  the  extent  of  limiting  the  estate  conveyed  to  the  plaintiff 
to  a  life  estate,  with  a  remainder  to  the  issue  and  heirs  of  his 
body.  The  use  of  the  word  'heirs'  in  the  granting  clause  creates 
no  repugnance  between  that  clause  and  the  habendum  since  the 
same  estate  would  pass  to  the  plaintiff  whether  this  estate  were 
inserted  or  omitted;^  and  the  subsequent  limitation  in  the 
habendum  clause  shows  that  the  grantor  did  not  intend  by  its 
use  to  create  an  estate  in  fee  in  the  plaintiff. 


"  i 


§  846b.  Illustrations.— Where  a  will  devising  certain 
land  declares  that :  "The  said  lands  heretofore  given  by  me 
to  my  daughter  Catharine  are  given  for  and  during  her  natural 
life;  and  after  her  decease  I  do  give  and  devise  the  said  lands 
to  such  person  or  persons  as  shall  be  her  heirs  or  heirs  of  land 
held  by  her  in  fee  simple,"  the  court  said :  "We  are  of  the 
opinion  that  the  testator  used  the  words  *heir  or  heirs'  as  desig- 
natio  personarum  who  should  take  the  remainder;  that  those 
persons  did  not  take  by  descent  as  heirs  of  Catharine,  but  by 

2^  Citing    Non-is    v.    Hensley,    27  *  Bartnctt    v.    Bartnett,    104    Cal. 

Cal.   439;    Estate   of   Utz.   43    Cal.  298,  37  Pac.  1049,  citing  Henderson 

200.  V.  Mack,  82  Ky.  379. 

-viiting  Civil  Code,  §   1072 


1552  THE   LAW   OF   DEEDS.  [CHAP.    XXV. 

purchase  from  the  testator ;  that  the  rule  in  Shelley's  case  does 
not  apply,  and  that  Catharine  took  an  estate  for  life  only."  ' 
A  deed  was  made  by  James  T.  Ecton  and  Alice  Ecton,  his 
wife,  conveying  to  "Mrs.  T.  N.  Sidwell,  wife  of  R.  J.  Sidwell," 
certain  land  "to  have  and  to  hold  unto  the  said  Mrs.  T.  N.  Sid- 
well, with  its  appurtenances  thereunto  belonging,  free  from  any 
claim  or  debt  of  her  husband,  forever  in  fee  simple,  with  a 
covenant  of  general  warranty,  provided,  however,  that  should 
the  said  Mrs.  T.  N.  Sidwell  die  without  heir  or  heirs,  then,  in 
that  event,  the  title  to  the  above  described  and  conveyed  land, 
with  improvements  thereon,  to  vest  in  her  husband,  R.  J.  Sid- 
well, should  he  be  living;  should  said  R.  J.  Sidwell  be  dead, 
then  a  share  of  the  land  v^^ith  improvements  thereon,  to  the 
amount  of  $1,000,  to  vest  in  the  legal  heirs  of  Mrs.  T.  N.  Sid- 
well, the  remainder  of  the  said  property  to  vest  in  the  next 
legal  heirs  of  said  R.  J.  Sidwell."  The  court  held  that  the  first 
taker  acquired  a  conditional  fee,  with  an  absolute  fee  to  her 
husband  in  case  of  her  death  without  heirs,  and  that  the  whole 
estate  might  be  conveyed  by  their  deed,  as  the  words  "the  next 
legal  heirs"  were  to  be  considered  not  as  words  of  purchase 
but  as  words  of  inheritance.^  Where  a  will  contained  a  devise 
made  to  a  person  for  life,  and  after  his  death  to  the  heirs  of  his 
body  begotten  in  lawful  wedlock  and  none  others,  the  court  '^1 

held  that  the  word  "heirs"  was  to  be  construed  as  meaning 
"children,"  and,  therefore,  a  life  estate  only  passed  to  the  de- 
visee.''' If  the  grantor  convey  property  to  a  woman  for  her 
life,  with  remainder  over  to  the  issue  of  her  body,  born  alive, 

5  Peer  v.   Hennion,   11  N.   J.   L.  428,  115  S.  W.  204,  29  L.R.A.(N.3.) 

693,    76  Atl.  1084,  29  L.R.A.(N.S.)  961. 

945.     See,  also,  Westcott  v.  Meek-  '  Millett   v.    Ford,    109   Ind.    159, 

er,    (Iowa)     122    N.    W.    964,    29  8  N.   E.  917.     See,  also,   Pierce  v. 

L.R.A.(N.S.)    947;    Hall   v.    Grad-  Hubbard,   152  Pa.   18,  25   Atl.  231, 

wohl,  (Md.)  n  Atl.  480,  29  L.R.A.  holding    that    only    a    life    estate 

(N.S.)  954;  Kemp  v.  Reinhard,  228  passed   to  the   first   taker    under   a 

Pa.    143,    n    Atl.    436,    29    L.R.A.  clause  in  a  will  that  in  the  case  of 

(N.S.)   958.  the  death  of  the  life  tenant  "with- 

*  Hamelton    v.    Sidwell,    131    Ky.  out  issue  or  issues  of  her  children, 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION. 


1553 


and  if  the  grantee  should  die  without  issue  of  her  body,  born 
ahve,  the  remainder  should  pass  to  another  person  mentioned 
in  the  conveyance,  the  word  "issue"  is  considered  one  of  pur- 
chase limiting  the  title  of  the  grantee  to  a  life  estate.' 

§  846c.  "Heirs"  construed  as  "children"  to  effectuate 
intention. — By  those  not  familiar  with  the  import  of  legal 
language,  the  word  "heirs"  is  frequently  used  as  though  is  was 
synonomous  with  the  word  "children."  As  the  courts  strive  to 
give  effect  to  the  intention  of  the  grantor,  in  order  to  make 
his  conveyance  effective,  whether  this  can  be  accomplished  in 
accordance  with  legal  rules  of  construction,  they  will  construe 
the  word  "heirs"  as  meaning  "children,"  if  from  the  language 
of  the  conveyance  and  the  circumstances  surrounding  the  trans- 
action, it  is  evident  in  the  mind  of  the  grantor  this  word 
had  that  signification.®  As  said  in  a  recent  case:  "The 
weight  of  authority  and  the  better  reason  is  in  favor  of  the  rule 


then    reversible    to    the    testator's 
right  consanguinary  heirs." 

*  Mcllhinney  v.  Mcllhinney,  137 
Ind.  411,  37  N.  E.  147,  45  Am.  St. 
Rep.  186,  24  L.R.A.  489.  See  for 
other  cases  in  which  deeds  and 
wills  have  been  construed :  Taylor 
V.  Taylor,  63  Pa.  481,  3  Am.  Rep. 
565;  Helm  v.  Frisbie,  59  Ind.  526; 
O'Bryne  v.  Feeley,  61  Ga.  11; 
Kleppner  v.  Laverty,  70  Pa.  70; 
Whitworth  v.  Stuckey,  1  Rich.  Eq. 
404;  Nes  v.  Ramsay,  155  Pa.  628, 
2  Atl.  770;  Leightner  v.  Leightner, 
87  Pa.  144;  Craig  v.  Rowland.  10 
App.  D.  C  402;  Parkhurst  v.  Har- 
rower,  142  Pa.  432,  21  Atl.  826,  24 
Am.  St.  Rep.  507;  Shalters  v.  Ladd, 
141  Pa.  349.  21  Atl.  596;  Shalters 
V.  Ladd,  163  Pa.  509,  30  Atl.  283; 
Stagman  v.  Paxson,  221  Pa.  446, 
70  Atl.  803;  Carroll  v.  Burns,  108 
Deeds,  Vol.  II.— 98 


Pa.  ZZ(i;  Hodges  v.  Fleetwood,  102 
N.  C.  122,  9  S.  E.  640;  Benson  v. 
Linthicum,  75  Md.  141,  23  AtL  133. 
•  Heath  v.  Hewitt,  127  N.  Y.  166, 
13  L.R.A.  46,  24  Am.  St.  Rep.  438, 
27  N.  E.  959;  Findley  v.  Hill,  133 
Ala.  229,  32  So.  497 ;  Wikle  v.  Mc- 
Graw,  91  Ala.  631,  8  So.  341;  Tuck- 
er V.  Tucker,  78  Ky.  503;  Tinder 
V.  Tinder,  131  Ind.  386,  30  N.  E. 
1077;  Huss  v.  Stephens,  51  Pa.  282; 
Brasington  v.  Hanson,  149  Pa.  289, 
24  Atl.  344;  Read  v.  Fite,  8  Humph. 
328;  Seymour  v.  Bowles,  172  111. 
521,  50  N.  E.  122;  Umfreville  v. 
Keeler,  1  Thomp.  &  C.  486;  Lee  v. 
Tucker,  56  Ga.  9;  Tharp  v.  Yar- 
brough,  79  Ga.  382,  11  Am.  St.  439, 
4  S.  E.  915;  Roberson  v.  Wampler, 
104  Va.  380,  1  L.R.A.(N.S.)  318; 
Wood  v.  Taylor,  9  Misc.  640,  30 
N.  Y.  Supp.  43a. 


1554  THE   LAW    OF   DEEDS.  [CHAP.    XXV. 

that  in  deeds,  as  well  as  in  wills,  the  intention  of  the  maker  of 
the  instrument,  as  gathered  from  all  parts,  must  prevail."  * 
The  word  "heirs"  is  frequently  used  and  construed  as  descrip- 
tive of  a  class  whose  title  is  directly  derived  from  the  grantor.* 
As  a  general  proposition  a  deed  conveying  land  to  the  heirs  of 
a  person  still  living,  without  mentioning  their  names,  is  void 
for  uncertainty.'  In  the  case  of  a  will,  where  a  devise  was 
made  "to  my  youngest  daughter  M.,  and  to  her  children," 
the  court  held  that  the  children  of  the  daughter  became  devisees 
and  that  by  this  language  an  estate  in  common  passed  to  all.* 
A  limitation  after  the  termination  of  the  life  estate  in  the 
grantees  to  their  heirs  after  them  forever,  provided  that  the 
life  tenant  leaves  any  children,  otherwise  over,  manifests  an  in- 
tention on  the  grantor's  part  to  use  the  word  "heirs"  in  the 
sense  of  children.®  In  a  case  in  Iowa  the  deed  conveyed  the 
land  to  the  grantee  for  her  natural  life,  and  to  the  heirs  of  her 
body  begotten  in  fee  simple,  to  take  effect  at  the  death  of  the 
mother;  the  court  held  that  the  conveyance  transferred  a  life 
estate  with  remainder  over  to  specific  persons.*  Mr.  Fearne 
states  that  if  heirs  as  heirs  are  meant,  there  must  be  a  concur- 
rence of  two  things :  "The  one  is  that  the  person  to  claim  the 
inheritance  after  the  ancestor  is  to  claim  as  heir  eo  nominee, 
and  under  that  description,  whoever  such  person  may  be,  and 
the  other  that  the  effect  of  the  limitation  is  not  confined  to 
the  person  so  claiming  or  his  representatives,  but  directed  equal- 
ly through  all  other  persons  successively  answering  the  same — 
relative  description  of  heirship,  general  or  special,  to  the  an- 
cestor referred  to,  and  entitling  them  eo  nominee,  or  in  that 

iRoberson  v.  Wampler,   104  Va.  the   time   of   the    grant."     Hall   v. 

380,  51   S.  E.  835,   1  L.R.A.(N.S.)  Leonard,   1   Pick.  27. 

318.  *  Estate  of  Utz,  43  Cal.  200. 

2  Tinder  v.  Tinder,  131  Ind.  386,  6  Criswell  v.  Grumbling,  107  Pa. 
30  N.  E.  1077.  448. 

3  Sec.    184   ante:     "No   case    has  ^Ault    v.    Hillyard,    115    N.    W. 
been  found  to  support  a  grant  to  1030. 

a  man's  heirs,   he  being  living  at 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1555 

character  only."*^  In  a  case  in  Texas,  where  in  a  deed  the  words 
"heirs,"  "children"  and  "issue"  were  used  indiscriminately, 
the  court  said :  "The  legal  effect  of  the  deed  depends  upon  the 
meaning  of  the  grantor  in  using  those  words.  If  they  meant 
heirs  in  the  legal  sense,  that  is,  those  appointed  by  law  to  take 
the  inheritance  from  the  first  taker  in  regular  succession  from 
generation  to  generation,  the  rule  in  Shelly's  case  would  apply 
and  vest  the  fee  in  him,  for  no  mere  declaration  of  an  inten- 
tion to  limit  the  estate  to  one  for  life  could  prevail  over  the 
effect  given  by  law  to  the  use,  in  its  legal  sense,  of  the  technical 
word  'heirs.'  On  the  other  hand  if  that  word  was  used  as  it 
is  often  used,  by  unskilled  persons,  only  to  designate  children, 
or  the  issue  who  would  be  living  at  the  death  of  the  first  taker, 
to  take  by  purchase,  as  remaindermen,  it  expresses  a  perfectly 
lawful  intent  to  which  effect  must  be  given."  * 

§  846d.  Illustrations. — The  words  "heirs"  and  "issue" 
are  also  considered  as  having  been  used  in  the  sense  of  "chil- 
dren" where  a  marriage  contract  states  that  its  object  is  to 
secure  the  property  of  the  woman  for  her  use  and  that  of  her 
heirs,  and  provides  that,  in  the  event  the  marriage  shall  result 
in  issue,  the  property  shall  descend  to  such  child  or  children, 
share  and  share  alike,  according  to  the  law  of  the  state."  So 
the  word  "heirs"  is  held  to  be  equivalent  to  "children"  where 
the  limitation  after  the  life  estate  is  "to  the  heirs  of  her  body 
begotten,  in  fee  simple  to  take  effect  as  to  said  heirs  at  the 
death"  of  the  tenant  for  life.^  A  deed  purported  to  be  made 
between  the  grantor  as  the  party  of  the  first  part  and  "the  heirs 
of  Warren  Heath,  of  the  same  place,  to  be  equally  divided 

''Fearne's  Contingent  Remain-  Thorne,  95  N.  C.  362;  Ebey  v.  Ad- 
ders, 197.  ams,    135    III.    80,    10   L.R.A.    162; 

»  Hancock  v.  Butler,  21  Tex.  817.  Nes  v.  Ramsey,  26  Atl.  770. 

See,  also,  as  bearing  on  the  qnes-  ^  Aydlett  v.    Swope,    (Tenn.)    17 

tion   under   consideration :     Burges  S.  W.  209. 

V.  Thompson,  13  R.  I.  712;  Heister  lAult  v.  Hillyard,  138  Iowa,  239, 

V.  Yerger,  116  Pa.  St.  445.;  Mills  v.  115  N.  W.  1030. 


1556 


THE    LAW   OF   DEEDS. 


[CHAP.    XXV. 


among  them,  of  the  second  part."  It  was  contended  that  as 
Warren  Heath  was  living  at  the  time  when  the  deed  was  exe- 
cuted, the  deed  was  void  for  uncertainty,  as  there  were  no  per- 
sons in  being  who  could  take  under  that  description,  but  the 
court  did  not  agree  with  this  contention,  holding  that  the  word 
"heirs"  should  be  construed  as  meaning  children.^  So,  where 
land  was  conveyed  to  "the  heirs"  of  a  person  living  at  the  time, 
the  court  was  of  the  opinion  that  the  word  should  not  be  taken 
in  its  technical  sense,  but  should  be  construed  as  meaning  chil- 
dren so  that  the  deed  took  immediate  effect.'  If  a  deed  grants 
land  to  A,  and  the  heirs  of  B  by  A,  his  wife,  the  title  vests  im- 
mediately in  A  and  the  children  then  living  of  A  and  B,  as  the 
word  "heirs"  is  to  be  taken  as  meaning  the  living  children  of 
the  persons  mentioned  in  the  deed,  rather  than  an  indefinite 
line  of  descendants.* 

§  846e.  Limitation  to  children. — The  rule  in  Shelley's 
case  is  a  technical  rule  of  real  property  applicable  only  when 
the  word  "heirs"  or  a  term  of  similar  import  is  used.  But 
when  the  remainder,  after  the  termination  of  the  life  estate,  is 
to  pass  to  the  children  of  the  life  tenant,  the  rule  has  no  ap- 
plication, as  the  word  "children"  is  one  of  purchase.^    Where 


2  Heath  v.  Hewitt,  127  N.  Y. 
166,  24  Am.  St.  Rep.  438,  13  L.R.A. 
436. 

8  Grimes  v.  Orrand,  49  Tenn.  (2 
Heisk.)    298. 

4  Tinder  v.  Tinder,  131  Ind.  381, 
30  N.  E.  1077.  That  the  word 
heirs  may  be  construed  as  mean- 
ing children,  see  Fullgar  v.  Stock- 
dale.  138  Mich.  363,  101  N.  W.  576; 
iMndley  v.  Hill,  133  Ala.  229,  32  So. 
497;  Tucker  v.  Tucker,  78  Ky.  403; 
Cornelius  v.  Smith,  55  Mo.  428; 
Boone  v.  Baird,  91  Miss.  420,  44 
So.  929;  Smith  v.  Proctor,  139  N. 
C.  314,  51  S.  E.  889,  2  L.R.A. (N.S.) 


172;  Rembert  v.  Evans,  68  S.  E. 
659;  Hickman  v.  Quinn,  6 
Yerg.  (Tenn.)  96;  Read  v.  Fite, 
8  Humph.  328;  Hopkins  v.  Hop- 
kins, (Tex.)  122  S.  W.  15.  The 
words  "present  heirs"  are  a  de- 
scription of  the  persons  to  take : 
Fountain  Coal  Co.  v.  Beckleheimer, 
102  Ind.  76,  1  N.  E.  202,  52  Am. 
Rep.  645. 

5  Brown  v.  Brown,  125  Iowa, 
218,  101  N.  W.  81,  67  L.R.A.  629; 
Bonner  v.  Bonner,  28  Ind.  App. 
147,  62  N.  E.  497;  Ridgeway  v. 
Lampshear,  99  Ind.  251 ;  Weekin- 
son  V.  Boyd,  136  N.  C  46,  48  S.  E. 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION. 


1557 


a  deed  is  made  to  a  person  and  after  his  death  to  the 
then  Hving  children  of  his  body,  he  takes  a  Hfe  estate  only.^ 
In  the  construction  of  a  will  where  property  was  devised  to 
a  person  and  the  will  declared  that  after  the  devisee's  death 
''I  give  and  devise  said  house  and  lot  of  ground,  as  above  de- 
scribed, unto  his  children  to  have  and  to  hold  the  above  said 
described  property  with  appurtenances  unto  his  children,  their 
heirs  and  assigns  forever,"  the  court  said :  "  'Children'  is  pri- 
marily a  word  of  purchase,  and  is  never  to  be  construed  other- 
wise except  where  the  testator  has  clearly  used  it  as  a  word  of 
limitation."  "^  While  the  word  "children"  may  be  construed  as 
meaning  "heirs,"  where  it  is  clear  that  such  was  the  inten- 
tion of  the  testator,®  yet  it  is  never  construed  as  a  word  of 
limitation  except  when  the  clear  intention  of  the  grantor 
or  testator  cannot  be  effectuated  otherwise.^    The  word  "heirs" 


516;  Mannerback's  Estate,  133  Pa. 
342,  19  Atl.  552 ;  Hoover  v.  Strauss, 
215  Pa.  130,  64  Atl.  333. 

6  Jackson  v.  Jackson,  127  Ind.  346, 
26  N.  E.  897. 

7  Hoover  v.  Strauss,  215  Pa.  130, 
64  Atl.  333.  See,  also,  Klein's  Ap- 
peal, 125  Pa.  480,  17  Atl.  463. 

8  Hastings  v.  Ebgle,  217  Pa.  419, 
66  Atl.  761. 

9  May  v.  Ritchie,  5  Ala.  602.  Its 
ordinary  construction  is  as  a  word 
of  purchase :  Brown  v.  Brown,  125 
Iowa,  218,  101  N.  W.  81,  67  L.R.A. 
629;  Moreland  v.  Hunley,  37  Ga. 
642;  Nelson  v.  Davis,  35  Ind.  474: 
Brumley  v.  Brumley,  89  S.  W.  182, 
28  Ky.  L.  R.  231;  Bowe  v.  Rich- 
mond, 109  S.  W.  359,  33  Ky.  L.  R. 
173 ;  Goodridge  v.  Goodridge,  91 
Ky.  507,  16  S.  W.  270,  13  Ky.  L.  R. 
70;  Bodine  v.  Arthur,  91  Ky.  S3, 
14  S.  W.  904,  12  Ky.  L.  R.  650,  34 
Am.  St.  Rep.  162;  Davis  v.  Harden, 
80  Ky.  672;  Kinney  v.  Mathews,  69 


Mo.  520;  Williams  v.  Williams,  16 
Lea,  (Tenn.)  164;  Haywood  v. 
Moore,  2  Humph.  584;  Pales  v. 
Curruer,  55  N.  H.  392.  That  no 
title  passes  to  after  born  children 
where  the  deed  conveys  the  prop- 
erty to  a  certain  person  and  his 
children,  see  Heath  v.  Heath,  114 
N.  C.  547,  19  S.  E.  155;  Varner  v. 
Young,  56  Ala.  260;  Faloon  v. 
Simshauser,  130  111.  649,  22  N.  E. 
835;  Glass  v.  Glass,  71  Ind.  392; 
King  v.  Rea,  56  Ind.  1.  But  see 
Cessna  v.  Cessna,  4  Bush.  (Ky.) 
516.  If,  however,  the  children  take 
by  remainder  after  the  termination 
of  the  life  estate,  each  child  in  be- 
ing takes  and  so  does  each  child 
thereafter  born:  Coursey  v.  Da- 
vis, 46  Pa.  St.  25,  &4  Am.  Dec. 
519;  Hague  v.  Hague.  161  Pa.  St. 
643,  29  Atl.  261,  41  Am.  St.  Rep. 
900;  Adams  v.  Ross,  30  N.  J.  L. 


1558  THE    LAW    OF    DEEDS.  [CIIAP.    XXV. 

is  necessary  for  the  application  of  the  rule  in  Shelley's  case, 
but  "the  rule  does  not  apply  when  the  limitation  is  to  'chil- 
dren,' for  such  word  is  one  of  purchase."  ^  Where  a  deed 
contained  proper  words  of  grant  but  the  habendum  clause 
"to  have  and  to  hold  unto  the  said  A,  wife  of  B,  and  to 
her  children  by  him  begotten  forever,"  it  was  construed  as 
limiting  a  life  estate  to  A  with  remainder  to  her  children 
begotten  by  B.^** 

§  847.  Lawful  issue. — In  connection  with  the  rule  in 
Shelley's  case,  we  call  the  reader's  attention  to  a  peculiarly 
worded  deed  where  the  grant  was  to  a  person  "and  to  his  law- 
ful issue,  to  go  to  his  surviving  brother  or  brothers  and  to 
their  heirs  and  assigns."  The  liahendnm  clause  was  to  the 
grantee,  "and  to  his  lawful  issue,  to  the  only  proper  use  of  the 
said  grantee,  and  his  lawful  issue  (as  above  mentioned)  for- 
ever." The  deed  also  contained  covenants  of  seisin,  of  quiet 
enjoyment,  and  against  encumbrances,  which  were  each  with 
the  grantee,  "and  his  lawful  issue."  The  court  construed  the 
deed  as  giving  the  grantee  only  a  life  estate.^  The  reasoning 
by  which  the  court  came  to  this  conclusion  is  thus  stated  by 
Martin,  J :  "The  elementary  authorities  uniformly  hold  that 
the  word  'heirs'  is  indispensable  to  the  creation  by  deed  of  an 
estate  tail  or  fee  simple;  though  it  is  otherwise  in  respect  to 
a  will.  This  requirement  is  technical ;  but  it  has  always  been  a 
rule  of  property  in  this  State,  and  must  for  manifest  reasons 
be  upheld.  The  contingent  remainder  is  expressly  limited  to 
the  brothers  and  their  heirs.  And  it  is  plain  that  the  word 
'heirs,'  found  in  the  clause  giving  the  remainder,  cannot  by 
construction  be  held  to  limit  the  estate  granted,  as  is  claimed, 

505,    82    Am.    Dec.    7Z7 ;    Greer    v.  l'^  Bodine   v.   Arthur,   91    Ky.   53, 

Boone,     5    B.     Mon.     (Ky.)     554.  14  S.  W.  904,  12  Ky.  L.  R.  650,  34 

Graham     v.     Houghtalin,     30     N.  Am.  St.  Rep.  162. 

J.   L.  552.  2Ford   v.   Johnson,   41    Ohio    St 

1  Brown  v.  Brown,  125  Iowa,  218,  366. 
101  N.  W.  81,  67  L.R.A.  629. 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1559 

to  Cline's  issue.  Such  a  transposition  of  the  word  would  ab 
initio  frustrate  the  apt  words  of  the  grant  in  remainder;  for 
it  would  be  to  tack  a  remainder  to  an  unconditional  grant  in 
fee  simple.  And  it  will  also  be  noticed  that  the  word  'heirs' 
as  a  correlative  to  Cline  or  his  issue  is  not  found  in  the  ha- 
bendum or  warranty  clauses,  nor  elsewhere  in  the  deed.  And 
it  is  proper  to  add,  it  is  not  imported  by  reference.  Hence,  the 
estate  granted  is  not  by  the  words  of  grant,  or  by  anything 
within  the  four  corners,  limited  to  Cline  and  his  heirs,  nor 
to  his  issue  and  their  heirs.  But  it  is  claimed  that  the  particu- 
lar estate  was  not  alone  for  Cline's  life,  but  was  also  for  the 
respective  lives  of  the  survivors  of  his  four  children  who 
were  living  at  the  date  of  the  deed,  in  September,  1824.  As 
to  this,  as  well  as  to  a  suggestion  that  might  be  made  of  a 
fee  by  implication  springing  from  the  survival  of  issue,  it  is 
sufficient  to  say  that,  by  the  obvious  intent  and  plan  of  the 
instrument,  the  particular  estate  was  ended  by  the  death  of 
Cline,  and  the  fee  thereupon  reverted,  if  it  did  not  pass  in 
remainder  to  the  brothers.  Consequently  the  estate  granted 
was  a  life  estate  to  Cline  for  his  own  life.  But  the  result  would 
be  the  same  if  the  construction  were  to  him  and  his  four  chil- 
dren as  tenants  in  common;  because,  even  if  the  words  of 
grant  are  not  inconsistent  with  a  right  of  survivorship,  it  is 
certain  that  the  right  is  not  given  expressly,  nor,  as  we  have 
seen,  by  implication."  '  In  a  case  in  Arkansas,  a  deed  was 
made  to  a  person  "and  the  heirs  of  her  body  that  now  are  or 
may  hereafter  be  born."  The  deed  provided  that  neither  the 
grantee  nor  "her  husband,  nor  either  of  her  children  that  now 
are  or  may  hereafter  be  born,  nor  any  other  person  for  them, 
shall  have  any  power  to  sell  said  land  during  my  natural  life, 
or  until  the  youngest  child"  of  the  grantee,  "now  or  hereafter 
born,  shall  arrive  at  full  age."  The  grantee,  the  court  de- 
cided, took  a  life  estate  and  the  remainder  in  fee  upon  her 
death  became  vested  in  her  children  that  had  survived  her,  and 

•Ford  V.  Johnson,  41  Ohio  St.  366. 


1560 


THE    LAW    OF    DEEDS. 


[chap.    XXV. 


in  the  issue  of  those  who  had  died,  during  her  h'fetime,  per 
stirpes.  During  the  Hfe  of  the  mother  the  children  took  noth- 
ing by  the  deed,  nor  was  the  interest  of  the  children  such  dur- 
ing her  life  that  it  could  be  transmitted  to  her  by  their  death.* 

§  848.  Construction  against  grantor. — Where  the  lan- 
guage of  the  deed  will  admit  of  two  constructions,  the  one 
less  favorable  to  the  grantor  is  to  be  adopted."*  The  rule  is 
not  modified  by  the  fact  that  the  deed  was  given  under  an 
award  requiring  it.^     "It  is  an  old  principle  of  law  that  ex- 


4  Horsley  v.  Hilburn,  44  Ark.  458. 

6  Vance  v.  Fore,  24  Cal.  435 ;  Ha- 
ger  V.  Spect,  52  Cal.  579;  Dunn  v. 
English,  23  N.  J.  L.  126;  Adams  v. 
Frothingham,  3  Mass.  352,  3  Am. 
Dec.  151;  Mills  v.  Catlin,  22  Vt.  98; 
Watson  V.  Boylston,  5  Mass.  411 ; 
Middleton  v.  Pritchard,  3  Scam. 
(4  111.)  510,  38  Am.  Dec.  112; 
Cocheco  Mfg.  Co.  v.  Whittier,  10 
N.  H.  305;  Bnshnell  v.  Proprietors 
etc  31  Conn.  150;  Winslow  v.  Pat- 
ten, 34  Me.  25;  Carrington  v.  God- 
din,  13  Gratt.  587;  Charles  River 
Bridge  v.  Warren  Bridge,  11  Peters, 
589;  City  of  Alton  v.  Illinois  Trans- 
portation Co.,  12  111.  38,  52  Am. 
Dec.  479;  Pray  v.  Briggs,  2  Mill 
Const.,  98;  Rung  v.  Shoneberger,  2 
Watts,  23 ;  26  Am.  Dec.  95 ;  Foy  v. 
Neal,  2  Strob.  156;  Dodge  v.  Wal- 
ley,  22  Cal.  224,  83  Am.  Dec.  61; 
Salmon  v.  Wilson,  41  Cal.  595 ; 
Piper  V.  True,  36  Cal.  606;  Pike  v. 
Munroe,  36  Me.  309,  58  Am.  Dec. 
751.  And  see  Sanborn  v.  Clough, 
40  N.  H.  330 ;  Marshall  v.  Niles,  8 
Conn.  369;  Clough  v.  Bowman,  15 
N.  H.  504;  Carroll  v.  Norwood,  5 
Hr.  &  J.  155 ;  Johnson  v.  McMullan, 
1  Strob.  143 ;  Jackson  v.  Hudson, 
3  Johns.  375,  3  Am.  Dec.  500;  Mel- 


vin  V.  Proprietors  of  Locks  etc.  5 
Met.  15,  38  Am.  Dec.  384;  Budd  v. 
Brooke,  3  Gill.  19S,,  43  Am.  Dec. 
321 ;  Glen  Rose  Collegiate  Inst.  v. 
Glen  Rose  I.  S.  Dist.  (Tex.  Civ. 
App.)    125  S.  W.  379. 

8  Bushnell  v.  Proprietors  etc.  31 
Conn.  150.  In  Dunn  v.  English,  23 
N.  J.  L.  126,  the  deed  conveyed  to 
the  grantee  two  small  parcels  of 
land,  "together,  also,  with  the  privi- 
lege and  common  use  of  the  wagon 
alley  between  the  houses  of  the  said 
English  and  Branin,  and  through 
the  yard  of  the  said  English  to  the 
back  stable  lot  of  the  said  Branin, 
and  also  the  further  use  and  privi- 
lege of  a  two  and  a  half  feet  alley, 
or  passageway,  along  and  around 
the  Treaton  bank  lot,  to  and  from 
the  dwelling-house  lot  of  the  said 
Branin  to  the  stable  lot  of  the  said 
Branin.  But  if  at  any  time  here- 
after the  said  dwelling-house  lot, 
and  the  said  stable  lot  of  the  said 
Branin,  above  mentioned,  shall  be 
owned  by  different  persons,  then 
and  in  that  case  the  privilege  and 
use  of  the  said  two  and  a  half  feet 
alley  or  passageway,  and  also  the 
said  wagonway  to  the  said  stable 
lot,  shall  cease  and  become  null  and 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION. 


1561 


ceptions  in  a  deed  and  every  uncertainty  are  to  be  taken  fav- 
orably for  the  grantee."  "^  But  this  rule  is  not  applicable  to 
any  case  but  one  of  strict  equivocation,  cases  where  the  lan- 
guage of  the  deed  is  susceptible  of  two  interpretations.'  And 
it  has  no  application  where  the  parties  claim  under  the  same 
deed;'  nor  to  grants  of  the  sovereign.*  But  a  construction 
should,  if  possible,  be  adopted  that  will  render  all  parts  of  the 
deed  operative.^  It  is  said  by  an  English  author:  "This  rule 
is  often  misunderstood;  it  does  not  mean  that  the  words  are 


void,  and  to  revert  again  to  the  said 
Joshua  English,  his  heirs  and  as- 
signs. But  the  privilege  of  the 
wagonway  between  the  dwellings 
to  remain  with  the  front  house." 
The  court  stated  the  only  question 
to  be  the  extent  of  the  right  to  the 
use  of  the  alley.  In  the  language  of 
the  court :  'The  plaintiff  claims  the 
right  to  pass  through  the  alley  be- 
tween the  houses  to  a  gateway  lead- 
ing to  his  own  lot,  immediately 
in  the  rear  of  his  house.  The  de- 
fendant insists  that,  by  the  terms  of 
the  grant,  the  right  of  the  plaintiff 
is  limited  to  the  use  of  so  much  of 
the  alley  as  lies  immediately  be- 
tween the  houses ;  that  the  passage- 
way claimed  by  the  plaintiff  beyond 
the  line  of  the  rear  of  the  house  is 
consequently  extra  viam,  and  that 
he  is  entitled  to  no  damages  for  its 
obstruction."  The  court  held  that 
the  construction  put  upon  the  lan- 
guage of  the  instrument  by  the 
plaintiflF  was  the  true  one,  "be- 
cause a  grant  is  always  to  be  con- 
strued, in  cases  of  doubt,  most 
strongly  against  the  grantor,  and 
most  beneficially  for  the  grantee." 

'Jackson  v.  Gardner,  8  Johns. 
394,  406.  See  Grubb  v.  Grubb,  101 
Pa.  St.  IL 


8  Adams  v.  Warner,  23  Vt.  395, 
412;  Abbie  v.  Huntley,  56  Vt.  454, 
458. 

9  Coleman  v.  Beach,  97  N.  Y.  545. 
iWillion   V.   Berkley,   Plow.  243; 

Jackson  v.  Reeves,  3  Caines,  293. 
And  see  Stourbridge  Can.  Co.  v. 
Wheeley,  2  Barn.  &  Adol.  792; 
Leeds  &  Liverpool  Can.  Co.  v. 
Hustler,  1  Barn.  &  C.  424;  Blake- 
more  v.  Glamorganshire  Cnn.  Nav., 

1  Mylne  &  K.  154;  Parker  v.  Great 
Western  Ry.  Co.,  7  Man.  &  G.  253 ; 
Barrett    v.    Stockton    etc.    Ry.    Co., 

2  Man.  &  G.  134;  Priestly  v.  Foulds, 
2  Man.  &  G.  194;  Mohawk  Bridge 
Co.  V.  Utica  &  Sch.  R.  R.  Co.,  6 
Paige,  554. 

2  Waterman  v.  Andrews,  14  R.  I. 
589;  Watters  v.  Bredin,  70  Pa.  St. 
238;  Coleman  v.  Bush,  97  N.  Y. 
545.  See  Bent  v.  Rodgers,  137 
Mass.  192;  Presbrey  v.  Presbrey,  13 
Allen,  283;  Shultz  v.  Young,  3 
Ired.  385,  40  Am.  Dec.  413;  Haven 
V.  Dale,  18  Cal.  359.  In  Waterman 
v.  Andrews,  supra,  Matteson,  J.,  in 
dehvering  the  opinion  of  the  court, 
says :  "It  is  laid  down  as  a  rule  of 
construction  that  where  there  are 
two  clauses  in  a  deed  which  are  so 
repugnant  that  they  cannot  stand 
together,   the  former  is  to  prevail 


1562 


THE   LAW   OF   DEEDS. 


[CITAP.    XXV. 


to  be  twisted  out  of  their  proper  meanings,  but  only  that 
where  the  words  may  properly  bear  two  meanings,  and  where, 
after  we  have  appHed  evidence,  whether  extrinsic  or  intrinsic, 
admissible  under  the  foregoing  rules,  we  are  still  unable  to 
determine  in  which  of  these  meanings  they  were  used,  we  must 
take  them  in  the  meaning  most  disadvantageous  to  the  person 
who  uses  them,  unless  the  adoption  of  that  meaning  would 
work  wrong."  ^  Where  a  jury  is  convinced  of  a  spoliation, 
they  should  infer  everything  in  favor  of  the  deed  and  against 
the  spoiler.*  As  where  the  meaning  is  doubtful  deeds  are  con- 
strued most  strongly  in  favor  of  the  grantee,^  it  was  said 


over  the  latter,  unless  there  be  some 
special  reason  to  the  contrary : 
Plow.  541;  1  Inst.  lUb;  Shep. 
Touch.  88;  Broom's  Legal  Maxim's 
*580.  But  as  Judge  Metcalf  re- 
marks in  23  American  Jurist,  277, 
the  rule  has  very  little  operation  in 
modern  times,  a  reason  to  the  con- 
trary being  almost  always  found. 
Nowadays,  the  rules  of  construc- 
tion applied  in  cases  of  repugnancy 
give  effect  to  every  part  of  a  deed, 
when  consistent  with  the  rules  of 
law  and  the  intention  of  the  party. 
When  this  is  impossible,  the  part 
which  is  repugnant  to  the  intention 
is  rejected.  And  whenever  the  lan- 
guage used  is  susceptible  of  more 
than  one  interpretation,  the  courts 
will  look  at  the  circumstances  ex- 
isting at  the  time  of  the  transaction, 
such  as  the  situation  of  the  parties, 
the  subject  matter  of  the  convey- 
ance, the  acts  of  the  parties  con- 
temporaneous with  and  subsequent 
to  the  deed.  To  this  extent  extra- 
neous evidence  is  admissible  to  aid 
in  the  construction  of  written  con- 
tracts :  Wilson  v.  Troup,  2  Cowen, 
195,  14  Am.  Dec.  458;  Parkhurst 
V.  Smith,  Willes,  327,  332;  Bradley 


V.  The  Washington,  Alexandria  & 
Georgetown  Steam  Packet  Co.,  13 
Peters,  89,  100-103  ;Winnipiseogee 
Lake  Cotton  and  Woolen  Co.  v. 
Perley,  46  N.  H.  83,  101;  Bell  v. 
Woodward,  46  N.  H.  315,  331 :  Gib- 
son V.  Tyson,  S  Watts,  34,  41.  If, 
after  all,  the  interpretation  to  be 
given  to  the  deed  remains  doubtful, 
the  court  will  adopt  the  construc- 
tion which  is  most  favorable  to  the 
grantee,  because  it  is  the  fault  of 
the  grantor  that  he  has  left  the 
matter  in  doubt,  and  he  ought  not 
to  be  permitted  to  take  advantage 
of  a  difficulty  which  he  has  him- 
self created."  See  Gilbert  v. 
James,  86  N.  C.  244. 

2  Elphinstone,  Interpretation  of 
Deeds,  94. 

^Diehl  V.  Emig,  65  Pa.  St.  320. 

6  American  Unitarian  Assn.  v. 
Minot,  185  Mass.  589,  71  N.  E.  551 ; 
Simonds  v.  Wellington,  64  Mass. 
(10  Cush.)  316;  Morse  v.  Marshall, 
95  Mass.  (13  Allen)  291;  Salton- 
stall  V.  Proprietors  of  Boston 
Pier  etc.,  61  Mass.  (7  Cush.)  201; 
Cutler  V.  Tufts,  20  Mass.  (3  Pick.) 
276;  Adams  v.  Frothingham,  3 
Mass.  361,  3  Am.  Dec.  151;  Worth- 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1563 

by  Mr.  Justice  Denson,  that  if  two  conflicting  intentions 
are  expressed,  the  deed  should  be  construed  according  to  the 
well  recognized  rules  of  construction  and  that  "one  of  the 
cardinal  rules  is  that  deeds  of  conveyance  and  sale  founded 
upon  a  valuable  consideration  are  to  be  construed  most  strong- 
ly against  the  grantor  and  in  favor  of  the  grantee."  ^  If  there 
is  no  ambiguity,  the  construction  will  not  depend  upon  what 
the  parties  understood  as  to  its  terms.'  But  in  the  case  of 
an  ambiguity  in  the  description,  a  liberal  construction  will  be 
given  so  as  to  carry  out,  as  far  as  possible,  the  intention  of  the 
parties.^  While  the  intention  is  to  be  ascertained  from  all  the 
parts  of  the  deed  taken  as  a  whole,^  and  all  the  w^ords  are  to  be 
considered  in  ascertaining  the  intent,  still,  such  intent  cannot 
be  allowed  to  override  the  express  language  used  by  the  par- 
ties.^ In  all  cases,  however,  as  the  object  of  construction  is  to 
ascertain  the  intention  of  the  parties  to  the  deed  which  is  to  be 
secured  from  the  general  purpose  and  scope  in  the  light  of 
the  attendant  circumstances,^  a  positive  rule  of  law  must 
prevail  over  the  intent,  no  matter  how  clearly  it  may  be  mani- 
fest.^ Nor  can  the  effect  of  the  deed  be  restricted  by  attempt- 
ing to  show  that  rights  or  property  properly  embraced  in  its 

ington    V.    Hylyer,    4    Mass.    205 ;  549 ;  Lamb  v.  Medsker,  35  Ind.  App. 

Ashley    v     Pease,    35-  Mass.     (18  662,  74  N.   E.   1012;   Whetstone  v. 

Pick.)  275;  Chicago  &  A.  R.  Co.  v.  Hunt,  78  Ark.  230,  93  S.  W.  979,  8 

Hogan,   105  111.  App.    136,  affirmed  A.   &   E.   Ann.    Cas.  443;   Budd   v. 

208  111.  161,  69  N.  E.  853 ;  Chapman  Brooke,   3   Gill.   198,  43   Am.   Dec. 

V.   Hamblet,   100   Me.  454,  62   Atl.  321. 

215;  Bray  v.  Conrad,  101  Mo.  331,  '  Wilkins   v.   Young,    144   Ind.    1, 

13  S.  W.  957 ;  Linville  v.  Greer,  165  41  N.  E.  68,  55  Am.  St.  Rep.  162. 

Mo.  380,  65  S.  W.  579 ;  Van  Winkle  8  College   Corner  &  R.   G.   Road 

V.  Van  Winkle,  80  N.  Y.  Supp.  612,  v.  Moss,  92  Ind.  119. 

39  Misc.  Rep.  593 ;  Wilson  v.  Lang-  ^  Dismukes  v.  Wright,  20  N.  C. 

home,   102  Va.  631,  47   S.  E.  871;  346. 

Bolio  V    Marvin,  130   Mich.  82,  89  i  Whitmore    v.    Brown,    100    Me. 

N.  W.  563.  410,  62  Atl.  985. 

6  Dickson  v.  Van  Hoose,  157  Ala.  2  Lindsey   v.   Eckels,  99  Va.  668, 

459,    19  L.R.A.(N.S.)    719,   47    So.  40  S.  E.  23. 

718,  citing  §  848  of  the  text   and,  3  Hogan's   Heirs   v.    Welcker,    14 

also,   Seay  v.   McCormick,  68  Ala.  Mo.  177. 


1564  ■  THE    LAW    OF    DEEDS.  [CHAP.    XXV. 

lano-Liage  were  not  in  the  minds  of  the  parties  at  the  time  the 
sale  was  agreed  upon.*  Inconsistent  technical  rules  of  con- 
struction must  yield  to  the  intention  of  the  parties  as  gathered 
from  the  whole  instrument,^  and  unless  some  rule  of  prop- 
erty is  violated  the  intent  of  the  parties  to  the  deed,  when  as- 
certained, will  be  effectuated.*'  The  habendum  clause  is  not 
conclusively  controlling  as  the  intention  is  to  be  gathered  from 
the  deed  taken  as  a  whole.'  The  principal  object  to  be  at- 
tained is  the  ascertainment  of  the  intention  of  the  parties  which, 
if  consistent  with  law,  should  be  carried  into  effect.  In  arriv- 
ing at  this  intent,  the  language,  in  case  of  ambiguity,  will  be 
construed  most  strongly  against  the  grantor,  and  the  court 
may  consider  the  circumstances  surrounding  the  transaction 
and  the  situation  of  the  parties  at  the  time  at  which  the  deed 
is  executed  as  well  as  the  state  of  the  subject  matter  con- 
veyed.* The  intent  of  the  grantor  clearly  appearing  from  the 
whole  instrument  cannot  be  defeated  by  the  rule  that  the  deed 
is  to  be  construed  most  strongly  against  the  grantor.'  The 
deed  must  be  construed  against  the  grantor  in  all  cases  where 
there  is  uncertainty  in  the  deed  and  the  real  intent  of  the 
parties  is  left  in  doubt,^  and  as  forfeitures  are  not  favored,  any 
reasonable  construction  that  will  avoid  such  a  result  will  be 
favored.^ 

§  849.     Divers  estates. — From  the  rule   stated   in  the 
preceding  section,  that  a  deed  will  be  construed  most  strongly 

*Farnam    v.    Brooks,    26    Mass.  ''Harriot    v.    Harriot,    49    N.    Y. 

(9  Pick.)  212.  Supp.  447,  25  App.  Div.  245. 

5  Hall  V.  Wright,  121  Ky.  16,  87  » Allemong  v.  Gray's  Admr.,  92 
S.  W.  1129.  Va.  216,  23  S.  E.  298. 

6  Gibney  v.  Fitzsimmons,  45  W.  ^  Negaunee  Iron  Co.  v.  Iron  Cliffs 
Va.  334,  32  S.  E.  889.  The  intent  Co.,  134  Mich.  264,  96  N.  W.  468. 
is  to  be  deduced  from  the  whole  ^  Cook  v.  Hensler,  107  Pac.  178. 
instrument  and  eflfect  should  be  ^  Glen  Rose  Collegiate  Institute 
given  to  every  part  if  possible.  v.  Glen  Rose  Independent  School 
Waldron  v.  Toledo  etc.  Ry.  Co.,  55  Dist.  No.  1  (Tex.  Civ-  App.)  125 
Mich.  420,  21  N.  W.  870.  S.  W.  379. 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION  1565 

against  the  grantor,  it  results  that  the  deed  will  be  construed 
to  convey  to  the  grantee  whatever  interest  and  estate  the  grant- 
or may  have  in  the  land  at  the  time  of  the  execution  of  the 
deed,  unless  the  deed  shows  that  the  grantor's  intention  was 
to  pass  a  less  estate.'  If  a  person  has  divers  estates  in  land, 
as,  for  instance,  for  life  and  in  fee,  any  charge  or  grant  made 
by  him  shall  bind  the  whole  estate.* 

§  849a.     Deed  of  executor  passing  individual  interest. 

— Where  a  person  has  an  individual  interest  in  land,  and 
is  also  authorized  as  executor  or  in  some  other  representative 
capacity  to  convey  such  land,  a  deed  made  by  him,  purporting 
to  convey  a  complete  title,  but  not  referring  to  his  representa- 
tive character  or  to  a  power  to  sell  in  a  will,  conveys  his  in- 
dividual interest  only.^  In  a  case  where  this  rule  was  en- 
forced, Mr.  Chief  Justice  Scates  remarked :  "We  must  read, 
interpret,  construe,  and  understand  the  deed,  by  and  from  its 
language  and  terms."  ^  Where  there  is  no  evidence  to  the 
contrary  in  a  deed,  it  will  be  presumed  to  operate  on  the  grant- 
or's own  right,  if  it  appear  that  besides  his  own  he  has  one  in 
a  representative  character.'' 

'     §  850.     Construction  favorable  to  operation  of  deed. — 

A  deed  should  be  considered  as  intended  to  have  some  effect, 
and  a  construction  making  it  operative  will  be  preferred  to 
one  rendering  it  void.  "Some  effect  will,  if  possible,  be  given 
to  the  instrument,  for  it  will  not  be  intended  that  the  parties 
meant  it  to  be  a  nullity."  '     A  mortgage  described  the  land 

» Stockett   V.   Goodman,    47    Md.  '  Coffing  v.  Taylor,  16  III.  474. 

54.  ^  Gano  V.  Aldridge,  27  Ind.  294 ; 

*  Stockett    V.    Goodman,    47    MA  Hoffman    v.    Mackall,    5    Ohio    St. 

54.  124,  64  Am.  Dec.  637;  Anderson  v. 

^  Cohea  v.  Hemingway,  71   Miss.  Baughman,  7  Mich.  69,  74  Am.  Dec. 

22,  42  Am.    St.   Rep.   449.  699.      See    Waterman    v.    Andrews, 

«In  Davenport  v.  Young,  16  IlL  14  R.  I.  589;  Piper  v.  True,  36  CaL 

548,  63  Am,  Dec  320.  606. 


1566  THE    LAW    OF    DEEDS.  [CHAP.    XXV. 

affected  as  "lot  four  of  block  one"  of  a  certain  farm,  "be- 
ing now  used  and  occupied  with  the  steam  sawmill  thereon, 
by  the  parties  of  the  first  part,"  This  portion  of  the  farm  had 
been  platted  into  four  lots  or  blocks,  which  had. not  been  sub- 
divided. The  mill  was  situated  on  the  one  which  was  num- 
bered four  on  the  plat,  while  the  others  were  fenced  in,  used, 
and  occupied  with  the  mill.  The  court  held  that  the  words 
"of  block  one"  should  be  rejected,  and  the  mortgage  was 
held  a  valid  lien  upon  lot  four.  Said  Mr.  Justice  Christiancy : 
"It  is  a  rule  as  well  founded,  in  reason  as  it  is  supported  by 
authority,  that  deeds  and  other  written  instruments  should  be 
so  construed  as  to  render  them  valid  and  effectual,  rather  than 
void,  ut  res  magis  valeat  quam  pereat.  But  to  construe  this 
mortgage  so  as  to  make  the  tracts  in  question  blocks  instead 
of  lots,  would  be  to  violate  the  plain  meaning  of  words  and 
the  clear  intent  of  the  parties,  and  to  ignore  the  whole  subject 
matter  in  order  to  lay  a  foundation  for  violating  this  cardinal 
rule  of  construction."  ^  Only  unavoidable  necessity  should 
permit  a  construction  to  be  placed  upon  a  deed  which  requires 
the  rejection  of  an  entire  clause.^  If  a  deed  conveys  land  to 
a  married  woman  without  defining  the  estate,  but  in  the  ha- 
bendum  clause  the  estate  is  limited  to  her  during  her  natural 
life,  with  a  remainder  to  her  husband,  who  is  mentioned  by 
name,  and,  in  case  he  should  die  before  his  wife,  then  to  his 
heirs  at  law,  a  life  estate  in  the  wife  is  created,  and  the  hus- 
band takes  the  remainder  in  fee  simple.^     "The  real  intention 

9  Anderson  v.  Baughman,  7  Mich.  fit  they  are  made:   House  v.    Pal- 

69,  77,  74  Am.  Dec.  699.  mer,  9  Ga.  497;  Cardigan  v.  Anni- 

iCity  of  Alton  v.  Illinois  Trans-  tage,  2  Barn.  &  C.  197;  Jackson  v. 

portation    Co.,    12    111.    38,    52   Am.  Lawrence,    11    Johns.    191;    Bullcn 

Dec.  479;    Riggin   v.   Love,   72  111.  v.  Denning,  5  Barn.  &  C.  842.    And 

556.      See    Pool    v.    Blakie,    53    111.  see,  Palmer  v.  Warren  Ins.  Co.,  1 

495;   Coleman  v.   Beach,  87   N.   Y.  Story,  360;  Blackett  v.  Royal  Exch. 

545.  Assn.  Co.,  2  Cromp.  &  J.  244;  Hill 

2  Riggin  V.  Love,  72  111.  553.    Res-  v.    Grange,    Plow.   171 ;    Donnell   v. 

ervations  are  considered  as  the  Ian-  Columbian    Ins.    Co.,    2    Sum.    366, 

guage  of  the  party  for  whose  bene-  381 ;   Co.  Litt.  42a.     The  language 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION. 


1567 


of  the  framer  of  the  deed,  the  written  declaration  of  whose 
mind  it  is  always  considered  to  be,  is  the  end  and  object  to 
the  discovery  and  effectuating  of  which  all  the  rules  of  con- 
struction, properly  so  called,  are  uniformly  directed.  When 
technical  words  or  phrases  are  made  use  of,  the  strong  pre- 
sumption is,  that  the  party  intended  to  use  them  according  to 
their  correct  technical  meaning ;  but  this  is  not  conclusive  evi- 
dence that  such  was  his  real  meaning.  If  the  technical  mean- 
ing is  found  in  the  particular  case  to  be  an  erroneous  guide  to 
the  real  one,  leading  to  a  meaning  contrary  to  what  the  party 
intended  to  convey  by  it,  it  ceases  to  answer  its  purpose.     The 


of  the  acknowledgment  of  the  pay- 
ment of  the  consideration  in  a  deed 
was :  "I,  the  said  grantor,  for  and 
in  consideration  of  the  sum  of  one 
thousand    dollars,    in    hand    before 
the  ensealing  hereof,  well  and  truly 
paid  by  Wanton  Durfee,  of  the  city 
and  county  of  Providence,  subject 
to  the  life-estate  of  Mary  L.  Greene 
and  Almira  Durfee,  both  of  War- 
wick,  county  of   Kent,   and  Susan 
H.  Greene,  of  the  city  and  county 
of  Providence,  who  jointly,  or  the 
survivors  of  them,  shall  be  entitled 
to  their  fourths  of  the  annual  in- 
come    of    said     estate,     the     other 
fourth   of  said   income   to   be   ex- 
pended   on    said    estate    in    better- 
ments,   the    receipt    whereof    I    do 
hereby  acknowledge,  and  am  there- 
with fully  satisfied,  contented,  and 
paid";    and    thereof,    and    of    every 
part  and  parcel   thereof,  do   exon- 
erate, acquit,  and  discharge  the  said 
Wanton  Durfee,    Mary  L.   Greene, 
Almira     Durfee,     and     Susan     H. 
Greene,  their  heirs,  executors,  and 
administrators  forever."    Mr.  Chief 
Justice    Durfee,    in    delivering    the 
opinion    of    the    court,    said :    "The 
words    in    italics    seemed    to    have 


been  designed  either  to  qualify  the 
estate  conveyed  by  the  succeeding 
words,  or  else  to  recognize  or  refer 
to  some  qualification  otherwise 
existing  or  made,  or  to  be  made 
by  some  other  instrument.  We 
think  it  is  clear  that  they  cannot 
qualify  the  estate  conveyed,  be- 
cause they  are  ineffectual  in  them- 
selves to  create,  and  indeed  do  not 
purport  to  create,  any  estate,  and 
because  the  succeeding  words,  being 
the  operative  words  of  the  deed, 
make  no  reference  to  them,  but  con- 
vey the  estate  described  absolutely 
and  immediately  to  all  the  grantees 
in  fee  simple.  The  italicized  words, 
in  fact,  do  not  affect  in  any  way  the 
construction  of  the  deed.  If  they 
are  of  any  use  in  the  deed,  they  are 
of  use  only  as  notice  to  put  people 
on  inquiry,  in  case  the  estate  is 
qualified  by  some  other  instrument, 
or  by  equitable  intendment,  or  as 
evidence  of  some  purpose  still  un- 
accomplished": Durfee,  Petition- 
ers, 14  R.  I.  47.  A  construction 
that  will  render  a  deed  valid  will  be 
preferred  to  one  that  will  defeat 
it:  Maxwell  v.  McCall,  (Iowa,)  124 
N.  W.  760. 


1568  THE  LAW  OF  DEEDS.        [CHAP.  XXV. 

deed  may  be  drawn  inartificially,   from  ignorance,  or  inad- 
vertence, or  other  causes;  but  still,  if  there  is  enough  clearly 
to  convey  information  as  to  the  real  meaning,  the  object  is 
attained.     The  mind  is  with  certainty  discovered,  and  being 
known  must  be  the  guide,  or  the  act  and  deed  would  not  be 
the  act  and  deed  of  the  party,  but  of  the  court.     Because  the 
words  which  are  the  signs  of  the  ideas  of  the  person  using 
them  are  in  general,  and  in  the  correct  use  of  them,  the  signs 
of  ideas,  different  from  those  of  which  in  the  particular  case, 
they  are  found  less  technically  and  correctly,  but  with  equal 
certainty  to  be  the  signs;  can  it  follow  that  they  are  to  be 
construed,  to  represent  the  ideas  of  which  they  are  known  not 
to  be  the  signs,  in  preference  to  those  of  which  they  appear 
to  be  the  signs  ?    Where  is  the  authority  that  compels  the  court 
to  go  this  length  in  its  adherence  to  technical  meaning?     The 
contrary  has  been  long  and  universally  established  to  be  the 
rule  by  the  highest  authorities  from  the  earliest  period,  with- 
out a  single  one  to  the  contrary.     Many  cases  may  doubtless 
be  found  in  which  technical  meaning  has  been  allowed  to  pre- 
vail, notwithstanding  some  appearance  of  a  contrary  intent; 
but  this  has  been  where  the  manifestation  of  intent  was  not 
deemed  sufficient  to  get  over  the  presumption  in  favor  of  legal 
construction.     The  paramount  regard  to  be  had  in  a  case  cir- 
cumstanced as  the  present,  to  the  meaning  and  intention  of  the 
grantor,  in  preference  to  technical  meaning,  is  the  settled  rule 
of  construction.     If  the  subject  of  the  instrument  on  which 
the  question  arises  be  one  that  is  not  matter  of  law   (over 
which  intention  has  no  control),  but  depends  wholly  on  the 
will  and  act  of  the  party,  such  as  the  appointment  by  the 
donor  in  a  deed  of  gift  of  his  own  donee;  if  the  words  to  be 
construed  are  not  words  of  limitation  (in  which  a  stricter  at- 
tention to  forms  may  be  required,  especially  in  deeds),  but 
words  of  purchase  and  description,  made  use  of  to  designate 
the  person  of  the  first  taker;  in  such  case,  if  the  meaning  and 
intention  of  the  grantor  be  clearly  manifested  on  the  face  of 


CHAP.    XXV.]       PRINCIPLES   OF    CONSTRUCTION.  1569 

the  instrument,  as  to  the  person  or  character  intended  to  be 
the  object  of  grant,  and  if  the  words  that  he  has  made  use  of 
to  convey  his  meaning  will  admit  of  an  interpretation  con- 
formable to  it,  though  contrary  to  their  correct  technical  sense, 
there  is  no  case  or  dictum  to  be  found  which  requires  the  court 
to  adopt  the  technical  sense  in  opposition  to  the  actual  mean- 
ing of  the  party;  on  the  contrary,  the  authorities  uniformly 
demand  the  preference  to  be  given  to  intent,  over  technical  im- 
port and  form."  ^  But  under  the  strict  rules  applicable  to  the 
execution  of  deeds  by  attorneys  in  fact,  a  deed  may  be  inopera- 
tive notwithstanding  the  intention  of  the  parties,  because  it 
fails  by  a  proper  signature  to  bind  the  principal.  A  strong 
case  illustrating  the  strictness  of  the  early  cases  in  this  regard, 
is  one  where  a  party  covenanted  to  sell  and  convey  to  another 
certain  lots  of  land,  and  on  the  payment  of  the  sum  agreed 
upon  to  execute  to  him  a  good  and  sufficient  deed.  The  agree- 
ment to  sell  and  convey  stated  that  it  was  the  agreement  of 
the  principal  by  his  attorney  in  fact,  and  that  the  principal 
covenanted  to  sell  and  convey,  but  the  testimonium  clause 
stated  that  the  attorney,  "as  attorney  of  the  party  of  the  first 
part,  and  the  said  party  of  the  second  part,  have  hereunto  set 
their  hands  and  seals,"  etc.  The  court  decided  that  as  the  at- 
torney had  only  affixed  his  own  name  the  covenant  was  void.* 
Wherever  it  is  possible  to  do  so  a  deed  will  be  construed  so 

'  Plumer,  M.  R.,  in  Cholmondeley  sealed    and    acknowledged,    cannot 

V.  Clinton,  2  Jacob  &  W.  91.     An  operate  as  an  effectual  transfer,  be- 

instrument  which  states  that  "I,  A  cause     it    contains    no     words     of 

B,  warrant  and  defend  unto  C  D,  grant :   Hummelman  v.   Mounts,  87 

her  heirs  and  assigns  forever,  the  Ind.  178. 

receipt  of  which  is  hereby  acknowl-  *  Townsend  v.  Corning,  23  Wend, 

edged,  the  following  real  estate,  on  436,  and  cases  cited.     An  Lnterest- 

this  condition:  I,  the  said  A  B,  is  ing  discussion  as  to  the  signature 

to   have    and    hold    full   possession  of  deeds   executed  by  attorneys   in 

of    said    lands    during    my    natural  fact  will  be  found  in  Doe  v.  Doe, 

life,  and  to  hold  appurtenances  unto  3  Am.  Jur.  52,  77.     See,  for  a  dis- 

her,    her    heirs,    and    assigns    for-  cussion  of  signature  by  attorneys  in 

ever,*'  although  it  may  be  assigned,  fact,  vol.  1,  §§  377-381. 
Deeds,  Vol.  II.— 99 


1570 


THE    LAW    OF    DEEDS. 


[chap.    XXV. 


as  to  give  it  some  effect.''  "A  deed  should,  if  possible,''  says 
Mr.  Chief  Justice  McBride,  "be  so  construed  that  some  effect 
will  be  given  it.  It  will  be  assumed  that  the  parties  did  not 
intend  that  it  should  be  a  nullity,  and  did  intend  that  it  should 
be  operative.  It  will  be  upheld  rather  than  defeated."  ^  Re- 
specting conveyances  of  real  estate  "courts  in  modern  times 
have  shown  more  consideration  for  the  substance  of  the  con- 
tract than  for  the  shadow,  for  the  passing  of  the  estate  ac- 
cording to  the  intention  of  the  parties  than  for  the  manner 
of  passing  it;  and  whenever  the  rules  of  language  and  of  law 
will  permit,  that  construction  will  be  adopted  which  will  make 
the  contract  legal  and  operative  in  preference  to  that  which 
would  have  an  opposite  effect."  '  If  the  deed  is  inartificially 
and  untechnically  drawn  it  should  receive  a  liberal  construc- 
tion.' 

§  850a.     Merger  of  contract  to  convey  in  deed. — The 

rule  applicable  to  all  contracts,  that  prior  stipulations  are 
merged  in'  the  final  and  formal  contract  executed  by  the  par- 
ties, applies,  of  course,  to  a  deed  based  upon  a  contract  to  con- 
vey. When  a  deed  is  delivered  and  accepted  as  performance 
of  a  contract  to  convey,  the  contract  is  merged  in  the  deed. 
Though  the  terms  of  the  deed  may  vary  from  those  contained 


6  Haven  v.  Adams,  86  Mass.  (4 
Allen)  80;  Slater  v.  Dudley,  35 
Mass.  (18  Pick.)  373;  Peter  v. 
Byrne.  175  Mo.  273,  75  S.  W.  433, 
97  Am.  St.  Rep.  576;  Davenport 
V.  Gwilliams,  133  Ind.  142,  22 
L.R.A.  244,  31  N.  E.  790;  Thatcher 
V.  Wardens  etc.  St.  Andrew's 
Church  of  Ann  Arbor,  37  Mich. 
264;  Nuckols  v.  Stone,  120  Ky. 
631,  87  S.  W.  799. 

6  Da^'enport  v.  Gwilliams,  133 
Ind.  142,  22  L.R.A.  244.  31  N.  E. 
790. 

■f  Roberts  v.  Mclntire,  84  Me.  36^, 


24  Atl.  867,  quoted  approvingly  in 
Peter  v.  Byrne,  175  Mo.  233,  75 
S.  W.  433,  97  Am.  St.  Rep.  576. 

8  Shartenberg  v.  Ellbey,  27  R.  I. 
414,  62  Atl.  979.  ^Ir.  Chief  Justice 
Ames  in  Deblois  v.  Earle,  7  R.  I. 
26  said :  "The  cardinal  rule  in  the 
interpretation  of  all  instruments 
.  .  .  is  to  read  the  writing:  and 
taking  its  language  in  connection 
with  the  relative  position  and  gen- 
eral purpose  of  the  parties,  to 
gather  from  it,  if  you  can  the  in- 
tent in  the  questionable  oarticular. 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1571 

in  the  contract,  still  the  deed  must  be  looked  to  alone  to  de- 
termine the  rights  of  the  parties.     "No  rule  of  law  is  better 
settled  than  that  where  a  deed  has  been  executed  and  accepted 
as  performance  of  an  executory  contract  to  convey  real  estate, 
the  contract  is  functus  officio,  and  the  rights  of  the  parties 
rest  thereafter  solely  on  the  deed."  ^    A  vendor,  in  a  contract 
to  sell,  agreed  to  convey  a  good  title,  and  subsequently  executed 
a  deed,  which  the  vendee  accepted  in  performance  of  the  con- 
tract, knowing  when  he  accepted  the  deed  that  the  title  to  a 
part  of  the  land  was  in  the  United  States.     It  was  decided 
that  the  previous  contract  was  merged  in  the  deed,  and  that 
the  rights  of  the  vendee  must  depend  on  the  deed  and  not  on 
the  contract.^     Where  a  lease  is  executed  containing  certain 
conditions,  and  the  lessor,  before  its  expiration,  conveys  the 
land  by  deed  to  the  lessee,  reciting  the  lease,  but  omitting  all 
reference  to  the  conditions,  the  lease  is  merged  in  the  con- 
veyance, and  the  title  of  the  grantee  is  not  encumbered  with 
the  conditions  contained  in  the  lease.^    The  acceptance  by  the 
vendee  of  a  deed  is  considered  as  a  full  compliance  with  the 
contract  to  convey,  and  as  annulling  it.^    When  the  transaction 
has  been  fully  closed,  no  allowance  can  be  made  because  the 
quantity  of  land  may  be  greater  or  less  than  that  provided  for 
in  the  prior  contract.*    So,  it  has  been  held,  that  if  in  the  con- 
tract of  sale  the  vendor  reserves  the  timber  growing  on  the 
land  to  be  conveyed,  and  stipulates  for  the  right  to  remove 
it  within  a  specified  time,  but  within  the  time  so  limited  exe- 
cutes a  warranty  deed  to  the  vendee,  but  fails  to  provide  for 
the  reservation,  the  vendee  obtains  the  right  to  the  timber.^ 
An  oral  agreement,  made  prior  to  the  sale,  to  secure  an  out- 

9  Slocum  V.  Bracy,  55  Minn.  249,  ^  Cronisler  v.  Cronister,  1  Watts 

43  Am.  St.  Rep.  499,  per  Mitchell,  &  S.  442. 

j_  5  Clifton  V.  Jackson  Iron  Co.,  74 

1  Bryan  v.  Swain,  56  Cal.  616.  Mich.    183,    16    Am.    St.    Rep.    621. 

2  St.     Philip's     Church     v.     Zion  Said    the    court   per    Campbell,    J. : 
Presbyterian  Church,  23  S.  C.  297.  "Had    no    deed    been    made,    it    is 

3  Carter  v.  Beck,  40  Ala.  599.  agreed  that  the  reservation  would 


1572 


THE    LAW    OF    DEEDS. 


[chap.    XXV. 


Standing  title  is  merged  in  the  covenants  of  the  deed.*  A  deed 
also  merges  all  representations  of  freedom  from  encumbrance 
in  the  absence  of  fraud  and  of  express  or  implied  covenants."' 
The  acceptance  of  the  deed  is,  in  the  absence  of  fraud  or  mis- 
take, considered  the  consummation  of  the  contract  between  the 
parties,  and  therefore  conclusive  evidence  of  their  agree- 
ment.'   All  inconsistencies  that  may  exist  between  the  contract 


have  prevailed.  But  a  previous 
contract  cannot  contradict  or  con- 
trol the  operation  of  a  deed.  It  was 
competent  for  defendant  to  rehn- 
quish  any  contract  reservation,  and 
a  deed  which  grants  and  warrants 
without  any  reservation  has  that 
effect.  We  do  not  hold  that  if  the 
deed  were  so  made  by  some  mis- 
take within  the  cognizance  of  equi- 
ty, the  mistake  might  not  be  cor- 
rected. Neither  need  we  consider 
whether,  after  such  a  deed,  there 
might  not  be  such  dealings  as  to 
render  such  timber  cutting  lawful 
by  license,  express  or  implied.  In 
this  case  there  was  no  testimony 
tending  to  show  that  the  deed  was 
not  supposed  and  intended  to  close 
up  all  the  rights  of  the  parties." 

6  Coleman  v.  Hart,  25  Ind.  256. 

"'Fritz  v.  McGill,  31  Minn.  536. 
See  for  other  cases  relating  to  the 
particular  circumstances  where  this 
rule  has  been  enforced.  Carter  v. 
Beck,  40  Ala.  599;  Gibson  v.  Rich- 
art,  83  Ind.  313;  Davenport  v. 
Whisler,  46  Iowa,  287;  Jones  v. 
Wood,  16  Pa.  St.  25;  Frederick  v. 
Youngblood,  19  Ala.  680,  54  Am. 
Dec.  209;  Houghtaling  v.  Davis,  10 
Johns.  297 ;  Davis  v.  Clark,  47  N.  J. 
L.  338;  Timms  v.  Shannon,  19  Md. 
296,  81  Am.  Dec.  632;  Kerr  v. 
Calvit,  Walker,  115,  12  Am.  Dec. 
537;  Williams  v.  Hathaway,  19  Pick. 


387 ;  Howes  v.  Barker,  3  Johns. 
506,  3  Am.  Dec.  526 ;  Hunt  v.  Ami- 
don,  4  Hill,  345,  40  Am.  Dec.  283; 
Shontz  V.  Brown,  27  Pa.  St.  123; 
Savage  v.  Canthorn,  109  Va.  694, 
64  S.   E.    1052. 

8  Jones  V.  Wood,  16  Pa.  St.  25, 
and  cases  cited  under  the  various 
notes  to  this  section.  But  in 
Houghtaling  v.  Lewis,  10  Johns. 
298,  the  court  say:  "Articles  of 
agreement  for  the  conveyance  of 
land  are,  in  their  nature,  executory, 
and  the  acceptance  of  a  deed,  in 
pursuance  thereof,  is  to  be  deemed, 
prima  facie,  an  execution  of  the 
contract,  and  the  agreement  there- 
by becomes  void,  and  of  no  further 
effect.  Parties  may,  no  doubt,  enter 
into  covenants  collateral  to  the 
deed,  or  cases  may  be  supposed 
when  the  deed  would  be  deemed 
only  a  part  execution  of  the  con- 
tract, for  the  provisions  in  the  two 
instruments  clearly  manifested 
such  to  have  been  the  intention  of 
the  parties.  But  the  prima  facie 
presumption  of  law  arising  from 
the  acceptance  of  a  deed,  is  that 
it  is  an  execution  of  the  whole 
contract;  and  the  rights  and  reme- 
dies of  the  parties,  in  relation  to 
such  contract,  are  to  be  determined 
by  such  deed,  and  the  original 
agreement  becomes  null  and  void." 
But  inasmuch   as  in  that  case  the 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION,  1573 

of  sale  and  the  deed  are  to  be  determined  by  the  deed  alone.^ 
The  prior  oral  negotiations  cannot  be  set  up  for  the  purpose  of 
contradicting  the  deed.-^  After  the  execution  of  the  deed,  the 
grantee  cannot,  in  the  absence  of  actual  fraud  recover  for 
any  misrepresentation  relating  to  the  title,  not  covered  by  the 
covenants  of  the  deed  ^  as  the  deed  is  considered  to  be  a  com- 
plete relinquishment  of  all  conflicting  claims  in  the  preceding 
contract  of  sale.^  But  if  the  contract  of  sale  provides  that  the 
grantor  shall  deliver  a  deed  which  shall  contain  full  covenants 
of  warranty  for  conveying  the  property  together  with  "gas 
fixtures,  ranges,  heating  and  hot  water  apparatus,"  this  cove- 
nant is  not  merged  in  a  deed  failing  to  mention  the  fixtures, 
and  the  vendor  will  be  obliged  to  compensate  the  vendee  for 
their  loss  if  the  ranges  are  removed  by  a  third  person.*  A 
verbal  reservation  that  is  equivalent  to  an  exception  or  defeas- 
ance and  that  is  repugnant  to  the  legal  effect  of  the  deed  will 
be  treated  as  void.^  A  deed  introduced  in  evidence  of  title 
shows  conclusively  compliance  with  all  the  conditions  of  a 

court  held  that  the  proof  was  con-  Am.    Dec.    30.      Parol    evidence    is 

elusive  that  the  deed  was  accepted  inadmissible  to  show  conversations 

in    full    satisfaction   of    the    agree-  between    the    parties    prior    to    the 

ment,     the     language     quoted    can  execution    of    the    deed:    Smith    v. 

scarcely  be  taken  as  making  the  de-  Fitzgerald,  59  Vt.  451,  9  Atl.  Rep. 

cision    an    exception    to    the    rule  604.     See,  also,  Carr  v.  Hays,   110 

stated  in  the  text.     It  was  held  in  Ind.  408,  11  N.  E.  Rep.  25. 

Speed's    Executors    v.    Hann,    IT.  9  Smith  v.  McClain,  146  Ind.  11, 

B.    Mon.    16,    15    Am.    Dec.    78,    in  45  N.  E.  41 ;  Turner  v.  Cool,  23  Ind! 

conflict  with  the  general  rule,  that  56,  85  Am.  Dec.  449. 

articles   of   agreement   did   not  be-  i  Beasley  v.  Phillips,  20  Ind.  App. 

come   merged   in   a   deed   executed  182,  50  N.   E.  488. 

subsequently.    Attention  should  also  2  Brauckmann     v.     Leighton,     67 

be  called  to  the  case  of  Donlon  v.  Mo.  App.  245. 

Evans,  40  Minn.  501,  but  this  case  ^  Horner  v.   Lowe,   159  Ind.  406, 

is    explained    and    distinguished    in  64  N.   E.  218;   Hampe  v.  Higgins, 

the  later  decision  by  the  same  court  74  Kan.  296,  85  Pac.  1019. 

of  Slocum  v.  Brady,  55  Minn.  249,  *  Wynne  v.   Friedman,  96  N.  Y. 

43    Am.    St.    Rep.   499.      See,    also,  Supp.  883,  49  Misc.  Rep.  616. 

Porter  v.  Noyes,  2  Greenl.  22,   11  ^  Chapman  v.  Long,  10  Ind.  465. 


1574 


THE    LAW    OF    DEEDS. 


[chap,    XXV. 


precedent  bond."  But  if  during  the  pendency  of  a  suit,  in- 
volving title  to  land,  a  person  who  is  not  a  party  to  the  suit,  yet 
who  has  a  bond  for  title,  accepts  a  deed  to  the  property  from 
the  grantor  under  the  bond,  who  was  a  party  to  the  suit,  a 
merger  of  the  bond  and  deed  is  not  thereby  created.  A  no- 
tice of  lis  pendens  filed  in  the  suit,  while  applying  to  the  deed, 
will  not  apply  to  the  bond.' 

§  850b.     Stipulation  surviving  the  deed. — There   may 

be  cases  where  the  stipulation  instead  of  becoming  merged  in 
the  deed,  survives  it  and  confers  an  independcHt  cause  of  ac- 
tion. Still,  such  cases  come  very  closely  to  the  border  line  of 
contradicting  the  general  rule  stated  in  the  preceding  section. 
A  case  where  such  stipulation  is  clearly  not  merged  in  the 
deed  is  that  of  a  parol  contract  made  by  the  vendor  to  refund 
the  purchase  money  on  failure  of  the  vendee  to  acquire  under 
the  deed  a  good  title  to  the  property  sold.  Such  an  agree- 
ment is  for  indemnity  against  the  consequences  of  the  taking 
of  the  title  that  the  deed  may  convey,  and  is  therefore  inde- 
pendent of  the  deed.'  So  it  has  been  held,  that  if  the  grantor 
in  a  warranty  deed  promises  to  indemnify  the  grantee  for 
any  improvements  that  he  may  make  in  case  the  title  should 
prove  worthless,  his  promise  is  enforceable.^  The  purpose  for 
which  a  deed  was  executed  may  be  shown.     Thus,  where  a 


8  Manspeaker  v.  Pipher,  5  Kan. 
App.  879,  48  Pac.  868;  affirmed 
Henting  v,  Pipher,  58  Kan.  788,  51 
Pac.  229. 

'  Wille  V.  Ellis,  22  Tex.  Civ.  App. 
462,  54  S.  W.  922. 

8  Close  V.  Zell,  141  Pa.  St.  390, 
23  Am.  St.  Rep.  296. 

3  Richardson  v  Gosser,  26  Pa.  St. 
335.  In  answer  to  the  argument 
that  the  contract  concerning  im- 
provements became  merged  in  the 
deed,  the  court  said:  "But  to  us  it 
appears  that  the  contract  on  which 


this  suit  is  founded  has  no  such 
relation  to  the  deed  referred  to. 
it  does  not  concern  the  sale  or  the 
transfer  of  the  title.  It  is  a  prom- 
ise to  do  another  thing."  For  other 
cases  on  the  same  point  see  Drinker 
V.  Byers,  2  Penr.  &  W.  528;  An- 
derson V.  Washabaugh,  43  Pa.  St. 
115;  Robinson  v.  Bakewell,  25  Pa, 
St.  424;  Brown  v.  Moorhead,  8  S. 
&  R.  569;  Walker  v.  France,  112  Pa. 
St.  203;  Frederick  v.  Campbell,  13 
S.  &  R.  136;  Cox  v.  Henry,  32  Pa. 
St.  18. 


CHAP.    XXV. i       PRINCIPLES    OF    CONSTRUCTION.  1575 

railroad  company  represented  that  a  right  of  way  was  de- 
signed for  the  main  hne  and  not  for  sidetracks,  and  the  right 
of  way  is  subsequently  used  for  sidetrack  purposes,  the  purpose 
for  which  the  deed  was  executed  may  be  shown  by  parol  evi- 
dence. In  such  a  case,  however,  its  use  will  not  be  enjoined, 
but  the  grantor  may  recover  damages  for  any  excessive  in- 
jury sustained  over  that  which  would  arise  from  the  use  rep- 
resented.^ Where,  as  a  part  of  the  consideration  of  the  sale, 
a  parol  agreement  is  made  restricting  the  use  of  the  land  in 
some  particular  for  a  specified  time,  it  is  not  merged  in  the 
deed.  The  title  is  not  affected  by  it,  and  such  an  agreement 
may  be  proven  by  parol  evidence.^  If  an  owner  agrees  orally 
at  the  time  of  the  sale  of  a  tract  of  land,  that  he  will  not  sell 
any  of  the  residue  except  for  a  specified  price  per  front  foot, 
he  will  be  bound  by  his  agreement.  It  is  not  void  on  the 
ground  that  it  is  against  public  policy  because  it  may  remove 
a  large  tract  from  sale  for  an  indefinite  time.  A  construction 
will  be  placed  upon  such  an  agreement  in  the  light  of  the  sur- 
rounding circumstances,  and  as  no  limitation  is  fixed,  it  will 
be  considered  as  operative  for  a  reasonable  length  of  time.^ 
Such  an  agreement  is  not  merged  in  the  deed  because  it  does 
not  contradict  anything  contained  in  the  deed,  but  it  is  a  col- 
lateral agreement  on  another  subject,  and  hence  may  be  estab- 
lished by  parol.*  Where  in  a  contract  for  the  purchase  of 
land,  there  was  a  provision  that  if  the  purchaser  did  not  build  a 
factory  on  the  land  he  should  reconvey  to  the  vendor  and  the 
purchaser,  entered  into  possession  of  the  land,  made  the  pay- 
ments as  they  were  required  by  the  contract  of  purchase,  ob- 
tained a  deed  but  failed  to  construct  the  factory  in  accordance 
with  the  terms  of  the  contract,  the  provision  relating  to  the 

1  Donisthorpe  v.  Fremont  etc.  R.       provement  Co.,  167  Mass.  1,  57  Am. 
Co.,  30  Neb.  142,  27  Am.  St.  Rep.       St.  Rep.  427. 

387.  *  Rackemann    v.    Riverbank    Im- 

2  Hall  V.  Solomon,  61  Conn.  476,       provement  Co.,  167  Mass.  1,  57  Am. 
29  Am.  St.  Rep.  218.  St.   Rep.  427. 

'  Rackemann    v.    Riverbank    Im- 


1576  THE    LAW    OF    DEEDS.  [CHAP.    XXV. 

construction  of  the  factory  was  considered  to  be  independent 
and  collateral  and  not  such  a  preliminary  agreement  as  would 
merge  in  the  deed.^ 

§  850c.  Deed  correcting  prior  deed. — The  rule  prevail- 
ing with  reference  to  contracts  to  convey,  that  all  prior  stipu- 
lations of  the  parties  are  merged  in  the  deed  finally  delivered 
and  accepted,  also  prevails  where  a  second  deed  has  been  exe- 
cuted as  a  substitute  for,  and  a  correction  of,  a  prior  deed.' 
If  the  deed  delivered  as  a  substitute  omits  lands  contained  in 
the  prior  conveyance,  the  grantee  and  his  heirs  are  estopped 
from  claiming  them.'  Where  a  subsequent  deed  has  been  exe- 
cuted in  place  of  a  prior  deed  misdescribing  the  land  intended 
to  be  conveyed,  the  possession  by  the  grantor  of  the  land  first 
conveyed  is  adverse  to  the  grantees.^  If  a  grantee  accepts  a 
deed  of  correction  in  lieu  of  a  prior  deed  executed  by  the 
grantor,  and  the  grantee  sells  the  land  conveyed  to  him  by  the 
subsequent  deed,  he  is  estopped  from  claiming  title  to  the  land 
conveyed  by  the  prior  deed.  His  acceptance  of  the  second 
deed  constitutes  an  election  to  take  the  land  conveyed  by  the 
corrected  deed,  and  operates  as  a  relinquishment  of  title  to  the 
land  conveyed  by  the  first  deed,  as  one  who  accepts  the  bene- 
fits of  a  conveyance  must  adopt  the  whole  of  it.' 

§  851.  Contemporaneous  exposition. — A  deed  should 
receive  a  fair  and  reasonable  construction  which  will  effectuate 
the  intention  of  the  parties,  and  a  contemporaneous  exposi- 
tion of  the  deed  is  always  entitled  to  the  greatest  consider- 

8  Doty  V.    Sandusky   Cement   Co.  "^  Chloupek    v.    Perotka,    89    Wis, 

of  Ohio,  (Ind.  App.),  91  N.  E.  569.  551;  46  Am.  St.  Rep.  858. 

6  Chloupek   V.    Perotka,    89    Wis.  8  Pox    v.    Windes,    127    Mo.    502, 

551,  46  Am.  St.  Rep.  858;   Emeric  48  Am.  St.  Rep.  648. 

V   Alvarado,  64  Cal.  529.     And  see  ^  Fox   v.    Windes,    127    Mo.   502, 

Hutchinson  v.  Chicago  etc.  Ry.  Co.,  48  Am.  St.  Rep.  648. 
41  Wis.  541. 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1577 

ation.^  Unless  a  contrary  intent  is  manifest,  a  deed  should 
be  construed  in  all  its  parts  with  respect  to  the  actual,  right- 
ful state  of  the  property  at  the  time  at  which  the  deed  is  exe- 
cuted.* A  deed  will  not  be  declared  void  for  uncertainty  un- 
til it  has  been  examined  in  the  light  of  contemporaneous  facts. 
When  from  these  facts  a  clear  intention  can  be  gathered,  and 
the  words  of  the  instrument  by  fair  interpretation  are  sus- 
ceptible of  a  construction  to  uphold  such  intention,  the  words 
will  be  so  construed,  and  the  instrument  enforced.^  Where  a 
deed  purporting  to  convey  a  strip  of  land  of  a  specified  width 
along  a  line  already  designated  does  not  give  the  lateral  bound- 
aries, and  fails  to  designate  the  particular  part  of  such  strip 
traversed  by  such  line,  and  the  grantee  enters  into  possession 
under  the  deed,  and  marks  the  lateral  boundaries  by  the  erec- 
tion of  fences,  and  retains  possession  for  several  years,  with 
the  grantor's  consent  and  acquiescence,  the  parties  thus  place 
a  practical  construction  upon  the  deed,  and  this  construction 
binds  both  the  parties  and  those  claiming  under  them.*  The 
construction  of  the  deed  given  to  it  by  the  parties,  as  mani- 
fested by  these  acts  and  omissions  will  be  considered  the  prop- 
er construction  of  the  conveyance  unless  it  can  be  clearly  shown 

1  Connery  v.  Brooke,  1Z  Pa.   St.  Lane  v.  Thompson,  43  N.  N.  324 
80.      See  Winnipiseogee   v.    Perley,  Rider   v.    Thompson,   23    Me.   244 
44  N.  H.  83;  Putzel  v.  Van  Brunt,  Karmuller  v.  Krotz,  18  Iowa,  352 
40  N.  Y.  Sup.  Ct.  501 ;  Hamm  v.  Commonwealth  v.  Roxbury,  9  Gray, 
San  Francisco,   17  Fed.  Rep.   119;  493,   and  n.   525;   Hall  v.   Lund,   1 
Stone  V.  Clark,  1  Met.  378,  35  Am.  Hurl.  &  C.  684 ;  Roberts  v.  Roberts, 
Dec.  370.  55  N.  Y.  275. 

2  Pollard  V.  Maddox,  28  Ala.  325 ;  8  Stanley  v.  Green,  12  Cal.  148. 
Richardson  v.  Palmer,  38  N.  H.  *  Messer  v.  Oestreich,  52  Wis. 
218;  Dunklee  v.  Wilton  R.  R.  Co.,  684.  See,  also,  Whitney  v.  Robin- 
24  N.  H.  489;  Moore  v.  Griffin,  22  son,  53  Wis.  309.  A  deed  which 
Me.  350;  Abbott  v.  Abbott,  51  Me.  exhibits  on  its  face  its  own  in- 
581 ;  Commonwealth  v.  Roxbury,  9  validity  cannot  be  made  the  basis 
Gray,  493;  Stanley  v.  Green,  12  Cal.  of  an  action:  Welton  v.  Palmer 
148.     And  see  Adams  v.  Frothing-  39  Cal.  456. 

ham,  3  Mass.  352,  3  Am.  Dec.  151; 


1578  THE    LAW    OF   DEEDS.  [CITAP.    XXV. 

that  a  contrary  construction  should  be  given.^  If  it  appears 
that  the  parties  to  a  deed  have  considered  that  a  permanent 
easement  of  a.  private  way  was  granted  to  the  owner  of  a 
tract  of  land,  and  such  a  construction  is  consistent  with  the 
terms  of  the  deed,  that  construction  will  be  followed.'  Not 
only  may  the  court  consider  the  condition  of  the  parties  at  the 
time  the  deed  was  executed,  but  even  more  strongly  may  take 
into  consideration  what  the  parties  themselves,  subsequently 
to  the  conveyance,  have  done  for  the  purpose  of  carrying  out 
the  contract  as  they  understood  it,"'  and  the  best  test  of  the 
intention  of  the  parties  may  be  supplied  by  the  construction 
which  they  have  placed  on  the  restrictions  in  a  deed  by  their 
conduct  and  acquiescence.®  Contemporaneous  construction 
may  determine  the  intent  of  the  parties  as  to  the  boundaries 
of  the  land  conveyed.®  But  such  construction  is  available  only 
in  case  of  doubtful  provisions  and  cannot  be  used  to  defeat  the 
definite  and  certain  language  of  the  deed,  or  in  cases  where 
settled  rules  of  construction  would  be  disregarded.^  The  prin- 
ciple of  estoppel  is  often  associated  with  that  of  practical  con- 
struction as  where  a  railway  company  having  a  deed  for  a 
right  of  way  took  possession  of  a  strip  of  land  as  such  right 

SDakin  v.  Savage,  172  Mass.  23,  Electric   Co.,   101    Me.   198,  63  Atl. 

51  N.  E.  186;  Stevenson  v.  Erskine,  915;     Fullagar    v.     Stockdale,     138 

99  Mass.  367;  Inhabitants  of  Cam-  Mich.  363,  101  N.  W.  576;  Jacoby 

bridge  v.  Inhabitants  of  Lexington,  v.  Nichols,  23  Ky.  L.  Rep.  205,  62 

34  Mass.   (17  Pick.)  222;  Stone  v.  S.  W.  734;  Hoag  v.  Place,  93  Mich. 

Clark,  42   Mass.    (1   Met.)    378,  35  450,  18  L.R.A.  39,  53  N.  W.  617. 

Am.   Dec.  370;    Mann  v.   Dunham,  ^  Neff    v.    Pennsylvania    R.    Co., 

71    Mass.    (5   Gray)    511;   Lovejoy  202  Pa.  371,  51  Atl.  1038. 

V.  Lovett,   124  Mass.  270;   Neff  v.  ''Carter  v.   Foster,   145   Mo.  383, 

Pennsylvania  R.   Co.,  202   Pa.  371,  47  S.  W.  6. 

51    At).    1038;    Wolfe   v.    Dyer,    95  « Murray    v.    Weston,    51    N.    Y. 

Mo.   545,   8   S.   W.   551;    Creed   v.  Supp.    1006,   23   App.   Div.   623. 

Henkel,  18  Ohio  Cir.  C.  883;  Gib-  ^Town  of   Como  v.    Pointer,  87 

ney  v.  Fitzsimmons,  45  W.  Va.  334,  Miss.   712,  40  So.   260. 

32  S.  E.  189;  Montfort  v.  Stevens,  l  Oakland  Woolen  Co.  v.   Union 

68  Mich.  61,  35  N.  W.  827;  Oak-  Gas  &   Electric   Co.,   101    Me.    198; 

land  Woolen  Co.  v.  Union  Gas  &  63  AtL  915. 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1579 

of  way  and  with  the  owner's  knowledge  and  acquiescence  con- 
structed its  road.  In  such  a  case  a  practical  construction  was 
given  to  the  grant  by  the  election  of  the  railway  company  and 
the  acquiescence  of  the  grantor,  and  where  the  railroad  had 
been  in  operation  for  several  years  on  the  line  selected,  this 
construction  should  not  be  disregarded.^  But,  where  a  city 
executes  a  deed  containing  a  special  covenant  that  if  it  should 
fail  to  give  title  and  possession  to  the  whole  of  the  land  con- 
veyed, the  grantee  within  the  limitation  of  a  year  might  re- 
convey  and  be  entitled  to  a  return  of  the  purchase  price,  the 
fact,  that  the  grantee  had  conferred  with  the  city  officials  con- 
cerning the  nature  of  the  property  for  the  purposes  of  tax- 
ation, and  as  to  street  crossings,  and  also  with  a  railroad  com- 
pany that  had  tracks  over  the  land,  all  these  negotiations,  how- 
ever, failing,  did  not  give  the  deed  such  a  practical  construc- 
tion as  to  make  the  property  conveyed  subject  to  the  rights  of 
the  railroad  company  or  on  account  of  these  rights,  to  waive 
the  grantee's  rights  under  the  covenants  in  the  deed.^ 

§  852.  Election  of  grantee. — Where  a  deed  may  op- 
erate in  two  different  ways,  the  grantee  may  elect  as  to  which 
one  of  the  ways  it  shall  operate.  This  is  but  the  statement  in 
another  form  that  the  deed  shall  be  construed  most  strongly 
against  the  grantor,  or  at  least  a  consequence  of  this  rule. 
"Where  a  deed  may  inure  in  different  ways,  the  grantee  shall 
have  his  election  which  way  to  take  it.  An  exception  in  a  deed 
is  always  to  be  taken  most  favorably  for  the  grantee;  and  if  it 
be  not  set  down  and  described  with  certainty,  the  grantee  shall 

2  Deckson  v.   St.  Louis  &  K.   R.  ^  Pryor    v.    City    of    New    York, 

Co.,  168  Mo.  90,  67  S,  W.  642.    For  197  N.  Y.  123,  90  N.  E.  423.     The 

other  cases  involving  practical  con-  contemporaneous     construction     of 

struction,  see  Farnham  v.  Thomp-  the  parties  as  shown  by  the  giving 

kins,    171    111.    519,   49    N.    E.    568;  and  taking  of  possession  will  show 

Kamer  v.  Bryant,   103  Ky.  723,  46  their  intent.     In  re  City  of  Seattle, 

S.  W.  14;  Usher  v.  Raymond  Skale  52  Wash.  588,  100  Pac.  1013. 
Co.,   163   Mass.   1,  39  N.  E.  416. 


1580  THE    LAW    OF    DEEDS.  [CHAP.    XXV. 

have  the  benefit  of  the  defect."  *  "The  general  rule  is,  that 
of  everything  uncertain  which  is  granted,  election  remains  to 
him  to  whose  benefit  the  grant  was  made  to  make  the  same 
certain."  ^  But  where  a  grantor  conveyed  "a  certain  lot  of 
land  situate  on  my  home  farm  in  Winslow,  and  on  the  west 
side  of  the  road  leading  to  Augusta,  to  be  selected  by  said 
Grover  (the  grantee)  or  his  assigns,  anywhere  on  my  said 
farm  west  of  said  road,  and  if  the  location  of  the  lot  of  land 
should  be  at  a  distance  from  said  road,  a  good  and  sufficient 
passageway  from  said  road  to  the  place  where  said  lot  may 
be  selected,  and  never  obstructed  by  me  or  my  heirs  or  as- 
signs, the  said  lot  to  contain  one  acre  in  such  shape  as  said 
Grover  or  his  assigns  may  choose,  all  to  be  according  to  my 
bond  to  John  Reed,  of  Clinton,  dated  Oct.,  1836,  reference 
thereto  being  had,  will  fully  appear,  said  one  acres  is  supposed 
to  contain  a  ledge  of  limestone  or  marble,"  and  at  the  time 
of  the  execution  of  the  deed,  there  was  upon  the  land  a  ledge 
of  limestone  or  marble,  and  at  a  distance  from  the  ledge,  a 
dwelling  house,  barn,  and  other  buildings,  it  was  held  that 
the  grantee  was  not  entitled  to  locate  his  acre  in  such  a  man- 
ner as  to  include  a  ledge  of  limestone  or  marble,  and  thence  to 
run  a  narrow  strip  of  land  to  the  buildings,  and  embrace  with- 
in his  acre  lot  the  land  on  which  the  buildings  were  erected.' 

*  Jackson  v.  Myers,  3  Johns.  388,  veyancing,  403;  Pollard  v.  Maddox, 

3  Am.   Dec.   500,  per   Kent,   C.   J.  28  Ala.  321. 

See,   also,   Esty   v.   Baker,   SO   Me.  ^  Grover   v.   Drummond,   25    Me. 

331,   79   Am.   Dec.   616;    Melvin  v.  185.    A  deed  is  conclusive  evidence 

Proprietors   of   Locks,   5    Met.   27,  of  the  contract,  so  far  as  the  in- 

38  Am.  Dec.  384.  strument  is  intended  to  pass  or  ex- 

5  Armstrong   v.    Mudd,    10    Mon.  tinguish  a  right,  and  concludes  the 

B.  144,  50  Am.  Dec.  545 ;  Vin.  Abr.  parties ;  but  the   deed   is   not  con- 

vol.    14,  p.  49.     See,  also,  Jackson  elusive  evidence  as  to  facts  acknowl- 

V.  Blodgett,  16  Johns.  172 ;  Jackson  edged,  such  as  the  date,  payment  of 

V.  Gardner,  8  Johns.  394 ;  2  Hilliard  consideration,  etc. :  Rhine  v.  Ellen, 

on    Real    Prop.    (2d    ed.)    327;    2  36   Gal.   362.     The   recital   of   col- 

Greenl.   Cruise  on  Real  Prop.  605;  lateral  facts  in  a  deed  not  essential 

Willard  on  Real   Estate   and   Con-  to    its    validity    does    not    estop    a 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  '1581 

§  853.  Passing  present  interest  with  other  provisions 
to  take  effect  upon  death  of  grantor. — We  have  already 
discussed  very  fully  the  effect  of  instruments  in  the  form  of 
absolute  deeds  which  were  not  to  take  effect  until  after  the 
death  of  the  grantor.'''  But  the  deed  may  pass  a  present  inter- 
est in  the  land  to  the  grantee  for  life,  and  may  also  contain 
provisions  to  take  effect  by  way  of  contingent  remainder,  up- 
on the  grantor's  death,  during  the  life  of  the  grantee.  In 
such  a  case  the  question  would  arise  whether  the  instrument 
is  to  be  considered  as  a  conveyance,  or  is  to  be  deemed  of  a 
testamentary  character  only.  The  rule  is,  that  where  the  deed 
passes  a  present  interest,  such  contingent  provisions  do  not 
convert  it  into  a  will.  The  grantor  cannot  revoke  such  limi- 
tations, nor  do  they  become  void  by  his  subsequent  marriage.' 
Where  land  is  conveyed  to  a  person,  the  deed  containing  the 
clause,  "but  should  he  die  without  a  wife,  or  children,  or 
child,  then  said  land  shall  pass  according  to  the  statutes  of 
descent  and  distribution  of  the  State,"  then  in  force,  those  who 
are  the  surviving  heirs  of  the  grantee,  in  case  he  dies  without 
having  married,  take  by  purchase  under  the  deed  and  not  by 
descent  or  inheritance  from  him.*     Where  a  person  intends 

party  from  denying  them :  Inger-  tice  Paxton,  "conveying  and  set- 
soil  V.  Truebody,  40  Cal.  603.  Par-  tling  property  contains  provisions 
ties  exchanged  lands,  and  executed  which  become  operative  only  after 
deeds.  Each  deed  contained  a  clause  the  death  of  the  grantor  or  settler, 
of  general  warranty,  and  also  a  but  where  a  present  interest  passes 
stipulation  that  in  case  the  grantee  to  a  trustee  or  the  grantee,  it  has 
was  ousted,  the  deed  should  be  ^^^^^  ^^^^  supposed  that  such  in- 
void,  and  he  should  have  the  r.ght  .j^uments  were  of  a  testamentary 
to    re-enter,   possess,   and   own   the  ^i,.,,.^^^^..."     vi  nir  .^     ^ 

,     .         .  ,  T.         t.  ij  character:       Brown     v.     Mattocks, 

land  given  m  exchange.   It  was  held  .^  c,    i^      a    j  r-u     j. 

,  ,  ,  .11  lUJ  Pa.  bt.  16.     And  see  Chandler 

that  when  a  party  was  ousted,  he  cc  /-  i    o^-?     n      /-      , 

had  the  right  to  elect  whether  he  ^-   ^^"^^.^'■'  ^^  ^^^^f ;  Rexford 

would  re-enter  or  rely  on  his  war-  v.  Marquis,  7  Lans.  248. 
ranty :      Pugh    v.    Mays,    60    Tex.  ^  Robinson  v.  Le  Grand,  65  Ala. 

■j^Qj  111;    Phillips    V.    Thomas    Lumber 

7  See  §§  279-283.  ^°-'  ^^  ^y-  ^^'  ^^  ^"^-   S^-  ^^P- 

8  Brown  v.  Mattocks,  103  Pa.  St.       367;    Cable    v.    Cable,    146    Pa.    St. 
16.     "Many  deeds,"  said   Mr.  Jus-      451;    Seals   v.    Pierce,  83   Ga.   787, 


1582 


THE    LAW    OF    DEEDS. 


[chap.    XXV. 


that  a  deed  shall  take  effect  on  execution,  adopting  that  mode 
of  distributing  his  property  rather  than  by  will,  the  deed  is  an 
effectual  conveyance.* 

§  854.  No  present  interest  passing. — But  where  no 
present  interest  passes  by  the  deed,  the  rule  is  altogether  dif- 
ferent. The  instrument  then,  while  in  form  a  deed,  is  in  sub- 
stance a  will,  possessing  all  the  incidents  of  a  will.  Thus,  a 
deed  in  the  usual  form,  containing  the  clauses,  "to  commence 
after  the  death  of  both  of  said  grantors,"  and  also,  "it  is  here- 
by understood  and  agreed  between  the  grantors  and  the  gran- 
tee that  the  grantee  shall  have  no  interest  in  the  said  premises 
as  long  as  the  grantors  or  either  of  them  shall  live,"  does  not 
create  a  present  interest  to  commence  at  a  future  day,  but  is 
testamentary  in  character.  Notwithstanding  the  payment  of  a 
valuable  consideration,  the  grantors  have  the  right  of  revoca- 
tion at  their  option.^    So,  a  deed  made  upon  the  express  con- 


20  Am.  St.  Rep.  344 ;  Wall  v.  Wall, 
30  Miss.  91,  64  Am.  Dec.  147;  White 
V.  Hopkins,  80  Ga.  154. 

1  Brown  v.  Atwater,  25  Minn.  520. 
But  where  he  reserves  the  power 
to  reinvest  the  title  in  himself  at 
his  pleasure,  there  is  really  no  de- 
livery, and  the  deed  does  not  pass 
title:  Miller  v.  Lullman,  81  Mo. 
311.  But  a  habendum  clause  may 
have  the  effect  of  limiting  the  es- 
tate conveyed  so  that  the  title  shall 
revert  to  the  grantor  in  case  he 
survives  the  grantee,  and  shall  vest 
absolutely  in  the  grantee  in  the 
event  of  the  grantor's  prior  death : 
Bassett  v.  Endlong,  77  Mich.  338, 
18  Am.  St.  Rep.  404.  See  section 
215,  ante. 

2  Leaver  v.  Gauss,  62  Iowa,  314. 
Said  the  court,  per  Adams,  J :  "We 
do  not  forget  that  the  statute  pro- 
vides that  'estates  may  be  created 


to  commence  at  a  future  day :' 
Code,  §  1933.  But  we  have  to  say, 
that  any  language  employed  by  the 
grantor,  which  would  be  sufficient 
to  create  an  estate  to  commence  at 
a  future  day,  would,  in  the  nature 
of  the  case,  give  a  present  interest 
in  the  property.  The  estate  would 
stand  created,  and  the  enjoyment 
postponed.  A  declaration  that  the 
grantee  takes  no  interest  during  the 
life  of  the  grantor  is  equivalent,  we 
think,  to  a  declaration  that  no  estate 
is  created.  The  instrument,  it  is 
true,  evinces  an  intention  favorable 
to  the  grantee,  but  that  intention  is, 
in  substance,  only  testamentary,  and 
is,  of  course,  subject  to  revocation, 
if,  indeed,  a  revocation  is  needed 
to  prevent  it  from  becoming 
operative.  The  object  of  the  de- 
fendant's   averment   that   a   valua- 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION. 


1583 


dition  that  "the  conveyance  of  land  herein  named  shall  be  and 
continue  the  property  of  the  first  party  during  his  lifetime,  and 
the  remainder  to  said  second  party  immediately  at  the  death 
of  said  first  party,  but  in  the  event  of  the  death  of  the  second 
party  before  the  said  first  party,  then  the  estate  herein  shall 
go  to  said  first  party  as  before,"  is  a  mere  devise,  which  may 
be  revoked  at  will,  and  conveys  no  title.^  And  if,  in  such  a 
case,  the  grantor  promise  to  pay  the  grantee  a  sum  of  money 
to  reconvey  the  land,  the  promise  is  without  consideration.* 


§  854a.  Application  of  the  principle. — A  present  in- 
terest must  pass  by  the  deed,  to  render  it  operative  as  a  con- 
veyance, although  the  possession  or  enjoyment  of  the  estate 
may  be  postponed.^  If  a  deed  contains  a  clause  that  "in  no 
event  is  this  deed  to  go  into  effect  until  after  my  death"  it  is 
not  operative  as  a  deed.^    So  a  deed  which  declares  "said  deed 


ble  consideration  passed,  was  to 
give  the  instrument  a  present 
operation  as  binding  the  property. 
It  was  of  no  consequence  in  any 
other  respect.  If  the  court  below 
had  held  that  it  was  proper  to  plead 
and  prove  such  fact,  it  would  have 
held,  virtually,  that  an  express  pro- 
vision of  the  instrument  could  be 
overturned.  We  can  conceive  that 
a  valuable  consideration  might  pass 
as  an  inducement  to  the  person  re- 
ceiving it  to  make  a  devise.  If  a 
devise  in  form  should  be  made  un- 
der such  inducement,  the  instru- 
ment by  which  it  should  be  made 
would  still  be  testamentary,  and 
being    such,    would    be    revocable." 

8  Bigley  v.  Souvey,  45  Mich.  370. 

*Bigley  v.  Souvey,  45  Mich.  370. 
For  cases  where  the  question  arose 
whether  an  instrument  should  be 
treated  as  a  deed  or  a  will,  see 
§§  309,  309a,  and  notes  ante. 


*  McGarigle  v.  R.  C.  Orphan  Asy- 
lum, 145  Cal.  695,  1  L.R.A.(N.S.) 
315.  In  that  case,  the  deed  con- 
veyed a  life  estate  to  the  grantee 
and  after  the  description  of  the 
property  conveyed  contained  this 
clause :  "It  is  the  purpose  of  the 
party  of  the  first  part  by  this  deed, 
that  after  the  death  of  the  said 
party  of  the  second  part,  the  said 
described  lands  shall  become  and  be 
the  property  of  the  Roman  Catholic 
Girls'  Orphan  Asylum  of  San  Fran- 
cisco, State  of  California."  The 
court  held  that  the  deed  contained 
no  operative  words  of  grant  to  the 
asylum  and  that  as  the  reversion 
remained  in  the  grantor,  a  transfer 
to  the  orphan  asylum  would  require 
citlier  a  future  conveyance  or  a 
testamentary  disposition. 

6  Donald  v.  Nesbit,  89  Ga.  290,  15 
S.  E.  367.  But  if  the  habendum 
clause  is  to  hold  the  property  de- 


1584  THE    LAW    OF   DEEDS.  [CHAP.    XXV. 

of  gift  to  be  of  full  effect  at  my  death,"  is  to  be  treated  as  a  tes- 
tamentary disposition,  notwithstanding,  it  may  possess  the  gen- 
eral form  of  a  deed  J  So,  is  an  instrument  to  be  deemed  testa- 
mentary in  character  which  states  that  the  grantee  shall  hold 
the  lands  described,  and  also  certain  personal  property  after 
the  grantor's  death,  after  the  payment  of  the  debts  of  the 
grantor  and  his  burial  expenses,  and  which  also  states  that  all 
the  other  property  of  the  grantor  shall  be  divided  among  others 
described  as  "heirs."'  Still,  it  may  be  observed  that  a  con- 
veyance which  declares  that  it  shall  take  effect  and  be  in 
full  force  after  the  grantor's  death  has  been  held  operative 
as  a  deed.^  A  present  interest  is  conveyed  by  a  deed  in 
which  the  maker  declares  that  he  excepts  and  reserves 
from  the  grant  "all  the  estate  in  said  lands,  and  the  use  and 
occupation,  rents  and  proceeds  thereof,  unto  himself  during 
his  natural  life."  ^  Although  a  deed  may  contain  a  declaration 
that  it  is  not  to  become  eff.ective  until  the  death  of  the  grant- 
or, yet  if  it  contains  words  of  present  grant  it  operates  as  a 
present  conveyance.^  A  present  estate  is  likewise  conveyed  by 
a  deed  although  accompanied  by  an  agreement,  that  all  of  the 
property  conveyed  should  be  under  the  control  and  direction 
of  the  grantor  during  his  life,  that  without  his  written  con- 
sent the  grantees  should  not  sell  during  his  lifetime  any  por- 
tion of  the  property  described;  that  the  grantor  should  retain 
the  right  to  sell  and  convey  as  if  the  deed  had  not  been  exe- 
cuted and  that  when  requested  by  the  grantor,  the  grantee 
should  sign  all  deeds  for  the  property.^  An  instrument  can- 
not be  said  to  be  a  deed  in  which  the  grantor  makes  his  wife, 

scribed   to    the    grantee    "his    heirs  ^  Kelley  v.  Shimmer,  152  Ind.  290, 

and  assigns  to  be  his  at  my  death,  53  N.  E.  253. 

and   the   death    of   my   wife,"   the  1  Gates  v.  Gates,  135  Ind.  277,  34 

conveyance   is   operative  to  convey  N.  E.  957. 

title:  Wynn  v.  Wynn,  112  Ga.  214,  2  Hunt   v.   Hunt,    119  Ky.  39,  26 

37  S.  E.  378.  Ky.  L.  Rep.  973,  68  L.R.A.  180,  82 

'Sperber  v.  Balster,  66  Ga.  317.  S.    W.   998. 

8  Barnes   v.    Stephenson,    107   Ga.  3  Piirand  v.  Higgins,  67  Kan.  110, 

441,  33  S.  E.  399.  72  Pac.  567. 


CHAP.    XXV.]       PRINCIPLES   OF    CONSTRUCTION.  1585 

the  sole  owner  in  her  own  right  "of  all  of  our  property,  wheth- 
er real  or  personal  or  wheresoever  situated  that  we  may  be 
possessed  of,"  and  in  which  the  grantor  declares  that  he  in- 
vests her  "with  full  powers  and  rights  to  receive,  receipt  for, 
sell,  dispose  of,  and  give  title  to  as  valid  as  if  done  by  both 
of  us"  in  the  grantor's  lifetime.*  A  present  title,  however, 
passes  by  a  deed  providing  that  during  the  grantor's  life  he 
should  remain  in  full  possession  and  control  of  the  property, 
that  an  annuity  should  be  paid  by  the  grantee  to  the  grantor, 
and  that  upon  the  grantor's  death,  "the  title  shall  be  and  is 
hereby  declared  to  be"  in  the  grantee.^  So  does  a  deed  pass 
a  present  estate  which  declares  it  to  be  a  condition  of  the  deed 
that  as  to  the  party  of  the  second  part  "this  land  shall  not  be 
encumbered  in  any  way  or  this  deed  shall  be  void"  and  further 
that  the  grantor  "is  to  hold  said  property  his  lifetime."  ^  But 
no  present  estate  passes  by  a  conveyance  declaring  that  it  is  "to 
tal<:e  effect  and  be  in  full  force  from  and  after  my  death."  "^ 
A  reservation  in  a  deed  of  conditions  affecting  the  use  of  the 
property  during  the  lifetime  of  the  grantor  will  not  render  an 
instrument  testamentary  if  it  contains  words  of  present  grant.' 
If  on  the  other  hand,  the  deed  contains  a  condition  that  the 
grantor  shall  retain  it  in  his  possession  until  his  death,  it  does 
not  convey  a  present  estate.^  Nor,  will  an  instrument  be 
considered  a  deed,  although  it  may  be  in  the  form  of  one,  if  it 
provides  that  it  shall  not  take  effect  until  after  the  grantor's 
death  and  contains  a  direction  that  the  grantee  should  pay 

*Tuttle  V.  Raish,  116  Iowa,  331,  ^  pinkham  v.   Pinkham,   55   Neb. 

90  N.  W.  66.     An  instrument  is  of  •  729,    76    N.    W.    441.      See,    also, 

a  testamentary  character  which  pro-  Murphy   v.    Gabbert,    166   Mo.    596, 

vides  that  after  the  grantor's  death  89    Am.    St.    Rep.    736,    66    S.    W. 

the  title  to  the   land  shall  vest  in  536. 

the  grantee.     Reel  v.  Hazelton,  37  8  Kelly  v.  Parker,  181  111.  49,  54 

Kan.  321,  15  Pac.  177.  N.  E.  615. 

5  Hitchcock  V.  Simpkins,  99  Mich.  9  Griffin  v.  Mcintosh,  176  Mo.  392, 
198,  58  N.  W.  47.  75  S.  W.  677. 

6  Bevins  v.  Phillips,  6  Kan.  App. 
324,  51  Pac.  59. 

Deeds,  Vol.  n.— 100 


1586  THE    LAW    OF   DEEDS.  [CHAP.   XXV. 

all  of  the  debts  of  the  grantor  and  should  receive  only  the  re- 
mainder of  the  latter's  property.^  But  the  fact  that  an  instru- 
ment conveying  land  to  persons  as  tenants  in  common,  con- 
tains a  clause  that  the  land  is  to  be  equally  divided  among  them 
upon  the  grantor's  death  "and  after  the  payment  of  all  my 
funeral  and  burial  expenses  by  them  fully  settled,  and  they  are 
to  pay  all  taxes  and  other  expenses  of  repairs  and  improve- 
ments on  the  same  during  my  natural  life  and  then  the  title 
to  vest  in  them  absolutely,"  will  not  prevent  it  from  operating 
as  a  deed  conveying  title.^  A  deed  is  effective  to  convey  a  pres- 
ent interest  although  it  provides  that  the  grantee  is  to  live 
on  the  land  conveyed  and  have  control  of  it  until  her  death 
when  the  property  is  to  pass  to  others,  and  although  it  provides 
that  it  is  not  to  take  effect  until  the  grantor's  death,  and  he 
"is  to  have  and  keep  full  possession  of  said  farm  during  his 
life,  and  to  have  all  proceeds  of  said  farm  until  his  death," 
and  if  the  remainderman  "should  get  into  debt,  or  anything 
that  would  sell  the  land,  then  at  the  time  of  sale  it  is  to  go 
to  his  children."  '  A  present  interest  is  conveyed  by  a  deed 
which  provides  that  the  grantor  shall  have  the  use  of  the  land 
during  his  natural  life  although  it  contains  the  clause,  "the  in- 
tention being  that  this  deed  shall  not  be  in  force  or  take  effect 
until  after  the  death  of  the  grantor."  * 

§  855.  Tendency  to  uphold  deed.'' — It  seems  to  be  im- 
possible to  lay  down  an  invariable  rule  which  will  apply  to  all 
cases.  There  is,  it  is  to  be  observed,  however,  a  tendency  in 
the  modern  decisions  to  uphold  conveyances  when  not  clearly 
repugnant  to  some  well-defined  rule  of  law.    Some  cases  occur 

1  Cunningham  v.  Davis,  62  Miss.  *  Saunders  v.  Saunders,  115  Iowa, 
366.  275,  88  N.  W.  329. 

2  Spencer  v.  Robbins,  106  Ind.  584,  »  This   section   is   cited    with   ap- 
5  N.  E.  726.  proval  in  Faivre  v.  Daley,  93  Cal. 

3  Phillips  V.  Thomas  Lumber  Co..  671. 
94  Ky.  445,  42  Am,  St  367,  22  S. 

W.  652. 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1587 

when  the  mind  may  incline  to  one  side  or  to  the  other.  As 
illustrating  this  tendency  to  effectuate  the  intention  of  a  grant- 
or, we  may  select  an  instance  where  a  deed,  after  granting 
certain  land  to  the  grantor's  wife,  thus  proceeded  :  "This  deed 
is  not  to  take  effect  and  operate  as  a  conveyance  until  my  de- 
cease, and  in  case  I  shall  survive  my  said  wife,  this  deed  is  not 
to  be  operative  as  a  conveyance,  it  being  the  sole  purpose  and 
object  of  this  deed  to  make  a  provision  for  the  support  of  my 
said  wife  if  she  shall  survive  me,  and  if  she  shall  survive  me, 
then,  and  in  that  event  only,  this  deed  shall  be  operative  to 
convey  to  my  said  wife  said  premises  in  fee  simple.  Neither 
I,  the  grantor,  nor  the  said  Clarissa  B.  Abbott,  the  grantee, 
shall  convey  the  above  premises,  while  we  both  live,  without 
our  mutual  consent.  If  I,  the  grantor,  shall  abandon  or  desert 
my  said  wife,  then  she  shall  have  the  sole  use  and  income  and 
control  of  said  premises  during  her  life."  Then  followed  the 
usual  hahetidum,  and  also  covenants  of  seisin  against  encum- 
brances and  warranty.  The  court  decided  that  the  deed  should 
be  upheld  as  creating  a  feoffment  to  commence  in  futuro;  that 
it  was  more  than  a  devise  in  a  will  because  it  conveyed  to  the 
grantee  a  contingent  right,  which  could  not  be  taken  from 
him.®  It  was  contended  in  the  case  just  cited  that  to  recognize 
the  validity  of  the  deed  would  be  to  contravene  principles  of 
public  policy,  because,  it  was  claimed,  the  deed  was  an  attempt 
to  evade  the  statutes  regulating  the  making  and  execution  of 
wills.  To  this  argument,  Mr.  Justice  Barrows,  in  delivering 
the  opinion  of  the  court,  made  this  answer:  "But  the  instru- 
ment was  duly  executed  by  the  defendant's  testator,  a  man 
capable  of  contracting,  and  having  an  absolute  power  of  dis- 
position over  his  homestead  farm,  subject  only  to  the  rights  of 
his  existing  creditors.  It  was  duly  recorded,  so  that  all  the 
world  might  know  what  disposition  he  had  made  of  a  certain 
interest  in  it,  and  what  was  left  in  himself.  If  operative  at 
all,  it  operated  differently  from  a  will.     A  will  is  ambulatory, 

•Abbott  V.  Holway,  72  Me.  29a 


1588  THE    LAW    OF    DEEDS.  [CHAP.    XXV. 

revocable.  Whatever  passed  to  the  wife  by  this  instrument  be- 
came irrevocably  hers.  We  fail  to  perceive  that  any  principle 
of  public  policy,  or  anything  in  the  statute  of  wills,  calls  upon 
us  to  restrict  the  power  of  the  owner  of  property,  unencum- 
bered by  debt,  to  make  gifts  of  the  same,  and  to  qualify  those 
gifts  as  he  pleases,  so  far  as  the  nature  and  extent  of  them  are 
concerned.  Public  policy,  in  this  country,  has  been  supposed 
rather  to  favor  the  facilitation  of  transfers  of  title,  and  the 
alienation  of  estates,  and  the  exercise  of  the  most  ample  power 
over  property  by  its  owner  that  is  consistent  with  good  faith 
and  fair  dealing.  The  selfish  principle  may  fairly  be  supposed 
to  be,  in  all  but  exceptional  cases,  strong  enough  to  prevent 
too  lavish  a  distribution  of  a  man's  property  by  way  of  gift."  ' 
Another  instance  indicating  the  same  tendency  may  be  given. 
A  father  gave  and  granted  to  his  daughter,  in  consideration 
of  love  and  affection,  "all  that  tract  of  land  constituting  his 
residence  in  said  county,  to  have  and  to  hold  the  aforesaid 
premises  after  his  death,  during  her  natural  life."  The  grant- 
or reserved  the  right  of  controlling  the  premises  during  his 
lifetime,  and  stated  in  the  instrument  his  desire  that  at  his 
daughter's  death  the  property  should  be  "sold  and  divided  be- 
tween the  balance  of  his  children."  The  court  said  that  it  did 
not  know  what  the  instrument  was,  but  finally  held  it  to  be  a 

^  Abbott  V.  Hoiway,  72  Me.  298,  Am.  St.  Rep.  802.    If  a  sister,  after 

304.     See  as  to  effect  of  the  stat-  the   execution   of   such    an   instru- 

ute  of  uses  upon  the  statute  regu-  ment,  signs  a  document  to  the  ef- 

lating  conveyances  of  real  estate  in  feet    that    she    will    not    make    any 

Maine,  Wyman  v.   Brown,  50  Me.  claim   on   the   property,    she   is   es- 

139.     An  instrument  declaring  that  topped    from    subsequently    assert- 

it  is   a  will,  but  containing  words  ing  any  claim  thereto :     Evenson  v. 

indicating  an  intention  to  transfer  Webster,   3    S.   Dak.   382,   44  Am. 

the  estate  of  the  grantor,  and  con-  St.  Rep.  302.     Where  the  intention 

taining   the    names    of    the  parties,  of  the  parties  appears  upon  the  face 

description    of    the    property    and  of  the  deed,  effect  should  be  given 

other  formal  essentials  of  a  deed,  to   it   regardless   of   technical  rules 

is  a  sufificient  conveyance :     Even-  of  construction :     Faivre  v.  Daley, 

son  V.  Webster,  3  S.  Dak,  382,  44  93  Cal.  664. 


CHAP.    XXV.]       PRINCIPLES   OF    CONSTRUCTION. 


1589 


deed.'     Its  language  on  the  construction  of  the  mstrument 
was :    "It  is  not  easy  to  say  what  this  instrument  is.     It  has 
the  form  and  general  requisites  of  a  deed,  including  attesta- 
tion.    Construed  as  a  deed,  it  would  have  validity,  and  take 
effect ;  construed  as  a  will,  it  would  be  a  nullity,  as  it  has  but 
two  witnesses,  and  the  law  requires  three.    We  do  not  certamly 
know  what  it  is.     Its  construction  is  very  doubtful.     Taking 
all  its  terms  together,  it  would  seem  that  the  grantor  intended 
to  pass  something  presently,  for  he  defines  what  it  was  his  pur- 
pose to  reserve,  namely,  the  control  during  his  own  life.     By 
control  he  most  probably  meant  possession,  use,  and  enjoy- 
ment ;  not  absolute  title,  with  power  of  disposition  beyond  the 
term  of  his  own  life.     To  hold  the  instrument  to  be  a  will 
would  be  to  make  the  reservation  altogether  idle  and  useless. 
By  holding  it  to  be  a  deed,  effect  can  be  given  to  the  reserva- 
tion as  a  part  of  the  instrument  to  all  the  words,  without  re- 
jecting any  as  superfluous.     This,  we  think,  is  the  safer  and 
better  construction."  *    It  has  been  held,  however,  that  a  grant- 
or may  in  his  deed  reserve  the  power  to  revoke  the  grant. 
Such  a  condition  is  not  contrary  to  public  policy.     The  deed 
gives  notice  to  the  creditors  of  the  grantee  of  the  reservation 
of  the  power  of  revocation,  and  it  cannot  be  attacked  on  the 
ground  that  it  enables  the  parties  to  defeat  the  rights  of  the 
creditors.^    If  the  grantor  has  presented  as  a  part  of  the  mode 
of  revocation  some  formality  not  recognized  by  law  as  essen- 

•  Dismukes    v.    Parrott,    56    Ga.  in  some  other  form  so  as  to  ef- 

5J3  fectuate  the   purpose,   which,   con- 

•Dismukes     v.     Parrott,     supra.  sidering  the  whole  instrument  and 

That  the  expressions  of  the  grant-  the  circumstances  and  condition  of 

or's  motive  cannot  control  the  legal  the  title,  appears  to  have  been  the 

effect   of   a   deed,   see   §   838,   and  intention  of  the  parties, 

notes,  ante.     So  in  Cross  v.  Weare  ^  RickeUs   v.   Louisville    etc.   Ry. 

Commission    Co.,    153    111.   499,    46  Co..  91  Ky.  221.  11  L.R.A.  422,  34 

Am.  St.  Rep.  902,  it  was  held  that  Am.  St.  Rep.  178.     See,  also,  Nich- 

where  a  conveyance  cannot  operate  ols  v.  Emery,  109  Cal.  323. 
as  tlie  kind  intended,  it  may  operate 


1590  THE    LAW    OF    DEEDS.  [CHAP.    XXV. 

tial,  the  power  is  not  to  be  deemed  impossible  if  executed  for 
that  reason.* 

§  855a.     Deed  or  will — Some  illustrations. — We  have, 

in  the  preceding  sections,  stated  the  general  principles  by 
which  it  may  be  determined  whether  an  instrument  is  a  deed 
or  a  will.  We  have,  in  another  place,  discussed  the  question 
of  the  effect  that  delivery  will  have  in  deciding  whether  an 
instrument  should  be  treated  as  a  deed  or  a  will.*  But  it  must 
be  confessed  that  the  rules,  as  they  are  applied  by  the  courts, 
are  rather  shadowy,  and  it  is  almost  impossible  to  lay  down 
a  rule  with  which  some  well-considered  case  will  not  be  found 
to  be  in  conflict.  Mr.  Chief  Justice  Stone  has  expressed  the 
confused  condition  of  the  law  very  aptly  when  he  says : 
"There  are  few,  if  any,  questions  less  clearly  defined  in  the 
law-books  than  an  intelligible,  uniform  test  by  which  to  de- 
termine when  a  given  paper  is  a  deed  and  when  it  is  a  will. 
Deeds,  once  executed,  are  irrevocable,  unless  such  power  is 
reserved  in  the  instrument.  Wills  are  always  revocable  so  long 
as  the  testator  lives  and  retains  testamentary  capacity.  Deeds 
take  effect  by  delivery,  and  are  operative  and  binding  during 
the  life  of  the  grantor.  Wills  are  ambulatory  during  the  life 
of  the  testator,  and  have  no  effect  until  his  death.  Out  of  this 
has  grown  one  of  the  tests  of  testamentary  purpose — namely, 
that  its  operation  shall  be  posthumous.  If  this  distinction  were 
carried  into  uniform,  complete  effect,  and  if  it  were  invariably 
ruled  that  instruments  which  confer  no  actual  use,  possession, 
enjoyment,  or  usufruct  on  the  donee  or  grantee  during  the  life 
of  the  maker,  are  always  wills,  and  never  deeds,  this  would 
seem  to  be  a  simple  rule  and  easy  of  application.  The  corol- 
lary would  also  appear  to  result  naturally  and  necessarily,  that 

2Ricketts   v.   Louisville   etc.   Ry.  Am.  St.  Rep.  404,  and  §  215  ante. 

Co.,  91  Ky.  221,  11  L.R.A.  422,  34  3  §§  309,  309a.     See,  also,  §§  279- 

Am.  St.  Rep.  176.     See,  also,  Bas-  283. 
sett  V.  Budlong,  77  Mich.  338,  18 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1591 

if  the  instrument,  during  the  lifetime  of  the  maker,  secured  to 
the  grantee  any  actual  use,  possession,  enjoyment,  or  usufruct 
of  the  property,  this  would  stamp  it  irrefutably  as  a  deed. 
The  authorities,  however,  will  not  permit  us  to  declare  such 
inflexible  rule."  *  The  language  just  quoted  correctly  de- 
scribes the  contrariety  that  prevails  among  the  decisions.  The 
importance  of  the  subject,  however,  will  justify  us  in  calling  to 
the  reader's  mind  some  of  the  cases  in  Avhich  the  question 
whether  an  instrument  is  a  deed  or  a  will  was  before  the  court 
for  determination.  Where  a  deed  provided  that  it  should  go 
into  full  force  and  effect  at  the  grantor's  death,  it  was  held 
to  be  a  valid  deed,  which  conveyed  a  present  title  to  the  gran- 
tee, but  postponed  the  right  of  possession  and  use  of  the  prop- 
erty until  the  grantor's  death.^  So,  where  the  grantor  re- 
serves and  excepts  from  the  grant  "all  the  estate  in  said  lands, 
and  the  use,  occupation,  rents,  and  proceeds  thereof,  unto  him- 
self during  his  natural  life,"  a  present  interest  is  conveyed,  and 
the  deed  is  effectual.*  A  grantor  declared  in  his  deed  that  it 
was  not  to  take  effect  until  after  his  death,  and  was  "not  to  be 
recorded  until  after  my  decease,"  but  the  court  decreed  it  was 
a  valid  conveyance,  and  was  not  testamentary  in  character."' 

§  855b.  Same  subject — Further  illustrations. — An  in- 
strument will  be  declared  to  be  a  deed  where  it  contains  all 
the  terms  and  provisions  of  one,  although  it  may  contain  a 
clause  that  the  grantor  and  his  wife  are  to  retain  the  use,  bene- 
fit, and  control  of  the  land  conveyed  during  their  natural  lives. ^ 
Land  was  conveyed  by  the  owner  to  one  of  his  sons  as  trustee, 
upon  trust  to  sell  it  within  a  specified  time,  and,  after  the 
grantor's  death,  to  divide  the  proceeds  in  certain  designated 

*  Sharp  V.   Hall,  86  Ala.   110.   11  6  Bunch  v.  Nicks,  50  Ark.  367. 

Am.    St.    Rep.    28.      The    learned  « Gates  v.   Gates,  135  Ind.  272. 

justice    cites    section    983    of    this  '  Shackelton  v.  Sebree,  86  111.  616. 

treatise,  and  also  many  cases  bear-  '  Bass  v.  Bass,  52  Ga.  531. 
ing  upon   the  queetion  before   the 
court 


1592  THE  LAW  OF  DEEDS.        [CHAP.  XXV. 

proportions  to  the  grantor's  children,  and  to  invest  the  remain- 
ing part  for  the  benefit  of  another  child  of  the  grantor.  The 
grantor,  in  the  deed,  reserved  a  power  of  revoking  the  trust, 
but  remained  in  possession  of  the  land  during  his  life  with- 
out exercising  the  power  of  revocation.  The  conveyance,  it 
was  decided,  passed  immediately  a  vested  interest  to  the  trus- 
tee, in  whom  was  placed  the  whole  estate  necessary  for  the 
trust.  The  grantor,  in  effect,  retained  the  equivalent  of  a  life 
estate  during  his  own  life,  which  entitled  him  to  remain  in 
possession  of  the  land,  or  to  lease  it  and  retain  the  profits. 
Its  character  as  a  deed  was  not  changed  or  destroyed  by  the 
power  of  revocation,  nor  did  this  power  operate  to  convert 
it  into  a  testamentary  disposition  of  property.'  A  clause 
that  "the  condition  of  this  deed  is  such  that  I  hereby  reserve 
all  my  right,  title,  and  interest  in  the  aforesaid  described  pieces 
of  land,  with  all  the  buildings  thereon  during  my  natural  life," 
is  to  be  considered  as  a  reservation  creating  a  life  estate,  and 
not  as  impairing  the  efficacy  of  the  instrument  as  a  conveyance 
of  title.^  A  conveyance  is  not  converted  into  a  will  because  it 
contains  a  clause  that  "this  conveyance  to  be  put  to  record,  but 
not  to  take  effect  so  as  to  give  possession  until  after  my 
death."  ^  Although  the  deed  may  be  a  voluntary  conveyance, 
yet  if  it  conveys  to  the  grantee  a  present  interest,  but  post- 
pones the  enjoyment  of  possession,  the  grantor  cannot,  after 
its  execution,  defeat  the  title  of  the  grantee.'  Such  deeds  re- 
serving a  life  estate  in  the  grantor  are  irrevocable  after  execu- 
tion.^ A  deed  reciting  that  "the  above  obligation  to  be  of  no 
more  effect  until  after  the  death  of"  the  grantor  and  his  wife, 
"then  to  be  in  full  force,"  passes  a  present  interest  in  the  land, 
and  will  not  be  treated  as  a  will.^    So,  language  in  a  deed  that 

» Nichols  V.  Emery,  109  Cal.  323.      632;    MaUocks   v.   Brown,   103   Pa. 

1  Graves  v.  Atwood,  52  Conn.  512,      St.  16. 

52   Am.   Dec.   610.  *  White  v.  Hopkins,  80  Ga.  ,154. 

2  Rawlings  v.  McRoberts,  95  Ky.  ^  Wilson  v.  Carrico,  140  Ind.  533, 
346.                                                            49  Am.  St.  Rep.  533. 

8  McDaniels    v.    Johns,   45    Miss. 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1593 

it  is  to  take  after  the  grantor's  death,  and  not  before,  will  not 
change  its  nature,  but  will  be  construed  as  a  declaration  that 
the  grantee's  use  and  enjoyment  are  to  be  postponed  until 
the  grantor's  death. ^  The  essential  characteristic  of  a  will  is 
that  it  becomes  effective  only  upon  the  death  of  the  maker, 
and  that  by  it  he  has  divested  himself  of  no  part  of  his  estate, 
and  no  title  has  become  vested  in  any  other  person.  To  render 
the  instrument  a  deed  some  interest  must  pass  immediately, 
but  an  immediate  enjoyment  of  the  interest  conveyed  is  not 
necessary.  The  commencement  of  the  future  enjoyment  may 
be  made  dependent  upon  the  ending  of  an  existing  life  or  lives, 
or  upon  the  termination  of  some  intermediate  estate.'  A  deed 
is  valid  which  is  made  upon  the  express  provision  that  the 
grantors  may  have  and  retain  the  entire  use  and  control  of 
the  premises  so  long  as  they,  or  either  of  them,  may  live.'  The 
rule  is  that  a  present  interest  must  pass.  A  vested  right  must 
be  created,  but  the  postponement  of  the  use  or  enjoyment  of 
this  vested  right  will  not  affect  the  deed  as  a  valid  convey- 
ance.' 


§  855c.  When  a  will. — But  to  have  the  effect  of  a 
deed,  the  instrument  must  convey  a  present  interest.  If  it 
states  that  the  grantee  shall  have  no  interest  in  the  property 
so  long  as  the  grantor  shall  live,  this  essential  is  wanting,  and 

•Owen  V.  Williams,  114  Ind.  179.  Hines,  31  Ga.  720;   Wall  v.  Wall, 

7  Nichols  V.  Emery,  109  Cal.  332.  30  Miss.  91,  64  Am.  Dec.  147;  Ab- 

8  Chandler   v.    Chandler,   55    Cal.  bott  v.  Holway,  12  Me.  98;  Swails 
267.  V.  Bushart,  2  Head,  560;  Blanchard 

9Moye   V.    Kittrell,   29   Ga.   677;  v.    Morey,    56   Vt.    170;    Owen    v. 

Wilson  V.  Carrico,  140  Ind.  533,  49  Williams,    114   Ind.    179;    Meek   v. 

Am.     St     Rep.     213;     Wyman     v.  Holton,  22  Ga.  491 ;  Bunn  v.  Bunn, 

Brown,   50   Me.    139;   Dreisbach   v.  22  Ga.   472;   Dismukes   v.    Parrott, 

Serfass,   126   Pa.   St.   32,   3   L.R.A.  56  Ga.  513;  Jenkins  v.  Adcock,  5 

836;    Brown  v.   Atwater,  25   Minn.  Tex.    Civ.    App.    466;    Mitchell    v. 

520:  Webster  v.  Webster,  ZZ  N.  H.  Mitchell,  108  N.  C.  542;  Gorham  v. 

18,   66   Am.    Dec.    705;    Watson   v.  Daniels,   23    Vt.   600. 

Watson,   22   Ga,   460;   Johnson   v.  , 


1594  THE    LAW    OF    DEEDS.  [CHAP.    XXV. 

it  becomes  testamentary  in  character  and  may  be  revoked  by 
the  grantor.^  An  instrument  directing  the  beneficiary  to  pay 
the  maker's  debts  and  to  retain  the  residue  left  after  this  is 
dune,  and  providing  that  it  is  not  to  take  effect  until  the  grant- 
or's death,  although  it  may,  by  its  ow^n  language,  be  character- 
ized as  a  deed,  and  may  be  acknowledged  as  such,  will  be 
treated  as  a  testamentary  disposition  of  property,  because^  it 
passes  no  present  interest  in  the  property.^  If  a  grantor,  in 
an  instrument  purporting  to  be  a  deed,  reserves  "all  the  within- 
named  estate,  both  real  and  personal,  during  his  natural  life," 
and  it  appears  that  the  intention  of  the  maker  was  that  it 
should  become  operative  only  on  his  death,  it  cannot  take 
effect  as  a  deed,  but  must  be  considered  a  testamentary  dis- 
position of  the  property.^  If  the  grantor  retains  the  right  of 
ownership  until  his  death,  and  declares  in  the  instrument  that 
upon  his  death  the  deed  shall  take  effect,  it  is  not  valid  as  a 
deed,  but  must  be  treated  as  a  will.*  Although  the  deed  may 
contain  present  words  of  gift,  yet  if  it  contains  other  clauses 
showing  that  a  life  estate  is  reserved,  and  that  the  gift  is  not 
to  take  effect  until  the  grantor's  death,  it  may  be  converted  into 
a  will.  Thus,  where  a  husband  and  wife  made  such  a  deed  of 
the  wife's  separate  estate  to  their  children,  and  it  was  pro- 
vided that  the  gift  was  to  take  effect  at  her  death,  and  that  her 
husband,  as  her  executor,  should  keep  the  property  for  a  speci- 
fied time  for  the  beenfit  of  the  children  until  the  estate  could 
be  wound  up,  when  the  gifts  were  to  be  distributed,  these 
clauses  convert  it  into  a  will  and  destroy  its  character  as  a 
deed.^  If  the  instrument  contain  a  condition,  performance  of 
which  will  cause  the  property  to  revert  to  the  grantor,  and 
provides  that  after  his  death  it  shall  be  divided  share  and  share 

1  Leaver  v.  Gauss,  62  Iowa,  314;  *  Walker  v.  Jones,  23  Ala.  448; 
Bigley  v.   Souvey,  45   Mich.   370.           Bigley  v.  Souvey,  45  Mich.  370. 

2  Cunningham  v.  Davis,  62  Miss.  '  Mosser  v.  Mosser,  32  Ala.  551, 
636. 

3  Carlton    v.    Cameron,    54    Tex. 
72,  3S  Am.  Rep.  62a 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1595 

alike  between  designated  relatives,  it  is  invalid  as  a  deed.' 
The  rule  to  be  deduced  from  the  authorities  may  be  stated  to 
be  that  where  no  present  interest  becomes  vested  by  the  in- 
strument, but  it  directs  what  is  to  be  done  after  the  maker's 
death,  or  becomes  operative  only  in  that  event,  it  is  to  be  con- 
sidered a  testamentary  disposition  of  property,  notwithstand- 
ing the  intention  of  the  parties  was  to  execute  a  deed."' 

§  856.     Conveyance  of  estate  not  owned  by  grantor. — 

While  on  this  subject,  w^e  may  consider  the  effect  of  a  convey- 
ance of  land  owned  by  the  grantor  at  the  time  of  his  death,  but 
not  owned  at  the  time  of  the  execution  of  the  deed.  A  case  in 
Maine-  will  illustrate  the  construction  to  be  placed  upon  deeds 
of  this  character.  Four  years  before  the  grantor's  death  he 
executed  a  deed  conveying  "all  the  estate,  wherever  situated, 
that  I  now  own,  or  may  own  at  the  time  of  my  decease."  The 
deed  also  contained  the  clauses :  "A  list  of  the  several  pieces 
or  lots  of  land  will  be  found  with  my  papers.  This  deed  to 
have  full  effect  immediately  before  my  decease."  The  deed, 
the  court  held,  conveyed  only  such  of  the  land  o\yned  by  the 
grantor  at  the  date  of  the  deed  as  he  continued  to  own  when 
it  took  effect,  and  it  did  not  convey  any  real  estate  acquired  by 
the  grantor  after  the  execution  of  the  conveyance.'  *Tt  is  a 
cardinal  rule,"  said  Mr.  Justice  Dickerson,  "that  deeds  are  to 
be  so  construed  as  to  give  effect  to  tlie  intention  of  the  par- 
ties. The  intention  must  be  intelligible  and  consistent  with 
the  rules  of  law.  If  an  instrument  in  writing  upon  its  face 
purports  to  pass  the  title  to  land  in  such  manner  and  form  as 

OMallery  v.  Dudley,  4  Ga.  32.  583;    Hall    v.    Bragg,   28    Ga.    330; 

"^  Millican    v.    Millican,    24    Tex.  Symmes    v.    Arnold,    10    Ga.    506 ; 

427 ;  Babb  v.  Harrison,  9  Rich.  Eq.  Shepherd    v.    Nabors,    6    Ala.    631 ; 

111,  70  Am.  Dec.  203;  Gage  v.  Gage,  Frederick's  Appeal,  52  Pa.  St.  338. 

12   N.   H.   371;   Brewer  v.    Baxter,  91  Am.  Dec.  159;  Dunne  v.  Bank  of 

41  Ga.  212,  5  Am.  Rep.  530;  Turner  Mobile,  2  Ala.  152. 

V.  Scott,  51  Pa.  St.  126;  Watkins  »  Libby  v.  Thornton,  64  Me.  479. 
V.  Dean,  10  Yerg.  320,  31  Am.  Dec. 


1596  THE    LAW    OF    DEEDS.  [CHAP.    XXV. 

by  the  rules  of  law  can  only  be  done  by  will,  it  cannot  be  sus- 
tained as  a  deed.  A  deed  given  to  take  effect  in  futiiro,  upon 
its  subsequent  delivery,  or  some  future  contingency,  may  not 
convey  the  same  property  that  a  deed  having  the  same  descrip- 
tion conveys,  when  it  takes  effect  at  the  time  of  its  execution. 
Between  the  time  of  execution  and  the  time  of  taking  effect, 
the  grantor  may  have  conveyed  a  part  or  the  whole  of  the 
property  intended  to  be  conveyed  to  a  bona  fide  purchaser,  who 
holds  it  under  a  recorded  deed ;  or  it  may  have  been  taken  on 
execution.  In  such  cases,  the  grantee  acquires  title  to  such 
part  of  the  land  only  as  remains  the  property  of  the  grantor 
when  the  deed  takes  effect.  The  intention  to  be  regarded  must 
be  one  existing  in  the  minds  of  the  parties  when  the  deed  is 
executed.  When  the  question  arises  with  respect  to  what  par- 
ticular land  the  deed  conveys,  the  inquiry  is.  What  did  the 
grantor  intend  to  convey  and  the  grantee  to  receive?  Their 
intention  in  this  respect  is  to  be  ascertained  from  the  descrip- 
tion in  the  deed.  If  the  subject  of  the  grant  cannot  be  identi- 
fied from  that,  the  grant  becomes  void  for  uncertainty."  The 
justice  observed  that  it  was  unnecessary  to  determine  whether 
the  deed  took  effect  on  delivery  or  immediately  before  the 
death  of  the  grantor,  because  it  did  not  appear  that  the  grant- 
or had  made  or  received  any  conveyances  between  the  time  of 
the  delivery  of  the  deed  and  the  grantor's  death.  It  also  be- 
came unnecessary,  said  the  justice,  to  determine  whether  the 
description  "all  the  real  estate,  wherever  situated,  that  I  now 
own,"  was  sufficient  to  pass  the  title  to  the  land  owned  by  the 
grantor  when  the  deed  was  executed,  "inasmuch  as  this  de- 
scription is  aided  by  being  coupled  with  'a  list  of  the  several 
pieces  or  lots  of  land,'  found  among  the  grantor's  papers,  and 
referred  to  in  the  deed.  These  clauses  together  clearly  show 
that  the  grantor  had  a  legal  and  intelligible  intention  to  con- 
vey, and  the  grantees  to  receive,  by  the  deed,  title  to  'the  sev- 
eral pieces  or  lots'  described  in  the  memoranda  thus  referred 
to.    It  follows,  from  the  principles  before  stated,  that,  though 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1597 

the  deed  was  intended  to  take  effect  in  fiituro,  it  operated  to 
convey  the  grantor's  title  to  such  parts  of  'the  several  pieces 
or  lots  of  land,'  referred  to  in  the  deed,  as  he  continued  to 
own  when  the  deed  took  effect."  As  to  the  effect  of  the  deed 
as  a  conveyance  of  title  to  real  estate  acquired  by  the  grantor 
after  the  deed  was  executed,  and  remaining  in  him  when  the 
deed  took  effect,  the  justice  continued :  "The  language  of  the 
description  in  the  deed  is,  'all  the  real  estate,  wherever  situ- 
ated, that  I  now  own  or  may  own  at  the  time  of  my  decease.' 
The  latter  clause  in  the  description  is  not  aided  by  the  subse- 
quent reference  in  the  deed  to  'the  several  pieces  or  lots  of 
land,'  as  that  relates  to  real  estate  owned  by  him  when  the 
deed  was  executed.  Real  estate  acquired  by  the  grantor  sub- 
sequently to  the  execution  of  the  deed,  was  not  in  esse  with 
respect  to  him  when  he  signed  the  deed.  Neither  he  nor  his 
grantors  could  then  have  had  any  rational  or  intelligible  inten- 
tion with  regard  to  the  location,  quantity,  number  of  parcels, 
value,  and  the  like,  of  the  real  estate  he  might  thus  acquire. 
He  might  take  conveyances  of  property  that  would  increase  the 
value  of  the  estate  he  owned  when  the  deed  was  executed  an 
hundred  fold,  and  might  dispose  of  it  all  before,  or  retain  the 
whole  or  a  part  of  it  when  the  deed  should  take  effect.  Upon 
all  these  matters  the  deed  is  silent,  though  it  is  to  the  descrip- 
tion in  the  deed  that  we  are  to  look,  in  order  to  ascertain  what 
particular  real  estate  was  designed  to  be  conveyed  by  this 
clause  in  the  deed.  The  subject  of  the  grant  under  this  clause 
cannot  be  ascertained  from  the  description,  and  the  grant  is 
necessarily  void  for  uncertainty.  Moreover,  the  deed  cannot 
be  held  to  pass  the  grantor's  title  to  real  estate  acquired  by 
him  subsequently  to  its  execution,  without  abolishing  the  dis- 
tinction between  the  formalities  required  by  the  statute  of 
wills,  and  those  necessary  to  convey  real  estate  by  deed."  ^ 
To  the  general  rule  that  an  after-acquired  title  passes  to  the 
grantee  is  the  exception  that,  if  the  grantor  executes  to  his 

3  In  Libby  v.   Thornton,  64   Me.      479, 


1598  THE   LAW    OF   DEEDS.  [CHAP.    XXV. 

grantor  a  mortgage  to  secure  the  purchase  money  on  the 
premises  subsequently  acquired,  the  rights  of  the  mortgagee 
are  not  affected  by  the  prior  conveyance.' 

§  857.  Conveyance  in  fee  with  condition  upon  "a  right 
of  possession  in  the  grantors. — Where  the  parties  clearly 
express  their  intention,  there  can  be  little,  if  any.  room,  for 
construction.  In  a  case  in  Vermont,  where  a  deed  in  the  usual 
form  of  a  conveyance  of  a  present  fee  simple,  but  with  con- 
ditions, came  before  the  court  for  construction,  Mr.  Justice 
Veazey  commenced  with  the  observation,  so  often  well  found- 
ed: "The  unskillfulness  and  ignorance  of  the  draftsman  in 
such  matters  have  as  usual  caused  difficulty."  The  deed  made 
by  a  man  and  his  wife  to  two  of  his  children,  in  its  granting 
part  purported  to  convey  a  present  estate  in  fee  simple,  but 
contained  the  condition  that  the  grantees  "are  not  to  have  any 
right  or  title  whatever  to  the  above-described  premises,  so 
long  as  we,  or  either  of  us,  live;  and  the  above  deed  is  not 
to  be  binding  upon  us,  or  either  of  us,  if  in  any  case  we  should 
want  or  need  to  sell  a  part  or  all  of  said  real  estate  in  order  to 
maintain  us,  and  the  above  deed  is  to  be  null  and  void  in  such 
case,  and  we  are  to  have  the  entire  control  of  the  above  prem- 
ises during  our  natural  lives."  The  construction  placed  upon 
this  condition  is  best  given  in  the  language  of  the  court:  "If 
the  part  of  the  condition  to  the  effect  that  the  grantees  are  not 
to  have  any  right  or  title  whatever,  so  long  as  either  of  the 
grantors  live,  constituted  the  whole  of  the  condition,  it  would 
be  difficult  to  construe  it  as  compatible  with  an  estate  what- 

1  Morgan  v.  Graham,  35  Iowa,  213.  son    who    is    heir    apparent   to    his 

It  was  said  by  Deady,  J.,  in  Lamb  father,    may    reasonably    expect    to 

V.  Kamm,   1   Saw.  238,  241 :     "But  inherit    the    latter's    property,    but 

a   mere   expectation   or  belief   that  an   expectation   or   hope   not  being 

a   party   will  at  some   future  time  an  interest  in  the  property,  it  is  well 

acquire  an  interest  in  certain  prop-  settled   that   the    deed   of   the   heir 

erty,  is  not  itself  an  estate  or  in-  under   such   circumstances   conveys 

terest  of  any  kind,   and  cannot  be  nothing   and    is    inoperative." 
conveyed  by  deed.    For  instance,  a 


CHAP.    XXV.]       PRINCIPLES   OF    CONSTRUCTION.  1599 

ever  in  prescnti.  Its  import  seems  to  be  not  to  limit,  explain, 
or  qualify  the  grant,  but  in  express  terms  to  nullify  and  de- 
stroy it.  Where  the  two  parts  of  a  deed  are  irreconcilable, 
one  of  them  must  fail ;  and  of  the  two  the  condition  should 
fail  and  the  absolute  part  of  the  conveyance  stand.  .  .  . 
But  a  deed  should  be  interpreted  most  favorably  for  its  own 
validity,  and  for  the  effectuation  of  the  design  of  the  grant- 
ors, where  that  is  plainly  expressed,  or  can  be  collected,  or  as- 
certained from  the  deed,  unless  it  is  in  conflict  with  some  rule 
of  law.  The  intent  is  to  be  derived  upon  view  and  comparison 
of  the  whole  instrument.  We  think  the  grantors'  intent  in 
this  deed,  though  clumsily  expressed,  yet  fairly  collectible, 
and  ascertainable  from  it  as  a  whole,  was  to  convey  the  prem- 
ises in  fee,  conditioned  upon  a  right  of  possession  and  use  in 
the  grantors,  and  the  survivor  of  them  during  life,  and  of  be- 
ing supported,  so  far  as  needed,  in  addition  and  suitable  to 
their  condition  in  life,  by  the  grantees;  with  the  further  right 
in  the  grantors  to  sell  and  convey  for  their  necessities,  in  case 
of  failure  to  receive  support  from  the  grantees.  The  right  to 
support  and  to  sell  for  their  necessities,  was  a  provision  in 
the  nature  of  a  condition  of  absolute  defeasance.  If  the  gran- 
tees wished  the  conveyance  to  become  absolute,  they  were 
bound  to  see  that  no  occasion  should  arise  for  the  grantors  to 
sell  for  their  necessities."  ^  Where  a  father  executes  to  his 
son  a  deed  of  real  and  personal  property,  with  the  condition 
that  the  grantor  and  his  wife  shall  enjoy  the  use  and  posses- 
sion of  the  property  during  their  lives,  and  that  at  their  death, 
and  not  before,  the  grantee  shall  have  possession,  the  deed  is 
to  be  considered  as  a  grant  upon  condition  subsequent.^  In 
an  earlier  case,  however,  in  Vermont,  where  a  deed  reserved 
an  estate  during  the  lives  of  the  grantor  and  his  wife,  the  lat- 
ter not  being  a  party  to  the  deed,  it  was  decided,  that  upon 
the  death  of  the  husband  the  estate  descends  to  his  personal 

2  Blanchard  v.  Morey,  56  Vt.  170,  'Sherman,  Administrator  v.   Es- 

and  cases  cited.  tate  of  Dodge,  28  Vt.  26. 


1600  THE  LAW  OF  DEEDS.        [CHAP.  XXV. 

representatives,  and  the  wife  is  entitled  to  dower.*  "The 
g-rantino-  of  an  estate  in  fee,  to  take  effect  after  a  particular 
estate  reserved  as  an  estate  for  life,  or  lives,  is  not  inconsist- 
ent with  the  law  of  England.  And  if  it  were,  it  could  have 
no  application  here;  for  under  our  statute  of  conveyancing, 
there  being  no  livery  of  seisin  in  fact  necessary  to  invest  the 
grantee  with  the  title,  but  only  the  seisin  resulting  from  the 
due  execution  and  recording  of  the  deed,  there  is  no  objection 
whatever  to  the  creating  of  a  freehold  estate,  in  terms,  to  take 
effect  in  future.  This  has  been  expressly  decided  in  some  of 
our  American  States,  and  we  see  no  valid  objection  to  hold- 
ing the  same  under  our  statute."  ^  As  illustrating  the  impos- 
sibility of  formulating  any  but  the  most  general  rules  of  con- 
struction, is  the  observation  of  Mr.  Justice  Redfield,  that  "it 
is  not  uncommon  for  instruments  quite  as  similar  as  these  to 
receive  different  interpretations  by  the  same  court."  ' 

§  858.  Limited  estates. — Whether  a  life  estate  or  an 
estate  in  fee  is  conveyed  must  be  determined  by  considering 
the  deed  as  a  whole.  Some  instances,  where  deeds  came  be- 
fore the  court  for  construction  as  to  the  estate  conveyed,  may 
be  cited.  In  one,  a  father  conveyed  to  his  daughter,  who  was 
a  married  woman,  a  piece  of  property  in  consideration  of  nat- 
ural love  and  affection,  "and  for  settling  and  assuring  the 
premises  for  such  purposes,  and  upon  such  conditions  as  are 
hereinafter  expressed ;"  the  habendum  clause  was  to  have  and 
to  hold  the  property  "unto  the  said  grantee,  her  heirs  and  as- 
signs, forever,  to  the  end  and  intent  that  the  same  shall  and 

*  Gorham  v.  Daniels,  23  Vt.  600.  on  the  contingency,  on  the  hap- 
Where  a  husband  has  conveyed  pening  of  which  the  title  revests 
land  to  a  trustee  for  the  use  of  his  in  the  husband :  Woods  v.  Woods, 
wife  and  her  children  by  him,  born  87   Ga.    562. 

and  to  be  born,  with  a  condition  in  ^  Gorham  v.  Daniels,  23  Vt.  600, 

the  habendum  that  in  case  of  him  611,  per  Redfield,  J. 

surviving  her,  the  property  should  ^  Sherman    Administrator   v.    Es- 

revert  to  him  free  from  the  trust,  tate  of  Dodge,  28  Vt.  26,  30. 
the  title  is  in  the  trustee  defeasible 


CHAP.    XXV.]      PRINCIPLES   OF    CONSTRUCTION.  1601 

may  be  for  her  sole  and  separate  use,  benefit,  behoof,  and  dis- 
posal, notwithstanding  her  present  or  future  coverture,  for 
and  clear  of  and  from  interruption,  intervention,  and  control 
of  her  husband,  or  any  future  husband  she  may  have,  and 
without  being  in  any  way  or  manner  subject,  responsible,  or 
liable  to  or  for  the  existing  or  future  contracts,  debts,  liabili- 
ties, or  engagements  of  her  present  husband,  or  any  future 
husband  she  may  have."  The  court  decided  that  under  this 
instrument  the  grantee  took  an  estate  of  inheritance  in  fee, 
and  not  an  estate  for  life  merely."'  In  another  case  a  person 
in  consideration  of  marriage  executed  a  deed  by  which  he 
conveyed  a  tract  of  land  to  the  grantee,  "and  to  her  heirs  and 
assigns;  to  hold  the  same  during  her  lifetime,  and  then  said 
land  to  revert  to  my  heirs,  both  of  her  and  my  former  wife; 
provided  that  she  shall  have  all  she  makes  as  her  own  each 
year,  to  dispose  of  as  she  sees  fit,  and  to  hold  said  land  in  any 
manner  belonging  as  aforesaid."  The  court  held  that  by  a 
fair  and  liberal  interpretation  of  the  whole  deed  it  was  the 
intention  of  the  grantor  to  convey  only  a  life  estate,  and  not  a 
fee  simple.'  A  deed  was  made  to  a  person  upon  condition  that 
he  should  take  "the  possession,  care,  and  custody  of  the  said 
premises,  for  and  during  the  term  of  his  natural  life,  to  let  or 
lease  the  same,  collect  all  rents  and  incomes  to  be  derived 
therefrom,  and  to  pay  all  taxes,  insurance,  repairs,  and  inci- 
dental expenses  that  may  accrue  on  said  premises,  and  the 
balance  appropriate  to  his  own  use  if  he  choose  so  to  do,  or  to 
such  uses  and  purposes  in  the  exercise  of  his  judgment  as  he 
may  see  fit,  but  said  income  not  in  any  ways  liable  for  his 
debts  or  liabilities,  or  be  accountable  to  any  person  therefor; 
and  at  any  time  he  may  desire  or  deem  expedient,  relinquish 
the  possession  of  the  said  premises"  to  the  children  of  the 
grantee.  The  court  decided  that  if  he  accepted  the  convey- 
ance, he  acquired  a  life  estate  which  might  be  taken  on  exe- 

'Pool  V.   Blakie,  S3  111.  495.  8  Caldwell   v.   Hammons,  40  Ga. 

345. 
Deeds,  Vol.  n.— 101 


1602  THE    LAW    OF    DEEDS.  [CHAP.    XXV. 

cntion  by  his  creditors.'  Real  estate  was  conveyed  to  a  hus- 
band "and  his  heirs  and  assigns  forever."  The  deed  further 
provided  that  the  property  was  to  be  held  by  the  grantee  "for 
and  during  his  natural  life,"  and  to  his  wife  "if  she  be  living 
at  the  death"  of  the  grantee,  and  if  she  was  not  living  at  the 
death  of  the  grantee,  then  to  his  heirs  and  assigns  forever. 
The  husband  devised  the  land  to  his  wife  and  to  his  children 
by  her.  Subsequently  he  died,  and  his  death  was  followed  by 
that  of  his  wife.  The  children  of  the  marriage  between  the 
grantee  and  his  wife  instituted  an  action  against  the  children 
of  the  wife  by  another  marriage,  claiming  the  whole  of  the 
land.  The  court,  determined,  however,  that  the  husband  ac- 
quired an  estate  which  terminated  on  his  death,  leaving  his 
wife  surviving  him;  that  at  his  death  she  became  entitled  to 
the  whole  estate,  and  that  on  her  death,  intestate,  the  children 
by  both  marriages  became  entitled  to  the  land.  The  court 
were  also  further  of  the  opinion,  that  if  the  husband  had  sur- 
vived the  wife,  the  title  to  the  whole  estate  would  have  vested 
in  him.^ 

§  859.  Same  subject — Continued. — A  deed  was  made 
to  a  husband  in  trust  for  the  sole  and  separate  use  of  his 
wife,  "for  and  during  the  term  of  her  natural  life,  free  from 
the  debts,  liabilities,  or  contracts  of  her  present  or  any  future 
husband,  with  remainder  at  her  death  to  her  children  then  in 
life,"  by  her  husband  begotten.  The  deed  also  provided  that 
if  she  should  die  leaving  no  child  or  issue  of  a  child  by  her 
husband,  the  trustee,  begotten,  the  remainder  should  be  to  him 
and  his  heirs  in  fee  simple ;  it  also  contained  a  proviso  that  the 
trustee  for  the  time  being  might  at  any  time  in  a  deed  in  which 
she  would  voluntarily  join,  convey,  mortgage,  or  exchange  the 
property,  reinvesting  the  proceeds  of  such  sale  subject  to  the 
same  trust.     The  wife,  the  court  held,  had  only  a  life  estate 

»  Wellington  v.  Janvrin,  60  N.  H.  *  Carson  v.  McCaslin,  60  Ind.  334. 

ti74. 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION. 


1603 


in  the  property.'  The  legal  effect  of  a  deed  conveying  lands 
to  a  person,  to  use  the  grantor's  language,  "at  my  death,"  is 
that  the  grantor  has  reserved  a  life  estate  to  himself,  and  cove- 


2  In  Matter  of  Chisolm,  8  Ben. 
C.  C.  242.  See,  also,  as  to  construc- 
tion of  peculiar  deeds,  and  as  to 
estate  conveyed,  Seaman  v.  Harvey, 
16  Hun,  71 ;  Johnson  v.  Leonard, 
68  Me.  237;  Gilkey  v.  Shephard,  51 
Vt.  546;  Winter  v.  Gorsuch,  51  Md. 
180;  Thompson  v.  Carl,  51  Vt.  408; 
Preston  v.  Heiskell,  32  Gratt.  48; 
Vinson  v.  Vinson,  4  111.  App.  138; 
Daniels  v.  Citizens'  Savings  Institu- 
tion, 127  Mass.  534;  Clayton  v. 
Henry,  32  Gratt.  565 ;  Phinizy  v. 
Clark,  62  Ga.  623;  Cribb  v.  Rogers, 
12  S.  C.  564,  32  Am.  Rep.  511; 
Hemstreet  v.  Burdick,  90  111.  444; 
Braswell  v.  Suber,  61  Ga.  398; 
Tremmel  v.  Kleiboldt,  6  Mo.  App. 
549;  Taylor  v.  Cleary,  29  Gratt. 
448;  Wayne  v.  Lawrence,  58  Ga. 
15;  Mowry  v.  Bradley,  11  R.  I. 
370;  Waugh  v.  Waugh,  84  Pa.  St. 
350,  24  Am.  Rep.  191;  Long  v. 
Swindell,  11  N.  C.  176;  Jackson  v. 
Hodges,  2  Tenn.  Ch.  276 ;  Hurd  v. 
French,  2  Tenn.  Ch.  350;  Reaves 
V.  Ore  Knob  Copper  Co.,  76  N.  C. 
593;  Waugh  v.  Miller,  75  N.  C. 
127 ;  Allen  v.  Bowen,  IZ  N.  C.  155 ; 
McEachem  v.  Gilchrist,  75  N.  C. 
196;  Hawkins  v.  Parham,  75  N.  C. 
259;  Indiana  Central  Canal  Co.  v. 
State,  53  Ind.  575 ;  Forest  v.  Jack- 
son, 56  N.  H.  357 ;  Holt  v.  Somer- 
ville,  121  Mass.  574;  Heermans  v. 
Robertson,  64  N.  Y.  332;  Pierce 
v.  Gardner,  83  Pa.  St.  211 ;  Phillips 
V.  Thompson,  IZ  N.  C.  543 ;  Hutch- 
inson T.  Chicago  etc.  R.  R.  Co., 
37  Wis.  582;  Hurst  v.  Hurst,  7  W. 
Va.  289;  Ochiltree  v.   McClung,  7 


W.  Va.  232;  Taggart  v.  Risley,  4 
Or.  235;  Tesson  v.  Newman,  62 
Mo.  198;  Goodel  v.  Hibbard,  32 
Mich.  47;  Pittman  v.  Corniflf,  52 
Ala.  83;  Lawe  v.  Hyde,  39  Wis. 
345;  Lerned  v.  Saltonstall,  114 
Mass.  407;  Ingalls  v.  Newhall,  139 
Mass.  268;  Hastings  v.  Merriam, 
117  Mass.  245;  Broadstone  v. 
Brown,  24  Ohio  St.  430;  Board  of 
Education  v.  Trustees  of  First  Bap- 
tist Church,  63  111.  304;  Sheridan 
V.  House,  4  Abb.  N.  Y.  App.  218; 
Marvin  v.  Brewster  Iron  Mining 
Co.,  55  N.  Y.  538,  14  Am.  Rep.  322; 
Chase  v.  Dix,  46  Vt.  642;  Monroe 
v.  Bowen,  26  Mich.  523 ;  Hawkins 
v.  Chapman.  36  Md.  83 ;  Dubois  v. 
Campau,  24  Mich.  360;  Attwood  v. 
Kittell,  9  Ben.  C.  C.  473;  Powell 
v.  Morrissey,  84  N.  C.  421 ;  Watson 
v.  Priest,  9  Mo.  App.  263;  Robin- 
son V.  Payne,  58  Miss.  690;  Hewitt's 
Appeal,  55  Md.  509;  Peoria  v. 
Darst,  101  111.  609;  Doe  v.  Pickett, 
65  Ala.  487;  Holmes  v.  Holmes, 
86  N.  C.  205;  Smith  v.  Rice,  130 
Mass.  441 ;  Bratton  v.  Massey,  15 
S.  C.  277;  Cannon  v.  Barry,  59 
Miss.  289;  Green  Bay  &  Mississippi 
Canal  Co.  v.  Hewett,  55  Wis.  96, 
42  Am.  Rep.  701 ;  Currier  v.  Jan- 
vrin,  58  N.  H.  374;  Franks  v.  Berk- 
ner,  67  Ga.  264;  Mackall  v.  Rich- 
ards, 1  Mackey  (D.  C),  444;  Men- 
denhall  v.  Mower,  16  S.  C.  303; 
Brown  v.  Brown,  68  Ala.  114; 
Burnett  v.  Burnett,  17  S.  C.  545; 
Commonwealth  v.  Hackett,  102  Pa. 
St.  505;  Hanks  v.  Folsom,  11  Lea 
(Tenn.),    555;    Lindley    v.    Crom- 


1604  THE  LAW  OF  DEEDS.        [CHAP.  XXV. 

nanted  to  stand  seised  to  the  use  of  the  grantee  at  the  grant- 
or's death.^  A  deed  conveyed  land  to  a  woman  during  her 
natural  life,  and  after  her  death  to  her  children  by  her  then 
husband,  "during  the  natural  life  of  each  of  said  children, 
and  after  their  death"  to  her  husband  in  fee,  and  "to  his  heirs 
and  assigns  forever."  The  tenure  in  the  habendum  clause  was 
to  the  mother  "during  her  natural  life,  and  after  her  death  to 
the  said  surviving  children,"  and  after  the  death  of  each  of 
the  children  to  the  husband  "in  fee,  and  to  his  heirs  and  as- 
signs forever."  The  court  construed  the  deed  as  giving  the 
children  an  interest  contingent  upon  their  surviving  their 
mother;  only  such  of  the  children  as  survive  her  could  take  the 
estate,  and  the  interest  of  the  husband  was  held  to  be  a  vested 
remainder  in  fee,  subject  to  the  interven'  ig  contingent  estate 
of  the  children.*  Where  a  deed  contains  the  condition  that  a 
person  not  named  as  grantee  "is  to  have  the  privilege  of  a 
support  off  of  said  lands  during  his  lifetime,  without  encum- 
brance," such  person  has  a  life  estate.  The  words  "without 
encumbrance"  mean  without  impediment  to  the  rights  of  the 
life  tenant.^  "He  could  not  have  his  support  off  the  land 
without  the  use  and  occupation  of  it.  The  right  to  such  sup- 
port from  the  land  involves  the  use  and  occupation,  as  without 
the  use  and  occupation  he  could  not  derive  his  support  from 
it.  And  it  seems  to  us  that  a  life  estate  was  as  effectually  con- 
veyed to  him  as  if  the  deed  had  provided  that  he  should  have 
the  use  and  occupation,  or  the  rents  and  profits  of  the  land 
for  life."  ^    The  obligation  to  support,  when  a  condition  in  a 

bie,  31  Minn.  232 ;  Edwards  v.  Mc-  63  Md.  190 ;  Wilder  v.  Wheeler,  60 

Clurg,   39   Ohio    St.   41;    Kemp    v.  N.  H.  351;  Creswell  v.  Grumbling, 

Bradford,  61  Md.  330;  O'Brien  v.  io7  Pa.  St.  408. 

Brice,   21    W.   Va.   704;    Grubb   v.  3  Vinson    v.    Vinson,    4    Bradw. 

Grubb,  101   Pa.  St.  11;  Fletcher  v.  /t„     »       \    i-jq 

Fletcher,    88    Ind.    418;    Lorick    v.  ^  , ,  ^.PP'-*    ^^t     ,      nn    r.,  ■      c 

McCreery,  20  S.  C.  424;  Louisville  ^"^'^^    ^-    ^'°"^'    ^9    Oh.o    St. 

&   Nashville  R.  R.   Co.   v.   Boykin,  "^^S. 

76  Ala.  560;  Monmouth  v.   Plimp-  ^  Stout  v.  Dunning,  72  Ind.  343. 

ton,  77  Me.  556;   Zittle  v.  Weller,  « Stout  v.  Dunning,  72  Ind.  343, 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION. 


1605 


deed,  is  generally  regarded  as  a  personal  duty,  which  cannot 
be  transferred  to  another.' 

§  860.  Conveyance  to  wife  and  children. — A  convey- 
ance to  a  woman  and  her  children  makes  them  joint  tenants 
or  tenants  in  common.*  Thus,  where  a  deed  is  made  to  a  wom- 
an and  her  children  "to  have  and  to  hold  said  tract  of  land  to 
the  parties  of  the  second  part,  their  heirs  and  assigns  for- 
ever," the  mother  and  children  take  an  undivided  estate  in  fee 
simple.^  "If  others  were  named  in  such  a  grant  than  the 
children,"  said  the  court,  "there  then  would  be  no  room  for 
a  contention,  and  because  the  word  'children'  is  used,  affords 
no  reason  for  inferring  an  intention  on  the  part  of  the  grantor 


346,   on   petition   for   rehearing  by 
Worden,  J. 

'Eastman  v.  Batchelder,  36  N. 
H.  141,  72  Am.  Dec.  295 ;  Flanders 
V.  Lamphear,  9  N.  H.  201.  For 
cases  in  which  instruments  convey- 
ing a  limited  or  unqualified  estate, 
on  the  condition  that  the  grantee 
shall  support  the  grantor,  have 
come  before  the  courts,  see  Bryant 
V.  Erskine,  55  Me.  153;  Jenkins  v. 
Stetson,  9  Allen,  128;  Marsh  v. 
Austin,  1  Allen,  235;  Hawkins  v. 
Clermont,  15  Mich.  511;  Hubbard 
V.  Hubbard,  12  Allen,  586;  Bethle- 
hem V.  Annis,  40  N.  H.  34,  11  Am. 
Dec.  700;  Hoyt  v.  Bradley,  27  Me. 
242;  Rhoades  v.  Parker,  10  N.  H. 
83;  Brown  v.  Leach,  35  Me.  41; 
Austin  V.  Austin,  9  Vt.  420;  Soper 
V.  Guernsey,  71  Pa.  St.  219;  Dear- 
born V.  Dearborn,  9  N.  H.  117; 
Henry  v.  Tupper,  29  Vt.  358;  Wild- 
er V.  Whittemore,  15  Mass.  263; 
Pettee  v.  Case,  2  Allen,  546;  Thayer 
V.  Richards,  19  Pick.  398;  Fiske  v. 
Fiske,  20  Pick.  499 ;  Gibson  v.  Tay- 
lor, 6  Gray,  310;  Dunklee  v.  Adarns, 


20  Vt  415,  50  Am.  Dec.  44;  Hill  v. 
More,  40  Me.  515;  Gilson  v.  Gil- 
son,  2  Allen,  115;  Daniels  v.  Eisen- 
lord,  10  Mich.  454;  Tucker  v.  Tuck- 
er, 24  Mich.  426,  35  Mich.  365; 
Lanfair  v.  Lanfair,  18  Pick.  299; 
Hobby  V.  Bunch,  83  Ga.  1,  20  Am. 
St.   Rep.  301. 

8  Brenham   v.   Davidson,    51    Cal. 
352;    Jackson    v.    Coggins,   29   Ga. 
403;    Estate   of   Utz,   43   Cal.  200; 
Powell  V.   Powell,  5  Bush,  619,  96 
Am.    Dec.   372;    Mason   v.    Clarke, 
17  Beav.  126;  Bustard  v.  Saunders, 
7  Beav.  92;   Eagles  v.  Le  Breton, 
Law  R.  15  Eq.  148 ;  Newell  v.  New- 
ell, Law  R.  7  Ch.  253;   Hoyle  v. 
Jones,  35  Ga.  40,  89  Am.  Dec.  273 
Webb  v.  Byng,  2  Kay  &  J.  669 ;  De 
Witte    v.    De   WiUe,    11    Sim.   41 
Crockett  v.    Crockett,  2   Phill.   Ch 
553;    Morgan    v.    Britten,    Law    R 
13  Eq.  28;  Freeman  on  Cotenancy 
and   Partition.   §   26.     See   McCall 
V.  McCall,   1  Tenn.   Ch.  504;  Doty 
v.  Wray,  66  Ga.  153. 

9  Bullock  V.  Caldwell,  81  Ky.  566. 


1606  THE   LAW   OF   DEEDS.  [CHAP.    XXV. 

to  make  a  different  disposition  of  the  estate  than  the  plain 
language  of  the  instrument  indicated,  and  then  to  reverse  the 
rule  when  applied  to  strangers  for  the  reason  that  such  a  con- 
veyance is  susceptible  of  but  one  construction.  Nor  is  there 
any  reason  to  suppose  that  the  draftsman  would  employ  such 
language  in  a  conveyance  when  the  grantor's  purpose  is  to 
give  or  grant  the  estate  to  the  daughter  for  life,  and  the  re- 
mainder to  her  children.  No  one  competent  to  reduce  to  writ- 
ing the  substance  of  an  ordinary  business  transaction  between 
parties  would  overlook  the  wishes  of  the  grantor  in  using  the 
language  found  in  this  deed,  if  his  purpose  was  to  create  a  life 
estate  in  the  daughter,  with  a  remainder  to  her  children.  The 
object  of  construing  instruments  of  writing  like  this,  whether 
in  a  grant  or  devise,  is  to  ascertain  the  intention  of  the  party 
making,  and  while  the  words  'for  life'  may  not  be  used  in  the 
conveyance,  there  may  be  other  words  or  expressions,  or  such 
relation  between  the  parties  as  would  indicate  a  plain  intent  to 
limit  the  interest  conveyed,  or  to  grant  to  one  in  the  same  in- 
strument a  less  estate  than  to  another."  The  court  said,  how- 
ever, that  in  the  case  before  it,  the  conveyance  was  to  the  wom- 
an and  her  children,  "with  the  terminous  clause  'to  them  and 
their  heirs  forever ;'  so  there  is  nothing  on  the  face  of  the  deed 
to  indicate  a  purpose  to  convey  any  other  than  a  joint  estate 
to  the  parties  of  the  second  part."  *  But  in  a  former  case  in 
Kentucky,  while  the  rule  was  recognized  that  a  father  making 
provision  for  his  child  and  that  child's  children,  may  be  sup- 
posed to  have  intended  them  to  take  a  joint  estate,  yet,  where 
he  makes  provision  for  his  wife  and  children,  it  should  be 
presumed  he  intended  to  give  the  whole  to  the  wife  for  life, 
and  the  remainder  to  the  children,  unless  the  terms  of  the 
provision,  or  the  circumstances  attending  it,  showed  a  con- 
trary intention.^  The  reason  that  led  the  court  to  draw  the 
distinction  was,  that  when  a  deed  was  made  to  a  man's  child 
and  that  child's  children,  "they  are  all  of  his  blood,  and  the 

»In  Bullock  V.  Caldwell,  81  Ky.      566. 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRLlCtlO^T.  1607 

natural  objects  of  his  bounty;  but  when  a  husband  makes  a 
conveyance  to  his  wife  and  their  children,  there  is  less  reason 
to  suppose  that  he  intended  they  should  take  as  joint  tenants, 
whereby  his  bounty  may,  by  her  death,  pass  into  the  hands  of 
a  stranger,  even  as  against  himself."  The  court  continued, 
that  no  doubt  the  grantor  "desired  and  intended  that  his  wife 
should  enjoy  the  property  equally  with  their  children,  but  it 
would  be  unnatural  to  suppose  that  he  intended  to  invest  her 
with  an  estate  which  might  pass  from  her  to  strangers  to  his 
blood.  This  case  serves  to  illustrate  the  utter  unreasonable- 
ness of  applying  to  every  deed  or  will  the  same  rule  of  con- 
struction with  a  view  to  ascertain  the  intention  of  the  grant- 
or." '  A  conveyance  to  a  woman  "and  all  the  children  she  now 
has  or  ever  will  have,"  was  construed  in  Missouri  as  vesting  a 
life  estate  in  the  mother,  with  remainder  to  the  children.*  In 
Georgia,  where  a  deed  conveyed  property  for  the  use  of  a 
woman  and  "the  children  she  now  has,  and  those  she  may 
hereafter  have  by  her  present  husband,  free  from  the  control 
or  disposition  of  her  present  husband,"  the  habendum  clause 
stating  that  the  conveyance  was  to  her  and  her  assigns,  the 
court  held  that  she  took  a  joint  interest  with  her  children.'' 
Where  a  deed  is  made  by  a  person  in  trust  for  his  married 
daughter  "and  the  heirs  of  her  body,  for  their  support  and  the 
support  of  her  children,  and  at  the  lawful  age  of  her  young- 
est child,  after  her  death,  then  the  property  to  be  equally  di- 
vided among  her  children,"  the  deed  creates,  in  Alabama,  a  life 
estate  in  the  daughter  with  remainder  to  her  children  as  pur- 
chasers.^ ! 

8  Davis  V.  Hardin,  80  Ky.  672.  8  May    v.    Ritchie,    65    Ala.    602. 

*  Kinney  v.  Mathews,  69  Mo.  520.  "The  whole  structure  of  the  deed," 

But    in    this    case,    Henry,    J.,    dis-  said    Mr.    Chief    Justice    Brickell, 

sented,   being   of   the   opinion   that  "clearly  indicates  that  it  was  drawn 

all    of    the    estate    of    the    grantor  by  one  not  skilled  in  drawing  such 

passed   out   of    him   and   vested   in  instruments,       unacquainted       with 

the  mother  and  her   children  then  their  forms,  and  unacquainted  with 

living.  the  meaning — the  technical  meaning 

'  Lee  V.  Tucker,  56  Ga.  9. 


1608 


THE    LAW    OF   DEEDS. 


[chap.    XXV. 


§  861.  Relation  from  re-execution  of  lost  deed.— 
Where  a  deed  once  executed  has  been  lost  and  the  grantor 
executes  a  second  deed,  it  may,  in  some  instances,  become 
necessary,  when  the  rights  of  intervening  creditors  are  in- 
volved, to  determine  whether  the  second  deed  takes  effect 
from  the  date  of  its  execution,  or  whether  it  relates  back  to 
the  time  of  the  first  deed.  Such  a  case  arose  in  North  CaroHna. 
A  father  executed  deeds  of  gift  to  A  and  B,  his  two  sons. 
The  deed  made  to  A  was  lost  before  it  was  registered.     Sub- 


and  force — of  the  expressions  em- 
ployed. The  indiscriminate  use  of 
the  words  'heirs  of  the  body,'  and 
of  the  word  'children,'  to  designate 
the  same  class  of  persons  is  a 
marked  manifestation  of  unskillful- 
ness,  and  the  want  of  knowledge  of 
the  difference  in  the  legal  meaning 
of  the  terms.  The  words  'heirs  of 
the  body,'  unexplained,  unrestrict- 
ed, certainly  created  an  estate  tail 
at  common  law.  They  were  the 
appropriate  words  for  the  creation 
of  that  estate,  limited  to  lineal 
descendants  generally,  as  was  the 
general  term  'heirs,'  to  the  creation 
of  a  fee  simple,  a  pure  inheritance, 
clear  of  qualification  or  condition, 
to  which  whoever  was  the  heir  of 
the  first  taker  at  the  time  of  his 
death,  whether  lineal  or  collateral, 
would  succeed.  But  whenever  it 
was  apparent  on  the  face  of  the 
instrument  creating  an  estate  that 
either  of  these  terms,  'heirs,'  or 
'heirs  of  the  body,'  was  employed, 
not  as  words  of  limitation,  but  as 
words  of  purchase,  as  words  desig- 
nating a  particular  class,  who  were 
to  take,  not  from  or  through  an 
ancestor,  but  from  the  grantor  or 
devisor,  they  did  not  create  either 
a   fee   simple   or  a   fee  tail.     The 


grantor  gives  the  daughter  an  estate 
for  life  only  in  express  terms.  It 
was  not  intended  that  she  should 
have  or  take  any  greater  estate  or 
interest.  But  under  the  operation 
of  the  rule  in  Shelley's  case,  of 
force  when  the  deed  was  executed, 
a  gift  to  one  for  life,  and  then  to 
the  'heirs  of  his  body,'  would  create 
an  estate  tail ;  the  words  'heirs  of 
the  body'  being,  in  their  natural 
and  ordinary  signification,  words  of 
limitation  and  not  of  purchase. 
The  word  'children,'  however,  is  as 
essentially  a  word  of  purchase,  and 
never  construed  as  a  word  of  limi- 
tation, unless  absolutely  necessary 
to  give  effect  to  the  clear  intention 
of  the  grantor  or  devisor:  Dunn 
v.  Davis,  12  Ala.  135 ;  Scott  v.  Nel- 
son, 3  Port.  452,  29  Am.  Dec.  266. 
And  whenever  the  word  'children,' 
and  'heirs  of  the  body,'  are  indis- 
criminately used  to  designate  re- 
maindermen, they  have  been  re- 
garded as  words  of  purchase,  desig- 
nating a  class  of  persons  who  were 
to  take  on  the  expiration  of  the 
particular  estate,  not  from  the  ten- 
ant of  that  estate,  but  from  the 
donor,  a  different  intention  not 
being  clearly  indicated:  Dunn  v. 
Davis,    12   Ala.    135;    Shepherd    v. 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1609 

sequently  B  conveyed  his  land  to  A,  and  the  father  executed  a 
deed  to  B  for  the  land  which  had  originally  been  conveyed  to 
A  in  substitution  for  the  deed  which  had  been  lost.  In  this 
second  deed  he  provided  that  he  was  to  retain  "possession  of 
the  above  described  lands  and  premises  during  his  natural  life, 
or  so  long  as  he  may  desire  it  for  his  own  use  and  benefit." 
The  court  decided  that  if  the  original  deeds  to  A  and  B  were 
valid  as  to  creditors  when  they  were  executed,  no  subsequent 
exchange  between  them  affected  the  rights  of  creditors;  and 
although  the  last  deed  contained  a  reservation  of  a  life  estate, 
that  it  related  back  to  the  date  of  the  lost  deed.'  The  reason- 
ing of  the  court  was  that  if  the  grantee  in  the  last  deed  could 
set  up  the  lost  deed  in  a  court  of  equity,  and  compel  the  grant- 
or to  execute  another  deed,  the  grantor  might  voluntarily  do 
what  in  equity  he  could  be  forced  to  do. 

§  862.  Water  power. — A  peculiar  case,  involving  the 
rights  of  different  parties  to  determinable  portions  of  water 
used  for  propelling  machinery,  may  be  selected  as  illustrating 
the  observation  that  each  case  must,  in  a  great  measure,  be 
decided  by  itself.  In  the  case  referred  to,  the  owner  of  prop- 
erty on  which  were  two  mills,  propelled  by  power  obtained 
from  the  water  of  a  contiguous  river,  sold  a  portion  of  the 
property  on  which  was  situated  one  of  the  mills.  The  deed, 
after  describing  the  property,  granted  the  right  to  use  water 

Nabors,    6    Ala.    631 ;    Twelves    v.  children,  the  division  of  the  prop- 

Nevill,  39  Ala.    175;    Robertson  v.  erty  among  them,  after  the   death 

Johnson,  30  Ala.  197;  Williamson  v.  of  the  mother,  when  the  youngest 

McConico,  36  Ala.  22.    If  the  estate  became    of    age,    would    fail.     We 

for    life,    expressly    given    to    the  cannot  doubt  that  the  words  'heirs 

daughter,    were    enlarged    into    an  of    the    body'    were    used    as    the 

estate  tail,  converted  by  the  statute  synonym  of  'children';  and  being  so 

into  a  fee  simple,  it  is  apparent  the  used,  the  first  taker  had  but  a  life 

intention  of  the  donor,  which  ought  estate,  with  remainder  to  her  chil- 

to  prevail,  so  far  as  it  is  not  offen-  dren." 

sive  to  law,  would  be  disappointed  '  Hodges    v.    Spicei*,    79    N.    C 

and  defeated.    The  gift  over  to  the  223- 


1610 


tHE    LAW    OF    DEEDS. 


[chap.  XXV. 


by  this  clause :  "Together  with  the  right  to  use  water  to  the 
amount  of  the  issue  of  the  wheel  now  in  said  sawmill,  sup- 
posed to  be  six  hundred  inches,  more  or  less,  of  water,  being 
hereby  intended  to  grant  or  convey  so  much  of  the  water  of 
the  Wapsipinicon  river  as  above  mentioned."  The  construc- 
tion put  upon  this  deed  was  that  the  amount  of  water  to 
which  the  grantee  was  entitled  was  to  be  measured  by  the  ca- 
pacity of  the  wheel  in  the  mill  at  the  time  of  the  conveyance; 
that  the  quantity  of  water  mentioned  in  the  deed  was  used  by 
way  of  description,  and  not  of  limitation;  and  that  the  gran- 
tee might  put  in  operation  as  many  wheels  as  he  desired,  so 
long  as  he  did  not  use  in  the  aggregate  more  water  than  the 
issue  of  one  wheel  originally  in  the  mill.®    A  deed  conveying 


*Doan  V.  Metcalf,  46  Iowa,  120. 
The  opinion  of  the  court  was  de- 
livered by  Mr.  Justice  Beck.  As 
the  case  is  a  peculiar  one,  we  quote 
his  language  so  far  as  it  relates 
to  the  construction  of  the  deed : 
"It  is  obvious  that  it  was  intended 
to  convey  sufficient  water  to  propel 
the  wheel  described,  when  used  in 
driving  the  machinery  which  it  had 
the  capacity  to  run.  The  dimen- 
sion and  structure  of  the  wheel 
were  such  that,  with  a  sufficient 
supply  of  water,  it  had  capacity  to 
propel  a  known  quantity  of  ma- 
chinery, or,  rather,  a  quantity  that 
may  be  determined  under  the  laws 
of  dynamics.  It  was  not  the  in- 
tention of  the  parties  that  the  wheel 
should  be  run  without  machinery 
attached  thereto,  nor  that  it  should 
be  run  with  less  machinery  than  it 
had  capacity  to  propel,  when  used 
to  the  extent  of  the  right  con- 
veyed by  the  deed.  The  defend- 
ants, then,  took  by  the  grant  the 
right  to  a  stream  of  water  suffi- 
cient to  propel  the  quantity  of  ma- 


chinery which  could,  in  its  proper 
operation,  be  moved  by  the  wheel 
in  use  at  the  date  of  the  deed.  The 
wheel  thus  becomes  the  instrument 
for  measuring  the  quantity  of  water 
to  which  defendants  are  entitled. 
It  is  very  plain  that  this  quantity 
is  not  to  be  limited  to  six  hundred 
inches,  for  the  very  language  of  the 
instrument  exhibits  uncertainty  in 
the  minds  of  the  contracting  par- 
ties as  to  that  number,  which  was 
used  simply  in  description  of  the 
wheel  which  was  to  be  the  meas- 
ure of  the  water  granted.  If  this 
description  be  incorrect  or  fail,  the 
thing  meant,  the  wheel,  if  it  can 
be  identified,  will  control  as  to  its 
capacity,  rather  than  words  clearly 
used  with  the  understanding  and 
admission  on  the  part  of  both  par- 
ties, of  their  uncertainty.  We  are 
not  required  here  to  determine  upon 
the  methods  and  formulas  of  ma- 
chinists, whereby  they  measure  wa- 
ter power  by  superficial  inches,  or 
to  make  any  inquiry  upon  that  sub- 
ject.    Such  methods  and  formulas. 


CHAP.    XXV.]       PRINCIPLES   OF    CONSTRUCTION. 


1611 


a  quarter  interest  in  a  sawmill  and  a  "quarter  of  the  privileges 
and  appurtenances  thereunto  belonging,"  conveys,  also  as  much 


it    appears    by    the    evidence,    are 
used.     It  is  quite  apparent  that  a 
water    wheel    of    given    dimension, 
propelling    its    proper    quantity    of 
machinery,  will  use  a  determinable 
quantity  of  water,  all  necessary  con- 
ditions, as  the  height  of  the  head 
of  water,  etc.,  being  known.     This 
water  issues   from  the   wheel,   and 
is,    therefore,    aptly    called    in    the 
deed   'the  issue  of  the  wheel.'     A 
great    deal    of    learning    and    ex- 
perience were  exhibited  by  the  wit- 
nesses at  the  trial,  upon  the  subject 
of   the   methods   and    formulas   to 
be  adopted  in  determining  the  quan- 
tity   of    water    used    by   wheels    of 
different  constructions.   We  may  be 
permitted  to  say  that  some  of  the 
methods  explained  in  the  testimony 
were    rather    arbitrary    than    based 
upon  scientific  principles.     This  re- 
mark,   we   think,    will   be   justified, 
when  we  call  attention  to  the  fact 
that  by  some  of  them  the  quantity 
is    indicated    by    superficial    inches, 
without  taking  note  of  time  or  the 
velocity  of  the  water.     But  we  are 
.satisfied,     and    this     conclusion     is 
drawn    from    the    evidence    in    this 
case,  that  the  issue  of  water  from  a 
wheel   may   be   determined,   proxi- 
mately at  least,  with  sufficient  ac- 
curacy for  practical  purposes.     Ex- 
perience and  mechanical  skill,  aided 
by  the  laws  of  hydraulics,  may  reach 
such  result.     We  are  not  required, 
in  view  of  the  disposition  we  shall 
make  of  the  case,  to  determine  now 
the  manner  or  methods  to  be  adopt- 
ed in  ascertaining  the  issue  of  the 
wheel  which  is  made  the  measure 


of  the  quantity  of  water  granted  to 
defendants.      Those    charged    with 
the  duty  of  setting  apart,  or  other- 
wise   prescribing    the    quantity    of 
water  to  which  the  defendants  are 
entitled,    will    do    this.      We    make 
one  suggestion  that   readily  occurs 
to  the  mind  in  considering  the  pro- 
visions of  the  grant.     The  defend- 
ants, as  we  have  said,  are  entitled 
to   a  sufficient   supply  of  water  to 
run  the  wheel  with  the  proper  quan- 
tity of  machinery  attached  thereto. 
This   quantity   may   vary   with   the 
head  of  water  in  the  flume  or  dam, 
and,  consequently,  with  the,  varia- 
tion of  water  in  the  stream.    If  this 
be   so,  due  account  must  be   made 
of  the  fact,  so  that  defendants,  at 
all  times,  when,  under  the  contract, 
they  are  entitled  to  the  full  quantity 
of    water,    may    use    the    amount 
necessary  to  propel  the  machinery. 
If,  therefore,  the  water  for  defend- 
ants' mill  be  set  apart  by  gates  or 
bulkheads    in    the    flume,    due    ar- 
rangements   must    be    provided    to 
meet   this   condition.      But,    in    our 
judgment,  the  just  and  more  simple 
manner   of   partitioning   the    water 
is  by  means   of   the   water   wheels 
used  by  defendants.     Let  the  quan- 
tity   of    water    issued    by    the    old 
wheel    be    determined;    the    water 
issued    by    the    wheels    in    use    by 
defendants  must  be   no  more,  and 
the    wheels    to    be     used    by    de- 
fendants   must     require     no     more 
water     than     did     the     old    wheel. 
Defendants  may  desire  to  use  ma- 
chinery   which    would    require    the 
construction  of  other  water  wheels 


1612 


THE    LAW    OF    DEEDS. 


[chap.    XXV. 


land  as  may  be  required  for  the  use  of  the  mill.^  If  the  gran- 
tee is  entitled  to  the  privilege  of  drawing  water  from  other 
portions  of  the  grantor's  land,  which  were  then  in  use,  as  ap- 
purtenant to  the  land,  and  if  water  is  conveyed  in  an  aque- 
duct from  a  spring  upon  another  part  of  the  grantor's  land  to 
the  land  embraced  in  the  deed,  and  there  used  at  the  time  at 
which  the  deed  was  executed,  the  grantor  cannot  divert  the 
water,  although  he  does  so  upon  a  part  of  his  land  not  con- 
veyed by  the  deed;  such  a  diversion  would  be  a  disturbance 
of  the  grantee's  right,  for  which  he  can  bring  an  action.*  It 
is  no  defense  in  such  a  case  that  the  grantee  did  not  desire  to 
use  the  water,  or  that  by  the  diversion  he  has  suffered  no  ac- 
tual damage.^  If  a  deed  makes  no  mention  of  appurtenant 
water  rights  which  the  grantor  had  utilized,  this  omission  will 
not  justify  a  finding  that  the  grantor  did  not  intend  to  trans- 
fer such  rights  as  the  question  of  their  conveyance,  is  one  of 


than  those  he  is  now  using.  There 
can  be  no  objection  to  his  doing 
so,  but  he  can  use  at  no  time  a 
greater  quantity  of  water  than  in- 
dicated. Therefore,  he  will  not  be 
permitted  to  run  wheels  at  the 
game  time  which  actually  use  a 
greater  quantity.  Wheels  may  be 
idle  when  not  used  as  directed  by 
those  rules." 

9  Madox  V.  Goddard,  15  Me.  218, 
33  Am.  Dec.  604;  Hutchinson  v. 
Chicago  Ry.  Co.,  37  Wis.  582;  Sa- 
bine V.   Johnson,  35   Wis.   185. 

1  Vermont  Central  R.  R.  Co.  v. 
Estate  of  Hills,  23  Vt.  681. 

2  Vermont  Central  R.  R.  Co.  v. 
Estate  of  Hills,  23  Vt.  681.  For 
other  cases  involving  water  rights, 
see  Barber  v.  Nye,  65  N.  Y.  211; 
Canal  Co.  v.  Hill,  15  Wall.  94,  21 
L.  ed,  64;  Taylor  v.  St.  Helens,  6 
Chip.  D.  264;  Robinson  v.  Imperial 
Silver   Min.   Co.,  5   Nev.  44;   Kil- 


gore  V.  Hascall,  21  Mich.  502;  De 
Witt  V.  Harvey,  4  Gray,  486; 
Schuylkill  Navigation  Co.  v.  Moore, 
2  Whart.  477;  Mayor  v.  Commis- 
sioners, 7  Pa.  St.  348;  Society  v. 
Holsman,  1  Halst.  Ch.  126;  Wil- 
liams v.  Baker,  41  Md.  523;  Ashby 
V.  Eastern  R.  R.  Co.  5  Met.  368,  38 
Am.  Dec.  426;  Johnson  v.  Rayner, 
6  Gray,  107;  Pratt  v.  Lamson,  2 
Allen,  275;  Bardwell  v.  Ames,  22 
Pick.  333;  Woodcock  v.  Estey,  43 
Vt.  515  Jamaic  Pond  Aqueduct  v. 
Chandler,  9  Allen,  159;  Owen  v. 
Field,  102  Mass.  90;  Jackson  v. 
Halstead,  5  Cowen,  216;  Mixer  v. 
Reed,  25  Vt.  254;  Sheets  v.  Selden, 
2  Wall.  177,  17  L.  ed.  822 ;  Wiswall 
V.  Hall,  3  Paige,  313.  See,  also, 
Egremont  v.  Williams,  11  Q.  B. 
707;  Buszard  v.  Capel,  8  Barn.  & 
C.  141 ;  Smith  v.  New  York,  68  N. 
Y.  552;  Goodrich  v.  Eastern  R.  R. 
Co.,  %1  N.  H.  149. 


CHAP,    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1613 

intention,  which  is  to  be  arrived  by  a  consideration  of  all  the 
circumstances  attending  the  execution  of  the  deed.' 

§  862a.  Right  to  rent. — Where  land  is  in  possession 
of  a  tenant,  the  grantor  is  entitled  to  collect  all  the  rent  that 
is  past  due  at  the  time  of  the  sale,  and  the  grantee  is  entitled  to 
collect  all  that  subsequently  falls  due.*  The  title  to  rent  is  de- 
pendent on  that  of  the  property  and,  therefore  a  sale  of  leased 
land  passes  the  right  to  the  accruing  rent,^  and  as  the  gran- 
tee is  entitled  to  the  rent  falling  due  after  the  purchase,  his 
right  is  not  defeated  by  a  transfer  of  a  note  for  such  rent.' 
If  the  grantor  seeks  to  enforce  his  lien  for  the  unpaid  pur- 
chase money,  he  is  not  entitled  to  the  back  rent,''  nor  can  a 
purchaser  from  the  grantee  be  charged  with  rents  received 
upon  a  bill  to  enforce  the  equitable  lien  of  the  vendor.'  The 
rent  is  incident  to  the  reversion,^  and  passes  to  a  grantee  of 
the  reversion.^  But  if  a  note  is  given  for  the  rent  it  effects 
a  severance  of  it  so  that  It  will  not  pass  to  the  grantee  by  the 
deed.^  Rent  in  arrear  does  not  pass,'  and  if  the  grantor  con- 
veys by  a  warranty  deed  without  reserving  the  rent  subse- 
quently to  become  due,  he  cannot  recover  such  rent  from  the 
lessee.*  The  rule  that  a  deed  carries  with  it  the  rents  subse- 
quently accruing  will  not  necessarily  be  applied  unless  the 
payment  of  the  purchase  money  accompanies  the  execution 
of  the  deed.®     In  equity  a  purchaser  is  entitled  to  tlie  rent 

3Daum   V.   Conley,   27   Colo.   56,  ^  Kimball  v.  Walker,  71  111.  App. 

59  Pac.  753.  309. 

4  Page  V.  Lashley,  15  Ind.  152.  2  Kimball  v.  Walker,  71  III  App. 

6  Dixon    V.    Nicolls,    39    111.   372,  309. 

89  Am.  Dec.  312;  Chisholm  V.  Spul-  3  Damren    v.    American    Light   & 

lock,  87  Ga.  665.  13  S.  E.  571.  Power    Co.,    91    Me.    334,   40    AtL 

SKessee  v.   ^loan,  69  Miss.  369,  63. 

11  So.  631.  4  Allen   v.   Hall,   66   Neb.   84,  92 

'Medley  v.   Davis,  24  Tenn.    (5  N.  W.   171,  reversing  64  Neb.  256, 

Humph.)  387.  89  N.  W.  803. 

8  Kerskey  v.  Mitchell,  8  Ala.  402.  5  Eirick  v.  Leitschuh,  81  IlL  App. 

9  Stout   V.   Kean,  3   Har.    (Del.)  573. 
82. 


1614 


THE    LAW    OF    DEEDS. 


[chap.    XXV. 


and  profits,  from  the  time  fixed  for  the  completion  of  the  con- 
tract of  sale,  whether  he  takes  possession  at  that  time  or  not.* 
Title  to  rents  accruing  before  the  execution  of  the  deed  does 
not  pass  by  the  words  of  the  habendum — to  have  and  to  hold 


« Atchison  T.  &  S.  F.  R.  Co.  v. 
Chicago  &  W.  I.  R.  Co.,  162  111. 
332,  44  N.  E.  823,  35  L.R.A.  167, 
reversing  54  111.  App.  395.  The 
court  said  that  from  apparently 
diverse  and  conflicting  authorities 
where  a  bill  is  filed  for  specific 
performance,  the  following  prin- 
ciples might  be  deduced:  "(1) 
Where  the  contract  contains  no 
provision  as  to  possession  or  in- 
terest, if  the  vendee  takes  posses- 
sion he  must  pay  interest  from  that 
date:  Calcraft  v.  Roebuck,  1  Ves. 
Jr.  221 ;  Fludyer  v.  Cocker,  12  Ves. 
Jr.  25,  27 ;  Powell  v.  Martyr,  8  Ves. 
Jr.,  146;  Ballard  v.  Shutt,  L.  R. 
15  Ch.  Div.  122,  124;  Atty.  Gen.  v. 
Christ  Church,  13  Sim.  214,  217; 
Rutledge  v.  Smith,  1  McCord,  Eq. 
399;  Wilson  v.  Herbert,  76  ]\Id. 
489;  Bostwick  v.  Beach,  103  N.  Y. 
414,  423 ;  Boyle  v.  Rowand,  3 
Desauss,  Eq.,  555 ;  Phillips  v.  South 
Park  Comrs.  119  111.  626;  Steen- 
rod  V.  Wheeling,  P.  &  B.  R.  Co., 
27  W.  Va.  1 ;  Stevenson  v.  Max- 
well, 2  N.  Y.  408;  Binks  v.  Lord 
Rokeby,  2  Swanst.  222,  226;  Gib- 
son V.  Clarke,  1  Ves.  &  B.  500; 
Rhys  v.  Dare  Valley  R.  Co.,  L.  R. 
19  Eq.  93;  Paton  v.  Rogers,  6 
Madd.  &  G.  256;  Blount  v.  Blount, 
3  Atk.  636;  Land  v.  Moole,  31  N. 
J.  Eq.,  413;  Phillips  v.  Silvester, 
L.  R.  8  Ch.  173;  Monro  v.  Taylor, 
8  Hare,  51 ;  Cleveland  v.  Burrill, 
25  Barb.  532;  Hundley  v.  Lyons, 
5  Mtinf.  342.  7  Am.  Dec.  685; 
Wilson   ».    Herbert,   76    Md.   489; 


Philadelphia  W.  &  B.  R.  Co.  v. 
Gesner,  20  Pa.  240,  242,  Pom.  Cent. 
Sec.  430.  (2)  Where  the  contract 
contains  no  provision  as  to  posses- 
sion, but  provides  a  date  for  per- 
formance, and  for  the  payment  of 
interest  thereafter,  if  either  party 
is  in  wilful  default  equity  will  re- 
fuse to  enforce  the  terms  of  the 
agreement  for  the  benefit  of  the 
defaulting  party:  De  Visme  v.  De 
Visme,  1  Macn.  &  G.  326,  347; 
Lombard  v.  Chicago  Sinai  Congre- 
gation, 64  111.  477,  486,  75  111.  271, 
274;  Jones  v.  Mudd,  4  Russ.  Ch. 
122;  Monk  v.  Huskisson,  Id.  123, 
note  a  (1  Sim.  280)  ;  Leggott  v. 
Metropolitan  R.  Co.,  L.  R.  5  Ch. 
716;  Winterbottom  v.  Ingham,  14 
L.  J.  Q.  B.  N.  S.  298,  300;  Lofland 
V.  Maull,  1  Del.  Ch.  359,  12  Am. 
Dec.  106;  Tewart  v.  Lawson,  3 
Smale  &  G.  307,  312;  King  v.  Ruck- 
man,  24  N.  J.  Eq.  556;  Re  Riley 
to  Streatfield  (1886)  L.  R.  34  Ch. 
Div.  388.  (3)  Where  the  contract 
provides  a  time  for  performance, 
with  a  provision  for  prior  posses- 
sion, and  an  express  agreement  for 
interest  from  a  day  named,  and  the 
vendor  merely  neglects  or  is  unable 
to  perform,  in  such  case  the  vendee 
shall  have  the  rents  and  profits  ,  and 
pay  interest,  from  the  time  fixed 
by  the  contract :  Birch  v.  Joy,  3 
H.  L.  Cas.  565,  603 ;  Brockenbrough 
V.  Blythe,  3  Leigh,  619;  McKay  v. 
Melvin,  1  Ired.  Eq.  72 ;  Cowpe  v. 
Bakewell,  13  Beav.  421,  422;  Baxter 
V.  Brand,  6  Dana,  296." 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1615 

the  land  with  the  rents  and  profits.''  Where  an  agreement  was 
made  by  a  son  with  his  widowed  mother  that  he  should  take 
possession  of  a  tract  of  land,  in  which  she  retained  a  home- 
stead and  dower  interest  and  should,  as  rent,  pay  to  her  one 
third  of  the  crops  produced,  and  she,  by  a  quitclaim  deed, 
subsequently  conveyed  her  interest  to  another,  the  latter  was 
held  entitled  to  the  rents.  The  deed  operated  as  an  assign- 
ment of  the  rent  and  enabled  the  grantee  to  maintain  assump- 
sit} If  there  are  no  stipulations  to  the  contrary,  a  grantee — 
where  the  deed  and  contract  are  placed  in  escrow — who  pays 
the  purchase  price  and  interest  from  the  date  of  the  con- 
tract, has  the  right  to  the  rent  from  such  date.'  An  action  for 
the  rent  cannot  be  defeated  by  either  the  tenant  or  the  vendor 
by  showing  that  the  vendee  was  in  default  when  he  has  taken 
possession  under  his  contract.^  If  a  purchaser  refuses  to  con- 
summate the  purchase  and  is  sued  by  the  assignee  of  the  vend- 
or, who  recovers  the  amount  of  the  purchase  price  and  interest 
from  the  date  named  in  the  contract  as  the  time  at  which 
payment  was  to  be  made,  the  commencement  of  the  action  is 
an  affirmance  of  the  sale  by  the  assignee  and  enables  the  pur- 
chaser to  have  an  accounting  of  the  rents  and  profits  from 
such  date  during  the  assignee's  possession.^  A  deed  convey- 
ing land  with  the  remainder,  reversion,  "rents,  issues  and 
profits"  thereof  confers  upon  the  grantee  the  right  to  collect 
the  rent  subsequently  accruing,  and  his  right  to  recover  can- 
not be  defeated  by  the  refusal  of  the  tenant  to  attorn.' 

'Jolly  V.  Bryan,  86  N.  C.  457.  the    question    of    the    purchaser's 

8  Graham    v.    Le    Sourd,    99    111.  rights  to  rent :     Burden  v.  Thayer, 
App.  223.  44  Mass.   (3  Mete)  76;  Warner  v. 

9  Scott  V.  Sloan,  72  Kan.  545,  84  Bacon,  74  Mass.   (8  Gray)   408,  69 
Pac.    117.  Am.  Dec.  253;  Massachusetts  Hos- 

^Nearing     v.     Coop,     6     N.     D.  pital   Life   Ins.    Co.   v.   Wilson,    51 

345,  70   N.   W.    1044.  Mass.    (10   Met.)    127;    Buffum   v. 

2  Ferguson  v.  Epperl}-,  127  Iowa,  Deane,    70    Mass.    (4    Gray)    393; 

214,  103  N.  W.  94.  Winestine   v.    Ziglatzki-Marks    Co., 

'Perrin  v.  Lepper,  34  Mich.  292,  77  Conn.  404,  59  Atl.  496;  Parsons 

See  for  other  cases  I)earing  upon  v.  Lunsford,  55  S.  W.  885,  21  Ky. 


1616 


THE   LAW   OF   DEEDS. 


[chap.    XXV. 


§  862b.  Deed  on  last  day  of  rent  term. — Where  the 
owner  of  land  conveys  it  before  the  accrual  of  rent,  he  cannot 
recover  the  proportionate  amount  that  would  be  due  at  the 
time  of  the  delivery  of  the  deed.  Even  if  a  conveyance  is 
made  in  the  afternoon  of  the  last  day  of  a  monthly  term,  the 
rule  will  apply,  for  although  the  rent  may  accrue  on  the  last 
day  of  the  term,  it  does  not  accrue  until  that  day  is  ended, 
and  fractions  of  a  day  will  not  be  considered.*  The  rent  for 
a  period  of  time  is  considered  an  indivisible  item  and  this  is 
the  rule  although  there  has  been  no  eviction  by  the  holder  of 
the  new  title  or  an  attornment  to  him.^ 

§  862c.     Right  to  rent  when  vendor  retains  possession. 

—A  person  who  has  contracted  to  sell  land,  but  who  retains 
the  title  and  possession  is  held  to  the  same  liability  for  rents  and 
profits  as  a  mortgagee  in  possession.*    If  a  vendor  refuses  to 


Law  Rep.  1536;  Bourne  v.  Bourne, 
12  Ky.  Law  Rep.  (abstract)  467; 
Henshaw  v.  Bell,  10  Ky.  Law  Rep. 
444;  Dixon  v.  Smith,  181  Mass. 
218,  63  N.  E.  419;  Fitch  v.  Wind- 
ram,  184  Mass.  68,  67  N.  E.  965; 
Williams  v.  Williams,  118  Mich. 
477,  76  N.  W.  1039;  Holyoke 
Envelope  Co.  v.  United  States 
Envelope  Co.,  186  Mass.  498,  72  N. 
E.  58;  Kyles  v.  Tait's  Admr,  6 
Gratt.  (Va.)  44;  Hereford  Cat- 
tle Co.  V.  Powell,  13  Tex.  Civ.  App. 
496,  36  S.  W.  1033;  Kirksey  v. 
Mitchell,  8  Ala.  402;  Castleman  v. 
Belt,  41  Ky.  (2  B.  Mon.)  157;  Ladd 
V.  Lilly,  69  Ga.  395;  Medley  v. 
Davis,  24  Tenn.  (5  Humph.)  387; 
Eisley  v.  Spooner,  23  Neb.  470,  36 
N.  W.  659,  8  Am.  St.  Rep.  128; 
Lombard  v.  Chicago  Sinai  Congre- 
gation, 75  111.  271;  Owings  v.  Nor- 
ton, 8  Ky.   (1  A.  K.  Marsh)   573; 


Miller   v.    Stayner,   42   Ky.    (3    B. 
Mon.)   58,  38  Am.  Dec.  178;   Page 
v.  Lashley,  15  Ind.  152;   Matthews 
V.   Alsworth,  45   La.   Ann.   465,   12 
So.  518;  Muir  v.  Bozarth,  44  Iowa, 
499;  Bartlett  v.  Jones,  60  Me.  246 
Picot    V.    Douglass,    46    Mo.    497 
Patrick    v.    Roach,    21    Tex.    251 
Hundley  v.  Lyons,  5  Munf.    (Va.) 
342,  7  Am.  Dec.  685;  Van  Wagner 
V.    Van    Nostrand,    19    Iowa,    422; 
Winslow  V.  Rand,  29  Me.  362. 

*  Hammond    v.     Thompson,     168 
Mass.  531,  47  N.  E.  137. 

5  Dexter    v.    Phillips,    121    Mass. 
178;  Fuller  v.  Sweet,  6  Allen,  219 
Fames   v.   Feeley,    132   Mass.   346 
O'Brien    v.    Ball,    119    Mass.    128 
See,  also,  Cameron  v.  Little.  62  Me. 
250;   Robinson  v.  Deering,  56  Me. 
357. 

^Ashurst  v.   Peck,   101   Ala.  499, 
14   So.   54L 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1617 

perform  his  contract  to  convey,  retaining  possessiot'i  of  the 
land,  and  the  amount  of  the  rent  and  profits  is  less  than  the 
amount  due  for  interest  on  the  purchase  price,  such  interest 
will  not  be  allowed  to  him,  but  he  will  be  entitled  to  receive 
the  rents  and  profits."^  Where  the  vendor  has  surrendered 
possession,  and  afterwards,  without  the  purchaser's  consent, 
retakes  the  possession,  he  is  liable  to  the  purchaser  for  any 
rents  received  by  him  while  so  in  possession.'  Mr.  Justice 
Wright  states  the  rule  to  be  that  whether  the  vendor  would 
be  liable  for  rent,  if  let  into  possession  would  depend  entirely 
upon  circumstances.  "Thus,  if  he  took  possession  without  the 
consent  of  the  vendee,  and  lieM  the  same  either  by  himself 
or  tenant,  against  the  will  of  the  vendee,  he  could  not,  in  the 
absence  of  agreement,  use  the  same  without  actual  liability  to 
account,  and  also  be  entitled  to  the  purchase  money.  If,  on 
the  other  hand,  by  reason  of  the  long  delay  in  the  payment 
of  the  purchase  money,  the  supposed  inability  of  the  estate 
to  finally  redeem  the  property,  the  condition  of  the  property 
and  the  need  of  some  one  to  take  it  in  charge  or  the  like, 
the  defendant  was  allowed  to  enter  under  such  circumstances 
as  would  rebut  the  presumption  of  any  agreement  that  he  was 
to  account,  then  he  would  not  be  liable.  But,  inasmuch,  as  a 
rule,  the  vendor  or  mortgagee  is  entitled  alone  to  his  purchase 
or  redemption  money,  with  interest  and  is  bound  to  apply  to 
the  extinguishment  of  his  debt  any  rents  received  by  him,  it 
would  follow,  nothing  being  shown  to  the  contrary,  that  he 
would  be  held  for  the  rents, — especially  if  he  once  surrendered 
possession,  or  never  had  it,  and  subsequently  took  the  same 
without  the  vendee's  or  mortgagor's  consent."  ' 

■^  Crockett  v.  Gray,  39  Kan.  659,  vendor     retaining    possession,     see 

18   Pac.   595.  Siemers  v.  Hunt,  28  Tex.  Civ.  App. 

8  Shawhan  v.  Long,  26  Iowa,  488,  44,  66   S.   W.    115;  James  v.   Bur- 

96  Am.  Dec.   164.  bridge,   33   W.   Va.  272,    10   S.    E. 

8  Shawhan  v.  Long,  26  Iowa,  488,  396;  Tremont  &  Windsor  Hotel  Co., 

96  Am.  Dec.  164.     For  other  cases  v.   Gammon,  41   Tex.   Civ.   App.   1, 

as  to  the  Habihty  for  rents  of  91  S.  W.  337;  Hibbard  ?*,  Smith, 
Deeds,  Vol.  II.— 102               — 


1618 


THE    LAW    OF    DEEDS. 


[chap.    XXV. 


§  862d.     Liability  for  rent  of  purchaser  in  possession. — 

A  purchaser  who  takes  possession  but  is  subsequently  ousted 
on  account  of  the  inabiHty  of  the  vendor  to  convey  a  title  is 
not  responsible  for  rent.^  The  relation  of  landlord  and  ten- 
ant does  not  exist  where  possession  is  taken  by  the  purchaser.' 
If  by  mistake,  the  seller  puts  the  purchaser  into  possession  of 
more  land  than  he  has  bought,  and  which  does  not  belong  to 
the  seller,  the  purchaser  is  not  obligated  to  pay  rent  for  the 
same  for  the  period  during  which  he  was  so  in  possession.^ 
Where  a  purchaser  continues  in  possession,  however,  after  the 
title  of  his  vendor  had  been  extinguished,  he  is  accountable 
to  the  real  owner  for  rent.*  So,  where  the  purchaser  has  taken 
taken  possession  under  a  contract  of  purchase  and  has  failed 
to  make  any  payment,  it  is  proper  to  enter  judgment  for  rents 
and  profits  accruing  after  demand  for  possession  by  the  ven- 
dor.^ If  the  purchaser  is  evicted  in  an  action  of  ejectment 
the  interest  on  the  purchase  price  and  the  mesne  profits  are 
considered  as  equaling  each  other.® 

§  863.     Appurtenances  and  incidents. — The  grant  of  "a 
well"  includes  the  land  occupied  by  it.'     The  grant  of  a  tract 


56  Ky.  (17  B.  Mon.)  52;  Jones  v. 
Jones,  49  Tex.  683 ;  Wykofif  v.  Wy- 
kofiF,  3  Watts  &  S.  481. 

1  Wellborn  v.  Simonton,  88  N.  C. 
266. 

2FaIl  V.  Hazelrigg,  45  Ind.  576, 
IS  Am.  Rep.  278. 

3  Nelson  v.  Suddarth,  1  Hen.  & 
M.    (Va.)    350. 

4  Webb  V.  Conn,  11  Ky.  (1  Litt.) 
82,  13  Am.  Dec.  225. 

SHannan  v.  McNickle,  82  Cal. 
122,  23  Pac.  271. 

e  White  v.  Tucker,  52  Miss.  145. 
For  other  cases  as  to  liability  of 
purchaser  in  possession,  see,  Car- 
ter  V.    Walters,   91    Iowa,   727,   59 


N.    W.    201;    Bartlett    v.    Blanton, 
27  Ky.   (4  J.  J.  Marsh)  426;  Mor- 
ton's   Heirs    v.    Ridgeway,    26    Ky. 
(3  J.  J.  Marsh)  254;  Hook  v.  Fen 
tress,  62  N.  C.  229;  Thompson  v, 
Bower,    60    Barb.    463;    Bangs    v 
Barrett,   16  R.  I.  615,  18  Atl.  250 
Prater    v.    Miller,    10    N.    C.    628 
Blackwell   v.    Ryan,  21    S.   C.    112 
Harkness  v.  Mclntire,  76  Me.  201 
7  Mixer  v.  Reed,  25  Vt.  254.    See 
in  the  case  of  a  grant  of  a  "pool" 
or    a    "pit,"    Whitney   v.    Olney,    3 
Mason,  282;  Johnson  v.  Rayner,  6 
Gray,    107;    Wooley    v.    Groton,    2 
Gush.  305. 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION. 


1619 


of  land  passes  everything  standing  or  growing  upon  the  land." 
Other  land  cannot  be  considered  as  appurtenant  to  the  land 
granted.^  The  grant  of  a  sawmill  with  appurtenances  passes 
the  machinery  in  the  mill.^  In  brief,  a  deed  in  general  terms 
passes  everything  which  is  a  constituent  part  of  the  thing 
granted.^  A  water  right  will  pass  as  appurtenant  to  the  land.^ 
A  right  of  way  passes  when  the  land  conveyed  is  surrounded 
by  other  lands  of  the  grantor.*  But  in  order  that  the  grantee 
may  have  this  right  of  way,  the  way  must  be  one  of  necessity 
and  not  of  convenience.^     A  grant  of  a  house  includes  the 


8  Cook  V.  Whiting,  16  111.  481; 
Brackett  v.  Goddard,  54  Me.  313; 
Goodrich  v.  Jones,  2  Hill,  142. 
See,  also,  Mott  v.  Palmer,  1  N.  Y. 
364;  Terhune  v.  Elberson,  2  N.  J. 
L.  726;  Mcllvane  v.  Harris,  20 
Mo.  457,  64  Am.  Dec.  196,  Foote 
V.  Colvin,  3  Johns.  216,  3  Am.  Dec. 
478;  Chapman  v.  Long,  10  Ind.  465  ; 
Kittredge  v.  Woods,  3  N.  H.  503, 
4  Am.  Dec.  393. 

9  Jackson  d.  Yates  v.  Hathaway, 
15  Johns.  447,  8  Am.  Dec.  263; 
Leonard  v.  White,  7  Mass.  6,  5 
Am.  Dec.  19;  Riddle  v.  Littlefield, 
53  N.  H.  503,  16  Am.  Rep.  388; 
Harris  v.  Elliott,  10  Peters,  25,  9 
L.  ed.  333;  Blaine  v.  Chambers,  1 
Serg.  &  R.  169;  Ammidon  v.  Gran- 
ite Bank,  8  Allen,  293;  Tyler  v. 
Hammond,  11  Pick.  193. 

1  Farrar  v.  Stackpole,  6  Me.  154, 
19  Am.  Dec.  201.  See  Sparks  v. 
Hess,  15  Cal.  186. 

2  Wilson  V.  Hunter,  14  Wis.  684, 
80  Am.  Dec.  795;  Cave  v.  Crafts, 
53  Cal.  135;  Farrar  v.  Stackpole,  6 
Me.  154,  19  Am.  Dec.  201.  See 
Elliott  V.  Carter,  12  Pick.  436; 
James  v.  Plant,  5  Ad.  &  E.  479; 
McDonald  v.  McElroy,  60  Cal.  484; 
Sparks  v.  Hess,  15  Cal.  186. 


8  Farmer  v.  Ukiah  Water  Co.,  56 
Cal.  11.  Riparian  rights  are  appur- 
tenant to  land :  Alta  Land  etc.  Co. 
V.  Hancock,  85  Cal.  219,  20  Am. 
St.  Rep.  217.  Where  the  right  to 
the  use  of  a  ditch  and  water  exists 
in  favor  of  land,  is  an  essential 
part  of  the  value  of  the  land(  and 
perhaps  is  the  sole  inducement  to 
purchase,  it  passes  by  the  deed 
whether  the  word  "appurtenances" 
be  used  or  not :  Simmons  v.  Win- 
ters, 21  Or.  35,  28  Am.  St.  Rep.  121. 
A  water  right  acquired  and  used 
for  a-  beneficial  purpose  in  connec- 
tion with  land  is  an  appurtenance 
and  is  transferred  by  the  deed  un- 
less reserved :  Sweetland  v.  Olson, 
11  Mont.  27;  Crooker  v.  Benton,  93 
Cal.  365. 

*  Collins  v.  Prentice,  15  Conn.  39, 
38  Am.  Dec.  61 ;  Taylor  v.  Warn- 
aky,  55  Cal.  350.  See  Regan  v. 
Boston  Gaslight  Co.,  137  Mass.  37; 
Haven  v.  Seeley,  59  Cal.  494 ;  Reed 
V.  Spicer,  27  Cal.  27.  See  as  to 
dedication  of  road,  Deacons  v. 
Doyle,  75  Va.  258;  Patton  v.  Qnar- 
rier,   18  W.  Va.  447. 

5  Nichols  v.  Luce,  24  Pick.  102,  35 
Am.  Dec.  302;  Carey  v.  Rae,  58 
Cal.   160.     If  the  way  already  ex- 


1620  THE    LAW    OF    DEEDS.  [CHAP.    XXV. 

land  under  it.'  A  grant  or  reservation  "of  the  whole  of  a 
ciderhoiise  and  cidermill  standing  on  land,  so  long  as  the  said 
cider  house  shall  stand  thereon,  and  no  longer,"  passes  a  free- 
hold in  the  land  on  which  the  building  stands,  even  though  it 
has  ceased  to  be  used  as  a  ciderhouse.'  "The  general  rule 
of  law  is,  that  when  a  house  or  store  is  conveyed  by  the  owner 
thereof.,  everything  then  belonging  to,  and  in  use  for  the 
house  or  store,  as  an  incident  or  appurtenance,  passes  by  the 
grant.  It  is  implied  from  the  nature  of  the  grant,  unless  it 
contains  some  restriction,  that  the  grantee  shall  possess  the 
house  in  the  manner,  and  with  the  same  beneficial  rights,  as 
were  then  in  use  and  belonged  to  it.  The  question  does  not 
turn  upon  any  point  as  to  the  extinguishment  of  any  pre- 
existing rights  by  unity  of  possession.  But  it  is  strictly  a 
question,  what  passes  by  the  grant.  Thus,  if  a  man  sells  a 
mill,  which  at  the  time  has  a  particular  stream  of  water  flow- 
ing to  it,  the  right  to  the  water  passes  as  an  appurtenance,  al- 
though the  grantor  was,  at  the  time  of  the  grant,  the  owner 
of  all  the  stream  above  and  below  the  mill.  And  it  will  make 
no  difference  that  the  mill  was  once  another  person's,  and 
that  the  adverse  right  to  use  the  stream  had  been  acquired  by 
the  former  owner,  and  might  have  been  afterward  extin- 
guished by  unity  of  possession  in  the  grantor.  The  law  gives 
a  reasonable  intendment  in  all  such  cases  to  the  grant;  and 
passes  with  the  property  all  those  easements  and  privileges 
which  at  the  time  belong  to  it,  and  are  in  use  as  appurte- 

ists,  it  will  pass  as  an  appurtenant  Crawfordsville  v.  Boots  76  Ind.  32. 

easement:    Murphy  v.   Campbell,  4  See  Endsley  v.   State,  Id  Ind.  467, 

Pa.    St   484;    Pope   v.   O'Hara,  48  '  E^ty  v.   Currier,  98  Mass.  500. 

N.    Y.   455;    Harris    v.    Elliott    10  All  parts  of  a  deed  should  be  con- 


Peters,  25,  9  L.  ed.  333. 


sidered  so  that  every  part  may  have 
effect:  Herrick  v.  Hopkins,  23  Me. 
6  Allen  V.   Scott  21   Pick.  25,  32      317 ;  Thrall  v.  Newell,  19  Vt.  202, 

Am.  Dec.  2.38;   Bacon  v.  Bowdoin,       47    ^m.    Dec.    682;    Richardson    v. 

22  Pick.  410;  Stockwell  v.  Hunter,       Palmer,  38  N.  H.  212;  Foy  v.  Neal, 

11  Met,  455,  45  Am.  Dec.  220.    And      2  Strob.   156;   Byrd  v.  Ludlow,  77 

see  Johnson  v.  Raynor,  6  Gray,  110;      Va.  483. 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1621 

nances."  '  Still,  land  does  not  pass  as  a  mere  appurtenance  to 
other  land,^  nor  does  a  deed  convey  personal  property  sit- 
uated on  the  land  conveyed  unless  it  is  mentioned  in  the  deed.* 
Unless  the  deed  clearly  manifests  a  severance,  a  conveyance 
of  a  building  annexed  to  the  soil  passes  the  land  on  which 
the  building-  stands,^  and  hence,  in  the  absence  of  proof  to  the 
contrary,  it  is  presumed  that  buildings  pass  with  a  deed  of 
the  land.'  Unless  there  is  an  express  reservation,  a  deed  of 
a  hotel  will  carry  with  it  as  an  appurtenance,  the  hotel  sign 
and  post  notwithstanding  that  they  are  set  in  the  street  some 
feet  in  front  of  the  hotel.  This  will  be  the  construction  placed 
upon  the  deed  especially  where  no  claim  had  been  made  by 
the  grantor  for  a  considerable  period  of  time  and  the  grantee 
had  detached  the  sign  from  the  post.*  A  sale  of  land  will 
pass  an  inchoate  right  of  protection  from  overflow  by  water.' 
By  the  term  "appurtenances"  is  meant  only  incorporeal  ease- 
ments which  are  necessary  to  the  proper  enjoyment  of  the 
estate  conveyed.*  A  grant  carries  with  it  what  is  necessary 
to  the  enjoyment  of  the  grant,'  and,  therefore,  an  incident 
or  appurtenance  pass  by  a  deed  of  the  land  whether  speci- 
fied in  the  deed  or  not.'  Where  a  deed  describes  the  property 
conveyed  as  "all  the  house  and  premises  situated  on"  a  cer- 
tain lot  together  with  the  tenements  and  hereditaments  thereto 
belonging,  the  title  to  the  lot  will  pass  to  the  grantee  as  well 
as  that  of  the  house.'    As  a  deed  of  land  conveys  the  buildings 

» In  United  States  v.  Appleton,  1  Mich.  420,  6  L.R.A.  349,  43  N.  W. 

Sum.   492,    500.  879. 

9  Cole  V.  Haynes,  22  Vt.  588.  ^whyte   v.    Builders'   League   of 

1  Taylor  v.  Plunkett,  4  Pennewill  New  York,  164  N.  Y.  429,  58  N.  E. 
(Del.)    56   Atl.   384.  517,  52  N.  Y.  S.  65,  23  Misc.  Rep. 

2  Wade  V.  Odle,  21  Tex.  Civ.  App.  385,  54  N.  Y.  S.  822,  35  App.  Div. 
656,  54  S.  W.  786.  480. 

3Tharp   v.    Allen,   46    Mich.   3S9,  'Ingle   v.   Bottoms,    160   Ind.   IZ, 

9  N.  W.  443.  66  N.  E.  160. 

*  Redlon   v.    Barker  4   Kan.   445,  «  Ray  v.  Nally,  89  S.  W.  486,  28 

96   Am.    Dec.    180.  Ky.  Law  Rep.  421. 

6  Mathewson     v.      Hoffman,     77  ^  Bawden  v.  Hunt,  123  Mich.  295, 


1622 


THE    LAW    OF    DEEDS. 


[chap.    XXV. 


thereon,  evidence  of  the  intention  of  the  grantor  is  inadmis- 
sible.^ 

§  864.  Construction  of  particular  words. — Manifestly, 
no  general  rule  can  be  laid  down  as  to  the  construction  of 
particular  words.  The  primary  object  courts  have  in  view  is 
to  carry  out  the  intention  of  the  parties.  But  in  this  connec- 
tion it  may  not  be  unprofitable  to  mention  some  instances  in 
which  certain  words  have  been  construed.  The  words  "or" 
and  "and"  have  sometimes  been  construed  so  as  to  give  to 
one  its  opposite  meaning.^     The  word  "appurtenances"  refers 


82  N.  W.  52.  For  other  cases  as  to 
what  pass  or  do  not  pass  as  appur- 
tenances, see  Omaha  Bridge  &  Ter- 
minal Ry.  Co.  V.  Whitney,  68  Neb. 
389,  94  N.  W.  513,  modified  on  re- 
hearing in  68  Neb.  389,  99  N.  W. 
525 ;  Evans  v.  Welch,  29  Colo.  355, 
68  Pac.  776;  Holderman  v.  Miller, 
102  Ind.  356,  1  N.  E.  719;  Van 
Husan  v.  Omaha  Bridge  &  Termi- 
nal Ry.  Co.,  118  Iowa,  366,  92  N.  W. 
47;  Bagley  v.  Rose  Hill  Sugar  Co., 
Ill  La.  249,  35  So.  539;  Hastings  v. 
Grimshaw,  153  Mass.  497,  12 
L.R.A.  617,  27  N.  E.  521 ;  Stone  v. 
Stone,  116  Mass.  279;  Hammond  v. 
Abbott,  166  Mass.  517,  44  N.  E. 
620;  Peters  v.  Worth,  164  Mo.  431, 
64  S.  W.  490;  Mulrooney  v.  O'Bear, 
80  Mo.   App.  471. 

1  Isham  V.  Morgan,  9  Conn.  374, 
23  Am.  Dec.  361. 

2  Jackson  V.  Topping,  1  Wend. 
388,  19  Am.  Dec.  515;  Price  v. 
Hart,  PoL  645 ;  White  v.  Crawford, 
10  Mass.  183.  See,  also.  Will  d. 
Burrill  v.  Kemp,  3  Term.  Rep.  470; 
Brittain  v.  Mitchell,  4  Ark.  92; 
Chapman  v.  Dalton,  Plow.  289 ; 
Parker  v.  Carson,  64  N.  C.  563.  But 


see  Dumont  v.  United  States,  98  U. 
S.  143,  25  L.  ed.  65;  Thomas  v. 
Perry,  Peters  C  G.  56.  These 
words  are  often  interchanged  in  the 
construction  of  wills.  See  Miles  v. 
Dyer,  5  Sim.  435;  China  v.  White, 
5  Rich.  Eq.  426;  Kindig  v.  Dear- 
dorff,  39  111.  300;  Welsh  v.  Elliott, 
7  Serg.  &  R.  279;  Johnson  v.  Sim- 
cox,  31  Law  J.  Ex.  38;  6  HurL  & 
N.  6,  7  Jur.,  N.  S.,  349;  Brewer  v. 
Opie,  1  Call,  212 ;  Den  d  Dickenson 
V.  Jordan,  1  Murph.  380;  Parker 
V.  Parker,  5  Met.  134;  Tennell  v. 
Ford,  30  Ga.  707 ;  Holcomb  v.  Lake, 
24  N.  J.  L.  686 ;  Brooke  v.  Croxton, 
2  Gratt.  506;  Bostick  v.  Lawton,  1 
Spear,  258;  Thompson  v.  Teulon, 
22  L.  J.  Ch.  243 ;  Weddell  v.  Mun- 
dy,  6  Ves.  341;  Richardson  v. 
Spraag,  1  P.  Wms.  434;  Parkin  v. 
Knight,  15  Sim.  83;  Montagu  v. 
Nucella,  1  Russ.  165;  Harris  v. 
Davis,  1  Coll.  416;  Maynard  v. 
Wright,  26  Beav.  285 ;  Long  v.  Den- 
nis, 4  Burr.  2052;  Den  d.  Brown 
V.  Mugway,  15  N.  J.  L.  330;  Green 
V.  Harvey,  1  Hare,  428;  Created  v. 
Created,  26  Beav.  621 ;  Law  v. 
Thorp,  25  Law  J.  Ch.  75,  1  Jur.,  N. 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1623 

to  things  incidental  to  the  land  conveyed.  It  does  not  include 
other  land.^  In  the  premises  of  a  deed,  the  word  "also"  sig- 
nifies "likewise;  in  like  manner;  in  addition  to;  denotes  that 
something  is  added  to  what  precedes  it."  *  The  words  "have 
granted"  are  equivalent  in  signification  to  the  words  "do  here- 
by grant."  ^  If  the  expression  "from"  or  "to"  an  object  is 
used,  the  terminus  is  not  included. °  Where  a  deed  is  made 
to  a  person,  her  heirs  and  assigns,  with  a  habendum  to  her  sole 
and  separate  use,  free  from  the  control  or  interference  of  any 
husband  she  may  have,  and  to  the  use  of  "heir  heirs  and  as- 
signs forever,"  the  word  "heir"  will  be  taken  as  a  clerical  mis- 
take for  "her."  "^  The  term  "sedge  flat"  imports  a  tract  of 
land  below  high  water  mark.®  If  a  grantor  uses  the  words 
"reversion  and  remainder"  in  a  grant  of  land  for  a  public 
highway,  he  retains  nothing  which  he  can  afterward  convey, 
the  grantee  taking  the  reversionary  right.®  By  a  grant  "of 
the  use  of  the  timber,"  an  incorporeal  right  to  use  the  timber 
only  is  conveyed.    Title  to  the  soil  does  not  pass.*     The  word 

S.,  1082 ;  Bently  v.  Meech,  25  Beav.  v.   Elliott,   10   Peters,  25,  9  L.  ed. 

197.    So  in  the  case  of  statutes,  see  333 ;  Worthington  v.  Gimson,  2  El. 

Commonwealth  v.  Griffin,  105  Mass.  &  E.  618;   Plant  v.  James,  2  Nev. 

185;  O'Connell  v.  Gillespie,  17  Ind.  &  M.  517,  6  Nev.  &  M.  282,  4  Ad.  & 

459;   Hughes   v.    Smith,   64   N.    C.  E.  749,  5  Barn.  &  Adol.  791;  Evans 

494 ;   State  v.  Pool,  74  N.  C.  402 ;  v.  Angell,  26  Beav.  205 ;  Barlow  v. 

Boag  V.   Lewis,   1  Up.   Can.   Q.   B.  Rhodes,   1   Cromp.  &  M.  205. 

357;  Streeter  v.  People,  59  III.  595;  *  Panton  v.  Tefft,  22  111.  366. 

Boyles   v.   McMurphy,   55  111.  236;  ^  pjej-son  v.  Armstrong,   1   Iowa, 

Townsend  v.  Read,  10  Com.  B.,  N.  282,   63    Am.    Dec.    440. 

S.,  308;  People  v.  Sweetser,  1  Da-  6  Bonney  v.  Morrill,  52  Me.  252. 

kota,  308;  State  v.  Myers,  10  Iowa,  By  the  expression  "from  a  street," 

448;    State    v.    Brandt,    41    Iowa,  is   not   necessarily  meant   from  its 

593;  Eisfield  v.  Kenworth,  50  Iowa,  nearest  line:  Pittsburg  v.  Cluley,  74 

389;  Sparrow  v.  Davidson  College,  Pa.  St.  259. 

77   N.   C.   35;    Porter  v.    State,   58  '  Huntington      v.      Lyman,      138 

Ala.  66;  Ferrell  v.  Lamar,   1  Wis.  Mass.  205. 

19.  8  Church  v.  Meeker,  34  Conn.  421. 

3  Otis    V.    Smith,    9    Pick.    293;  9  Vaughn    v.    Stuzaker,    16    Ind. 

Helme  v.  Guy,  2  Murph.  341.     See  338. 

HiU  V.  West,  4  Yeates,  142;  Harris  i  Clark  v.  Way,  11  Rich.  621. 


1624 


THE    LAW    OF   DEEDS. 


[chap.    XXV. 


"adjacent"  signifies  "in  the  neighborhood  of." '  "All  the 
property  I  possess,"  used  in  a  conveyance,  includes  all  the  prop- 
erty owned  by  the  grantor,  in  remainder  as  well  as  in  imme- 
diate occupation.^  The  word  "convey,"  in  a  deed,  will  pass 
the  title.  It  is  equivalent  to  a  grant.*  By  the  use  of  the  term 
"ropewalk,"  such  land  as  is  exclusively  devoted  to  a  ropewalk 
will  pass.^  Where  land  is  conveyed  "with  all  the  buildings, 
ways,  privileges,  and  appurtenances  to  the  same  belonging," 
any  easement  or  appurtenances  already  existing  and  belonging 
to  the  land  will  pass.^  But  this  is  not  appropriate  language 
to  create  a  new  appurtenance  or  easement.''  Title  to  property 
will  pass  by  the  use  of  the  words  "go  to"  in  a  conveyance.' 
The  word  "quit"  is  equivalent  in  legal  effect  to  "sell"  or  "re- 
lease." ^  The  word  "by,"  used  descriptively,  means  "near" 
to  the  object  to  which  it  relates,  and  not  "in  immediate  con- 
tact with,"  and  "near"  is  a  relative  term.*  The  termini  are 
not  included  when  the  word  "between"  is  used.^  A  freehold 
may  be  conveyed  by  the  use  of  the  words  "assign  and  make 
over."  ^  If,  by  a  deed,  a  trust  is  created  for  the  benefit  "of 
the  present  as  well  as  the  future  heirs"  of  a  person,  the  word 
"heirs"  will  be  taken  to  mean  "children,"  as  there  can  be  no 
heirs  of  a  person  until  after  his  death.*     Where  a  deed  is 


2  Henderson  v.  Long,  Cooke,  128. 

2  Brantly  v.  Kee,  5  Jones  Eq.  332. 

*  Patterson  v.  Carneal,  3  Marsh. 
A.  K.,  eiS,  13  Am.  Dec.  208;  Lam- 
bert V.  Smith,  9  Or.   185. 

•Davis  V.  Handy,  37  N.   H.  65. 

^Kenyon  v.  Nichols,  1  R.  L  411. 

'  Kenyon  v.  Nichols,  supra. 

8  Folk  V.  Yarn,  9  Rich.  Eq.  303. 

^  Gordon  v.  Haywood,  2  N.  H. 
402. 

1  Wilson  V.  Inloes,  6  Gill,  121. 

2  Revere  v.  Leonard,  1  Mass.  91. 
3Hutchins  v.  Carleton,  19  N.  H. 

487.     Said  the  court :  "  'Assign  and 
make  over'  are  as  eflfectual,  when  a 


good  consideration  is  expressed,  as 
'quit  my  claim,'  or  many  other 
forms  that  have  been  sanctioned 
as  sufficient  to  raise  a  use  or  pass 
an  estate" :  See  Jackson  v.  Alexan- 
der, 3  Johns.  484,  3  Am.  Dec.  517. 
*Read  v.  Fite,  8  Humph.  328. 
See  Tucker  v.  Tucker,  78  Ky.  503; 
Twelves  v.  Nevill,  39  Ala.  175. 
For  instances  in  which  the  courts 
have  said  that  the  word  "heirs"  was 
necesasry  to  create  a  fee,  or  Iiave 
construed  the  term,  see  Jarvis  v. 
Quigley,  10  Mon.  B.  104;  Cromwell 
v.  Winchester,  2  Head,  389;  Duf- 
fum    V.    Hutchinson,    1    Allen,   58: 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION. 


1625 


made  to  A,  "and  to  the  children  of  said  A,  and  assigns  for- 
ever," the  children  of  the  grantee,  born  subsequently  to  the 
execution  of  the  deed  do  not  take  an  interest  in  the  land.^ 
The  words  "all  mineral  or  magnesia"  of  any  kind,  occurring 
in  a  reservation  in  a  deed,  include  chromate  of  iron  subse- 
quently found  upon  the  land.^  The  water  power  appurtenant 
to  a  mill  will  pass  under  the  term  "appurtenances."  It  is  not 
necessary  to  use  the  word  "privilege,"  although  it  may  have 
been  used  in  the  precedent  contract  of  sale.*^  But  an  entire 
railroad  will  not  pass  to  another  railroad  by  the  use  of  the 
word  "appurtenance"  only.^  The  words  "and  all  the  build- 
ings thereon,"  occurring  in  a  conveyance  of  land,  are  super- 
fluous, and  have  no  legal  operation.^     Concerning  the  word 


Baker  v.  Hnnt,  40  111.  264,  89  Am. 
Dec.  346;  Williams  v.  Allen,  17  Ga. 
81;  Calmes  v.  Buck,  4  Bibb,  453; 
Kay  V.  Connor,  8  Humph.  624,  49 
Am.  Dec.  690;  Leitensdorfer  v. 
Delphy,  15  Mo.  160,  55  Am.  Dec. 
137;  Young  v.  Marshall,  Hill  &  D. 
Sup.  93;  Roberts  v.  Forsyth,  3  Dev. 
26.  For  cases  in  which  the  words 
"more  or  less"  have  been  con- 
strued, see  Tyson  v.  Hardesty,  29 
Md.  305;  Blaney  v.  Rice,  20  Pick. 
62,  32  Am.  Dec.  204;  Brady  v. 
Hennion,  8  Bosw.  528;  Phipps  v. 
Tarpley,  24  Miss.  597;  Gentry  v. 
Hamilton,  3  Ired.  Eq.  376;  Hoflf- 
man  v.  Johnson,  1  Bland,  103 
Baynard  v.  Eddings,  2  Strob.  374 
Hunt  V.  Stull,  3  Md.  Ch.  24 
Sullivan  v.  Ferguson,  40  Mo.  79 
Nelson  v.  Mathews,  2  Hen.  &  M. 
164,  3  Am.  Dec.  620;  Poague 
V.  Allen,  3  Marsh.  J.  J.  421; 
Davis  V.  Sherman,  7  Gray,  291 ; 
Ship  V.  Swan,  2  Bibb,  82.  If  it  ap- 
pears, from  the  terms  of  the  deed, 
and    the    circumstances    connected 


with  its  execution,  that  the  grantor 
meant  children,  although  he  used 
the  word  "heirs,"  effect  will  be  giv- 
en to  it  accordingly,  and  the  deed 
will  not  be  defeated  by  the  general 
rule  that  a  conveyance  to  che  heirs 
of  a  living  person  is  void :  Heath  v. 
Hewitt,  127  N.  Y.  166,  13  L.R.A. 
46,  24  Am.  St.  Rep.  438.  See,  also, 
Vickars  v.  Leigh,  104  N.  C.  248; 
Griswold  v.  Hicks,  132  111.  494,  22 
Am.  St.  Rep.  549;  Broliar  v.  Mar- 
quis, 80  Iowa,  49.  The  term  "heirs 
at  law"  may  be  construed  as  chil- 
dren or  grandchildren,  where  such 
a  construction  will  effectuate  the 
grantor's  intention,  and  is  consist- 
ent with  legal  principles :  Waddell 
V.  Waddell,  99  Mo.  338,  17  Am.  St. 
Rep.  575.    See  §  846c,  atite. 

5  Glass  V.  Glass,  71  Ind.  392. 

8  Gibson   V.   Tyson,  5  Watts,   34. 

7  Pickler  v.  Stapler,  5  Serg.  &  R. 
109. 

8  Philadelphia  v.  Philadelphia  etc 
R.  R.  Co.,  58  Pa.  St.  253. 

^Crosby  v.  Parker,  4  Mass.  110. 


1626  THE   LAW   OF   DEEDS.  [CHAP.    XXV. 

"about,"  in  describing  the  length  of  a  line,  Weston,  J.,  said : 
"By  the  use  of  the  term  'about,'  it  may  be  understood  that 
direct  precision  in  the  length  of  line  was  not  intended."  "The 
use  of  the  word  'about'  indicated  that  the  parties  only  con- 
tracted for  a  number  of  feet  that  would  be  a  near  approxima- 
tion to  those  mentioned,  and  negatives  the  conclusion  that  en- 
tire precision  was  intended."  ^  If,  however,  the  place  of  the 
monument  by  which  the  distance  was  controlled  and  deter- 
mined cannot  be  ascertained,  the  right  of  the  grantee  is  con- 
fined to  the  number  of  rods  or  feet  given.  But  the  original 
location,  in  such  a  case,  may  be  shown  by  evidence  of  con- 
tinued possession.'  The  words  "to  her  and  her  representa- 
tives," in  a  limitation  by  deed,  can  signify  no  more  than  her 
executors  and  administrators.  Having  no  legal  effect,  these 
words  should  be  regarded  as  superfluous.*  Real  estate  will 
not  pass  by  granting,  assigning,  bargaining,  and  selling  to  A 
"all  and  all  manner  of  goods,  chattels,  debts,  moneys,  and  all 
other  things  of  me  whatsoever,  as  well  real  as  personal,  of 

1  Cutts  V.  King,  5  Me.  (5  to  carry  out  the  intention  of  the 
Greenl.)    482.  parties   an  elasticity  may  be  given 

2  Maryland  Construction  Co.  v.  to  the  call  in  regard  to  which  the 
Kuper,  90  Md.  529,  45  Atl.  197.  In  parties  have  not  considered  it  ad- 
Co-operative  Bld'g  Bank  v.  Haw-  visable  to  be  exact.  In  the  con- 
kins,  30  R.  I.  171,  73  Atl.  617,  the  struction  of  such  a  description  the 
court  through  Mr.  Justice  Sweet-  main  intention  of  the  parties  should 
land  says :  "The  use  of  this  word  in  be  sought,  and  if  the  intention  can 
descriptions  as  in  ordinary  use,  in-  be  discovered,  and  it  is  not  in  con- 
dicates  that  exactness  is  not  at-  flict  with  the  express  language  of 
tempted,  and  that  an  estimate  is  in-  the  description,  such  construction 
tended  to  be  given,  rather  than  a  within  reasonable  limits,  should  be 
precise  measurement,  that  the  par-  given  to  the  estimated  measurement 
ties  are  trying  to  provide  that  their  as  will  carry  out  the  intention  of 
main  intention  as  to  the  grant  shall  the  parties." 

not  be   defeated,   by  a  precise  de-  3  Cutts     v.      King,     5      Me.      (5 

scription  in  some  particular  where-  Greenl.)     482.       See     Purinton     v. 

in  precision  is  not  then  possible  to  Sedgley,  4  Me.   (4  Greenl.)  286. 

them.    When  the  word  appears  in  a  *  McLaurin  v.  Fairly,  6  Jones  Eq. 

description,  as   in   that   under  con-  375. 
sideraton,   it  is  notice  to   all,   that 


CHAP.    XXV.]       PRINCIPLES   OF    CONSTRUCTION. 


1627 


what  kind,  nature,  and  quality  soever,"  "to  have  and  to  hold 
the  same  and  ever)^  part  and  parcel  thereof,  unto  the  said  A, 
his  executors,  administrators,  and  assigns  forever."  ^  An  in- 
strument, although  in  form  a  deed,  is  testamentary  in  its  char- 
acter  if  the  grantor  in  it  declares  that  it  is  made  on  the  condi- 
tion that  "I  reserve  the  right  to  alter,  change,  or  entirely  abol- 
ish this  deed  if  I  so  desire  during  my  life,  and  that  I  retain 
all  of  the  said  property  during  my  life,  and  have  the  control 
of  the  same,  and  that  this  deed  do  not  take  effect  until  after 
my  death."  ° 


5  Ingell   V.   Nooney,  2  Pick.   362, 
13  Am.  Dec.  434. 

6  Cunningham  v.  Davis,  62  Miss. 
366.  See  for  a  similar  case,  Leaver 
V.  Gauss,  62  Iowa,  314.  A  wife's 
inchoate  right  of  dower  is  released 
by  a  clause  in  a  deed  signed  by 
husband  and  wife,  stating  that: 
"We  hereby  release  and  relinquish 
all  right,  claim,  and  interest  what- 
ever, in  and  to  said  lot  of  ground 
which  is  given  by,  or  results  from 
all  laws  of  this  State,  pertaining  to 
the  exemption  of  homestead  or 
dower":  Attwater  v.  Butler,  9 
Baxt.  (Tenn.)  299.  But  by  a  clause, 
"and  in  the  event  of  sale,  we  waive 
all  equity  of  redemption  and  repur- 
chase and  homestead  in  said  prop- 
erty," only  the  right  of  homestead, 
and  not  dower,  is  conveyed :  Mc- 
Kinley  v.  Kuntz,  9  Baxt.  (Tenn.) 
299.  A  deed  conveying  a  building, 
and  "all  fixtures  of  every  description 
attached  to  said  building,"  will  not 
be  construed  as  conveying  fixtures 
not  attached  to  the  building:  Stet- 
tauer  v.  Hamlin,  97  111.  312.  In  a 
deed  conveying  several  tracts  of 
land,  the  grantor  reserved  "all  the 
pine  timber  on  said  tracts,  together 
with  the  right  and  privilege  to  cut, 


remove,  take,  and  carry  away  the 
same,  or  any  part  thereof,  at  any 
and  all  times;  also  the  right  of  in- 
gress   and    egress    at    any    and    all 
times  for  the  space  of  twelve  years 
from   the   date   above  written,   for 
the  purpose  so  as  aforesaid."    The 
court  held  that  the  parties  having 
determined  their  own  time  for  the 
removal  of  the  timber,  the  right  of 
entry,  as  well  as  the  right  of  entry 
therein,  fell    when  that  time  expired : 
Saltonstall  v.  Little,  90  Pa.  St.  422, 
35     Am.     Rep.     683.       For     other 
cases  in  which  particular  words  and 
clauses    have    been    construed,    see 
Bellamy   v.    Bellamy,   Adm.   6   Fla 
62;    Mundy    v.    Vawter,    3    Gratt 
518;  Hall  v.  Thayer,  5  Gray,  523 
Barton    v.    Morris,    15    Ohio,   408 
Peaks    V.    Blethen,    11    Me.    510 
Sowle  V.  Sowle,  10  Pick.  376 ;  Den- 
nison  v.  Ely,  1  Barb.  610;  Brantly 
V.  Kee,  5  Jones  Eq.  332;  Harris  v 
Elliott,  10  Peters,  25,  9  L.  ed.  333 
Hutchins  v.  Carleton,  19  N.  H.  487 
Braman   v.    Dowse,    12   Gush.    227 
Melsheimer    v.    Gross,    58    Pa.    St. 
412;   Smith  v.  Read,  51   Conn.   10 
Perry  v.   Calhoun,  8  Humph.   551 
Hawk  v.   McCullough,  21   III.  220 
Mulford  V.  Le  Franc,  26  Cal.  88 
McLeroy    v.    Duckworth,    13    La, 


1628 


THE   LAW    OF   DEEDS. 
PART  II. 


[chap.    XXV. 


COMMUNITY   PROPERTY. 


§  865.     Community  property — In  what  States  exists. — 

It  may  be  proper  in  this  place  to  note  some  of  the  rules  gov- 
erning- community  property.  At  common  law  the  husband 
and  wife  did  not  by  virtue  of  that  relation  hold  property  in 


Ann.  410  J  Brackett  v.  Bidlon,  54 
Me.  426;  Blossom  v.  Van  Court,  34 
Mo.  390,  86  Am.  Dec.  114;  King  v. 
Gilson,  Z2  111.  348,  83  Am.  Dec. 
269 ;  Schenley  v.  Pittsburgh,  104  Pa. 
St.  472;  Claunch  v.  Allen,  12  Ala. 
159 ;  MuUer  v.  Boggs,  25  Cal.  175 ; 
Roebuck  v.  Duprey,  2  Ala.  535 ; 
Brenham  v.  Davidson,  51  Cal.  352; 
Powell  V.  Lyies,  1  Murph.  348; 
Rickets  v.  Dickens,  1  Murphy.  343,  4 
Am.  Dec,  555;  Williams  v.  Allen, 
17  Ga.  81 ;  Cromwell  v.  Winchester, 
2  Head,  389;  Adams  v.  Marshall, 
138  Mass.  228,  52  Am.  Rep.  271; 
Hartman  v.  Read,  50  Cal.  485; 
Latham  v.  Morgan,  1  Smedes  &  M. 
611;  Carter  v.  Soulard,  1  Mo.  576; 
Gratz  V.  Ewalt,  2  Binn.  95 ;  White- 
hill  V.  Gotwalt,  3  Pa.  113;  Pretty- 
man  V.  Wilkey,  19  111.  235;  Seit- 
zinger  v.  Weaver,  1  Rawle,  377; 
Freeman  v.  Pennock,  3  Pa.  313 ; 
Calmes  v.  Buck,  4  Bibb,  453;  Fratt 
V.  Toomes,  48  Cal.  28;  Hartwell  v. 
Camman,  10  N.  J.  Eq.  (2  Stockt. 
Ch.)  128,  64  Am.  Dee.  448;  Jarvis 
v.  Quigley,  10  Mon.  B.  104;  Lei- 
tensdorfer  v.  Delphy,  15  Mo.  160, 
55  Am.  Dec.  137;  Young  v.  Mar- 
shall, Hill  &  D.  Sup.  93;  Roberts 
V.  Forsyth,  3  Dev.  26;  Kirkendall 
V.  Mitchell,  3  McLean,  144;  Amer- 
ican Academy  of  Music  v.  Smith, 
54    Pa.     St.     130;     Newmarket    v. 


Smart,  45  N.  H.  87;  Congregational 
Society  v.  Stark,  34  Vt.  243;  Brad- 
ley v.  Rice,  13  Me.  198,  29  Am.  Dec. 
501 ;  Gambril  v.  Doe,  8  Blackf.  140, 
44  Am.  Dec.  760;  Slosson  v.  Lynch, 
43  Barb.  147 ;  Swiney  v.  Swiney,  14 
Lea  (Tenn.),  316;  Close  v.  Bur- 
lington, Cedar  Rapids  etc.  Ry.  Co., 
64  Iowa,  149 ;  Wallace  v-  Miller,  52 
Cal.  665;  Montgomery  v.  Sturdi- 
vant,  41  Cal.  290;  Talbert  v.  Hop- 
per, 42  Cal.  397 ;  Vance  v.  Pena,  33 
CaL  631;  Stafford  v.  Lick,  10  Cal. 
12;  Chapman  v.  Excelsior  Canal 
Co.,  17  Cal.  231 ;  Stanway  v.  Rubio, 
31  Cal.  41;  Peaks  v.  Blethen,  77 
Me.  510;  Adams  v.  Marshall,  138 
Mass.  228,  52  Am.  Rep.  271 ;  Kemp 
V.  Bradford,  61  Md.  330;  Pugh  v. 
Mays,  60  Tex.  191;  Warner  v. 
Sandusky,  Mansfield  etc.  R.  R.  Co., 
39  Ohio  St.  70;  Hummelman  v. 
Mounts,  87  Ind.  178;  Weir  v.  Sim- 
mons, 55  Wis.  637;  Maker  v.  Ma- 
ker, 74  Me.  104.  See,  also,  Arnold 
V.  Hymer,  2  McCrary,  C  C.  631; 
Cannon  v.  Barry,  59  Miss.  289; 
Steuart  v.  Gage,  59  Miss.  558; 
Bailey  v.  Willis,  56  Tex.  212;  Little 
V.  Allen,  56  Tex.  133 ;  Lunt  v.  Lunt, 
71  Me.  377;  Powers  v.  Patten,  71 
Me.  583;  Bronson  v.  Lane,  91  Pa. 
St.  153;  Tifft  v.  BuflFalo,  82  N.  Y. 
204;  Blair  v.  Osborne,  84  N.  C. 
417;    Jeffrey    v.    Hursh,   42    Mich. 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1629 

joint  ownership.  We  shall  not  stop  here  to  consider  the 
property  rights  of  husband  and  wife  as  they  existed  at  com- 
mon law,  but  pass  to  the  consideration  of  what,  in  some  of 
the  States  of  the  Union,  is  made,  by  statutory  provisions,  com- 
munity property.  The  statutes  of  California  may  be  selected 
as  an  example.  In  that  State,  the  Code  provides :  "All  prop- 
erty of  the  wife,  owned  by  her  before  marriage,  and  that  ac- 
quired afterward  by  gift,  bequest,  devise,  or  descent,  with 
the  rents,  issues,  and  profits  thereof,  is  her  separate  property. 
The  wife  may,  without  the  consent  of  her  husband  convey  her 
separate  property."  "^  "All  property  owned  by  the  husband 
before  marriage,  and  that  acquired  afterward  by  gift,  bequest, 
devise,  or  descent,  with  the  rents,  issues,  and  profits  thereof, 
is  his  separate  property."  '  "All  other  property  acquired  after 
marriage  by  either  husband  or  wife,  or  both,  is  community 
property."  '  In  other  States,  where  earnings  subsequent  to 
marriage  are  made  community  property,  similar  statutes  exist. 
In  Texas,  it  is  provided :  "All  the  effects  which  both  husband 
and  wife  reciprocally  possess  at  the  time  of  the  marriage  may 
be  dissolved,  and  shall  be  regarded  as  common  effects  or  gains, 
unless  the  contrary  be  satisfactorily  proved."  ^  "All  prop- 
erty, both  real  and  personal,  of  the  husband,  owned  or  claimed 
by  him  before  marriage,  and  that  acquired  afterward  by  gift, 
devise,  or  descent,  as  also  the  increase  of  lands,  or  slaves  thus 
acquired,  shall  be  his  separate  property.  All  property,  both 
real  and  personal,  of  the  wife  owned  or  claimed  by  her  before 
marriage  and  that  acquired  by  gift,  devise,  or  descent,  as  also 
the  increase  of  all  lands  thus  acquired,  shall  be  the  separate 
property  of  the  wife."  ^     "All  property  acquired  by  either 

563;    Look    v.    Kenney,    128    Mass.  301;    Newman    v.    Ashe,    9    Baxt. 

284;  Eysaman  v.  Eysaman,  24  Hun,  (Tenn.)  380. 
430;  Hinkle  v.  Hinkle,  69  Ind.  134;  ^  Qvil   Code  Cal.   §   162. 

Atkinson    v.    Dixon,    70    Mo.    381;  8  civil   Code  Cal.  §   163. 

Gilkey    v.    Shepard,    51    Vt    546;  » Civil    Code    Cal.    §    164. 

Bouknight  v.   Epting,   11   S.  C.  71;  i  Paschal's   Tex.  Dig.   art.  4638. 

Rankin  t.  Warner,  2  Lea  (Tenn.),  *  Paschal's   Tex.    Dig.    art.   4641. 


1630 


THE   LAW   OF   DEEDS. 


[chap.    XXV. 


husband  or  wife  during  the  marriage,  except  that  which  is  ac- 
quired in  the  manner  specified  in  the  preceding  section,  is  com- 
mon property."  ^  Statutes  to  the  same  effect  exist  in  Louisi- 
ana, Nevada,  Idaho,  Arizona,  New  Mexico  and  Washington,* 
and  also  in  Porto  Rico.* 


§  866.  The  civil  law. — The  rule  as  to  the  property 
rights  of  husband  and  wife  in  the  civil  law,  is  thus  stated  by 
Mr.  Burge :  "There  is  a  marked  distinction  between  the  civil 
law  and  other  systems  of  jurisprudence  in  the  civil  rights  and 
capacities  of  the  husband  and  wife.  It  does  not  recognize  in 
the  husband  and  wife  that  union  of  persons,  by  which  the 
rights  of  the  wife  were  incorporated  and  consolidated  during 
the  coverture  with  thos?  of  the  husband.  It  does  not,  there- 
fore, subject  her  to  those  civil  disabilities  which  must  have  re- 
sulted from  that  union.  The  husband  and  wife  are  regarded 
as  distinct  persons,  with  separate  rights,  and  capable  of  hold- 


sPaschal's   Tex.    Dig.    art.   4642. 

*  Louisiana  Civil  Code,  §  2371; 
Comp.  Laws  of  Nevada,  p.  56, 
§§  151,  152;  Comp.  Laws  of  Ari- 
zona, ed.  1877,  p.  328,  §§  1967-1969; 
Laws  of  Idaho,  Session  1866-67,  p. 
65,  §§  1,  2;  Code  of  Washington 
Ty.,  ed.  1881,  §§  2400-2411.  See 
generally  on  the  question  of  com- 
munity property.  Rich  v.  Tubbs,  41 
Cal.  34;  Le  Blanc  v.  Le  Blanc,  20 
La.  Ann.  207 ;  Dunham  v.  Chatham, 
21  Tex.  247,  73  Am.  Dec.  228; 
Brown  v.  Cobbs,  10  La.  181 ;  Rice 
v.  Rice,  21  Tex.  66;  Hughey  v. 
Barrow,  4  La.  Ann.  249;  Comeau 
v.  Fontenot,  19  La.  407;  Menchaca 
v.  Field,  62  Tex.  135;  Cannon  v. 
Murphy,  31  Tex.  407;  Pancoast  v. 
Pancoast,  57  Tex.  1320;  Porter  v. 
Chronister,  58  Tex.  53 ;  Simeon  v. 
Perrodin,  35  La.  Ann.  931 ;  Lake  v. 
Lake,  52  Cal.  428;   Sexton  v.  Mc- 


Gill,  2  La.  Ann.  190;  Morris  v. 
Covington,  2  La.  Ann.  259;  Lawson 
v.  Ripley,  17  La.  251;  Denegre  v. 
Denegre,  30  La.  Ann.  pt.  1,  275 ; 
Lewis  V.  Lewis,  18  Cal.  659;  How- 
ard v.  York,  20  Tex.  670;  George 
V.  Ransom,  15  Cal.  323,  76  Am.  Dec. 
490;  De  Blane  v.  Hynch,  23  Tex. 
28;  Cartwright  v.  Cartwright,  18 
Tex.  296;  Spear  v.  Ward,  20  Tex. 
674;  Forbes  v.  Dunham,  24  Tex. 
611;  Bateman  v.  Bateman,  25  Tex. 
270;  Bonner  v.  Gill,  5  La.  Ann. 
630;  Ducrest  v.  Bijeau,  8  Marf'-i, 
N.  S.,  198;  Love  v.  Robertson,  6 
Tex.  6,  56  Am.  Dec.  41 ;  Pearce  v. 
Jackson,  61  Tex.  642;  Johnson  v. 
Burford,  39  Tex.  242;  Claiborne  v. 
Tanner.  18  Tex.  72;  McAllister  v. 
Farley,  39  Tex.  552. 

5  Rev.    St.    &    Codes    (1902)    §§ 
1310-1347. 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1631 

ing  distinct  and  separate  estates.  The  wife  was  alone  re- 
sponsible for  and  might  be  sued  and  was  competent  to  sue, 
on  her  own  contracts  and  engagements,  and  the  husband  could 
not  subject  her  or  her  property  to  any  liability  for  his  debts  or 
engagements.  The  coniinunio  bonoruiiij  which  is  to  be  found 
in  so  many  systems  of  jurisprudence,  might  have  been  part  of 
the  Roman  law  at  an  earlier  period  of  its  history,  but  it  had 
long  before  the  compilation  of  the  digest  fallen  into  disuse. 
The  parties  might,  by  their  nuptial  agreement,  adopt  it,  but 
it  had  then  ceased  to  be  a  provision  of  the  law.  The  peculiari- 
ties of  the  civil  law  in  these  respects,  may  be  referred  to  the 
disuse  into  which  the  formal  rites  of  marriage,  per  confarrea- 
tionem  et  coeniptionem,  had  fallen.  Marriages  celebrated  ac- 
cording to  those  rites,  gave  to  the  husband  and  wife  a  com- 
munity of  interest  in  the  property  of  each  other.  By  the  mar- 
riage per  cocniptionem,  the  husband  was  considered  to  have 
purchased  his  wife.  She  ceased  to  be  under  her  parental 
power,  and  became  subject  to  the  power  of  her  husband.  All 
her  property  belonged  to  him,  and  she  succeeded  to  it  on  his 
death.  Long  before  the  reign  of  Justinian,  marriages  per 
iisum,  that  is  by  cohabitation  as  man  and  wife,  had  superseded 
the  more  formal  marriages.  The  marriage  per  usum  did  not 
alter  the  status  of  the  female,  nor  subject  her  to  the  marital 
power,  but  she  still  remained  under  that  of  her  father."  ^  The 
dos  was  the  property  brought  by  the  wife  at  the  marriage,  con- 
tributed either  by  herself,  or  by  some  other  person  for  her 
benefit.  The  husband  contributed  his  donatio  propter  nuptias, 
or  antidos,  but  in  all  other  property  they  each  retained  the 
same  rights  as  they  would  have  if  unmarried.'''  "The  hus- 
band acquires  a  dominium  in  the  dotal  property,  which  is  de- 
terminable on  the  dissolution  of  the  marriage,  unless  he  has 
become  the  purchaser  of  it  at  an  estimated  value.  In  that 
case,  although  it  is  not  determinable,  it  is  competent  for  the 

^  1   Burge,  Colonial  and  Foreign  "^  1   Burge,  Colonial  and  Foreign 

Laws,  263,  264.  Laws,  264. 


1632  THE    LAW    OF    DEEDS.  [CHAP.    XXV. 

wife,  if  he  be  insolvent,  to  recover  so  much  of  the  dotal  prop- 
erty as  still  remains  in  his  possession.  The  husband,  in  re- 
spect of  his  dominium,  may  recover  in  his  own  name  any  part 
of  it  which  is  withheld.  He  may  even  institute  an  action 
against  his  wife,  if  she  has  withdrawn  any  part  of  it.  He  has 
the  administration  and  management  of  the  dotal  property,  and 
receives  for  his  own  use  its  annual  fruits,  rents,  and  profits,  in 
consideration  of  which  he  sustains  the  expenses  incident  to 
the  marriage.  If  a  debt  owing  by  him  to  his  wife  be  the  sub- 
ject of  dos,  he  is  not  chargeable  with  interest  on  it  during 
the  coverture.  He  has  the  power  of  alienating  such  part  of 
the  dotal  property  as  is  personal,  but  he  cannot,  even  with  her 
consent,  alienate  or  subject  to  any  charge  or  encumbrance  any 
part  of  it  which  is  immovable  or  real,  unless  he  had  become 
the  purchaser  of  it  at  an  estimated  price.  An  alienation  or  a 
charge  on  the  dotal  immovable  property  is,  ipso  jure,  void. 
But  it  may  be  sustained,  if  the  wife  has  for  two  years  after 
the  alienation  consented  to  it,  or  the  price  for  which  it  has 
been  sold  has  been  invested  in  the  purchase  of  real  property, 
or  equally  advantageous."  ' 

§  867.  In  other  countries. — According  to  the  Code 
Napoleon,  the  community  is  composed  actively:  "1st.  Of 
all  the  movable  property  which  the  married  parties  possessed 
at  the  time  of  the  celebration  of  the  marriage,  together  with 
all  movable  property  which  falls  to  them  during  the  marriage, 
by  title  of  succession,  or  even  of  donation,  if  the  donor  have 
not  expressed  himself  to  the  contrary.  2d.  Of  all  the  fruits, 
revenues,  interests,  and  arrears,  of  what  nature  soever  they 
may  be,  fallen  due  or  received  during  the  marriage,  and  aris- 
ing from  the  property  which  belonged  to  the  married  persons 
at  the  time  of  the  celebration,  or  from  such  as  have  fallen  to 
them  during  the  marriage  by  any  title  whatsoever.  3d.  Of 
all  the  immovables  which  are  acquired  during  the  marriage."  " 

8  Btirge,     Colonial     and     Foreign  ^  Code        Napoleon,        Richards' 

Laws,  269,  270.  Translation,  §  1401. 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1633 

"Every  immovable  is  reputed  to  have  been  acquired  in  com- 
munity, unless  it  be  proved  that  one  of  the  married  parties 
had  the  property  or  legal  possession  thereof  at  a  period  anterior 
to  the  marriage,  or  that  it  has  fallen  to  such  party  since,  by 
title  of  succession  or  donation."  ^  "The  immovables  which 
married  persons  possess  on  the  day  of  the  celebration  of  the 
marriage,  or  which  fall  to  them  during  its  continuance  by  title 
of  succession,  do  not  enter  into  community.  Nevertheless,  if 
one  of  the  married  persons  have  acquired  an  immovable  sub- 
sequently to  the  contract  of  marriage  containing  condition  of 
community,  but  before  the  celebration  of  the  marriage,  the 
immovable  acquired  in  such  interval  shall  enter  into  commun- 
ity, unless  the  acquisition  have  been  made  in  the  execution  of 
some  article  of  marriage;  in  which  case  it  shall  be  regulated 
according  to  the  agreement."  ^  "Donations  of  immovables 
which  are  made  during  marriage  to  one  only  of  the  married 
parties,  do  not  fall  into  community,  but  belong  to  the  donee 
only,  unless  the  donation  expressly  declare  that  the  thing 
given  shall  belong  to  both  in  community."  '  "An  immovable, 
abandoned  or  ceded  by  the  father,  mother,  or  other  ancestor 
to  one  of  the  two  married  parties,  either  to  satisfy  what  shall 
be  owing  to  such  party,  or  on  condition  of  paying  debts  due 
from  the  donor  to  strangers,  does  not  enter  into  community, 
saving  compensation,  or  indemnity."  *  "An  immovable  ac- 
quired during  marriage,  by  title  of  exchange  for  an  immovable 
belonging  to  one  of  the  two  married  parties,  does  not  enter 
into  community,  but  is  substituted  instead  and  in  place  of  that 
which  was  alienated,  saving  recompense  if  there  be  any  dif- 
ference of  value."  ^     The  civil  law  with  modifications  also  pre- 

1  Code  Napoleon,  §  1402.  is  composed  passively :  1st.     Of  all 

2  Code  Napoleon,  §  1404.  personal   debts   which   the   married 

3  Code  Napoleon,  §  1405.  parties  were  encumbered  on  the  day 
*Code  Napoleon,  §  1406.  of  the  celebration  of  their  mar- 
5  Code    Napoleon,    §    1407.  See       riage,  or  with  which  those  succes- 

Code   of    Lower   Canada,    §§    1268,       sions  were  charged,   which   fell  to 
1269,    1270.    1384.     The  community       them   during   the   marriage,   saving 
Deeds,  Vol.  II.— 103 


1634 


THE    LAW    OF    DEEDS. 


[chap.    XXV. 


vails  in  Holland  and  in  Spain.* 


compensation  for  those  relating  to 
immovables  proper  to  one  or  the 
other  of  the  married  parties.  2d. 
Of  debts,  as  well  in  capital  sums  as 
in  arrears  of  interest,  contracted  by 
the  husband  during  the  communitj^ 
or  by  the  wife  with  her  husband's 
consent,  saving  compensation  in 
cases  where  there  is  ground  for  it. 
3d.  Of  those  arrears  and  interest 
only  of  rents  or  debts  due  to  oth- 
ers whicli  are  personal  to  the  two 
married  parties.  4th.  Of  usufruc- 
tuary repairs  of  immovables  which 
do  not  enter  into  community.  5th. 
Of  alimony  of  married  persons,  of 
the  education  and  maintenance  of 
children,  and  of  every  other  charge 
of  marriage." 

6  Mr.  Burge  says  concerning  the 
law  of  Holland :  "The  provisions  of 
the  civil  law,  which  establish  the 
dos  and  aitidos,  and  allow  the  hus- 
band and  wife  to  retain  the  sepa- 
rate and  absolute  ownership  of  the 
rest  of  their  property,  might  be 
adopted  by  parties  in  their  nuptial 
contracts,  but  they  formed  no  part 
of  the  law  of  Holland.  The  prop- 
erty of  the  husband  and  wife,  and 
their  rights  and  -interests,  stante 
matrimonio,  are  subject  either  to 
the  disposition  which  they  have 
themselves  made  by  contract  on 
their  marriage,  or  to  that  which  the 
law  makes.  ...  By  the  law  of 
Holland,  the  communio  bonorum 
took  place  as  the  immediate  conse- 
quence of  marriage,  and  com- 
menced from  the  moment  of  its 
celebration,  either  in  facie  ecclcsm, 
or  before  the  magistrate.     But  ac- 


cording to  some  codes  the  title  to 
it  was  not  complete,  unless  there 
had  been  an  ingressusthori,  whilst 
others  required  that  there  should 
have  been  annua  cohabitatio  et 
convictus.  The  communio  bonorum 
prevails,  unless  the  husband  and 
wife  have,  by  an  antenuptial  con- 
tract, excluded  it.  They  may  ex- 
clude it  wholly  or  in  part.  Thus, 
the  coijiniunio  questiiuin  may  be  re- 
tained, and  the  other  excluded.  The 
exclusion  may  be  made  in  express 
terms,  or  implied  from  the  disposi- 
tions which  are  contained  in  the 
antenuptial  contract:"  Colonial  and 
Foreign  Laws,  vol.  1,  pp.  276,  278. 
Concerning  the  law  of  Spain,  Mr. 
Burge  says :  "The  law  of  Spain 
does  not  recognize  the  general  com- 
munio bonorum,  which  prevailed  in 
Holland,  but  admits  only  the  com- 
munio questuum.  The  latter  is 
constituted  between  the  husband 
and  wife  as  the  legal  and  necessary 
effect  of  their  marriage.  The  prop- 
erty of  which  it  consists  is  termed 
ganancial,  bienes  gananciales.  .  ,  . 
The  community  silently  and  imper- 
ceptibly acquired  a  place  among  the 
usages  of  Spain.  It  was  first  recog- 
nized in  El  Fuero  Juzgo.  The 
property  of  which  it  is  formed  be- 
longs in  common  to  the  two  con- 
sorts, and  on  the  dissolution  of  the 
marriage,  is  divisible  between  them 
in  equal  shares.  It  is  confined  to 
their  future  acquisitions,  durante  el 
matrimonio.  The  property  belong- 
ing to  either  at  the  time  of  the 
marriage,  by  whatever  title  it  was 
acquired,   patrimonium   et   capitale, 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION. 


1635 


§  868.     Presumption  of  community  property. — It  may 

be  observed,  in  considering  the  effect  given  to  these  statutes, 
that  all  property  acquired  by  either  party  after  marriage  is 
presumed  to  be  community  property.  "Property  acquired  by 
purchase  during  coverture,  by  either  party,  is  presumed  to  be 
community  property,  whether  the  consideration  was  services 
rendered  or  money  paid  by  either  party."  '  So,  therefore,  a 
party  who  asserts  that  property  acquired  during  the  life  of  the 
wife,  or  with  funds  in  his  hands  at  the  time  of  her  death,  is 
his  separate  property,  has  the  burden  of  proof.^  Mr.  Justice 
Field,  in  a  case  in  California,  speaking  of  the  law  of  California 
as  regards  community  property,  said :  "These  provisions  are 
borrowed    from  the   Spanish  law,   and  there   is   hardly  any 


forms  no  part  of  it.  But  its 
fructus,  or  rents  and  profits,  are  in- 
cluded in  it,  and  are  therefore 
ganancial.  The  acquisitions  during 
the  marriage  by  a  common  title, 
whether  it  be  lucrative  or  onerous, 
will  form  part  of  the  community. 
Thus,  a  donation  made  to  both  con- 
sorts will  be  ganancial,  but  a  dona- 
tion made  to  either,  although  it  be 
made  to  the  wife  by  the  husband's 
relations,  or  to  the  husband  by  the 
wife's  relations,  will  be  the  sepa- 
rate and  exclusive  property  of  such 
donee,  and  form  no  part  of  the 
community.  The  title  under  which 
property  acquired  by  the  one  con- 
sort can  become  ganancial  must  be 
that  which  is  onerous.  An  estate, 
therefore,  which  was  purchased  by 
either  consort  will  be  ganancial. 
All  property  is  prima  facie  pre- 
sumed to  be  ganancial  which  is  not 
proved  to  be  proprium  or  patri- 
monium:"  Colonial  and  Foreign 
Laws  vol.  1,  pp.  418,  419. 

'  Chapman  v.  Allen,  15  Tex.  278, 
283.     See,  also,  Biggi  v.   Biggi,  93 


Cal.  33 ;  Althof  v.  Conheim,  38  Cal. 
230,  99  Am.  Dec.  363;  Morgan  v. 
Lones,  78  Cal.  58;  Burton  v.  Lies, 
21  Cal  87;  Smith  v.  Smith,  12  Cal. 
216,  73  Am.  Dec.  533;  Tolman  v. 
Smith,  85  Cal.  280;  Ingersoll  v. 
Truebody,  40  Cal.  603;  Ramsdell 
V.  Fuller,  28  Cal.  37,  87  Am.  Dec. 
103;  McDonald  v.  Badger,  23  Cal. 
393,  83  Am.  Dec.  123;  Pixley  v. 
Huggins,  15  Cal.  127;  Schuyler  v. 
Broughton,  70  Cal.  282;  Landers  v. 
Bolton,  26  Cal.  393 ;  Moore  v.  Jones, 
63  Cal.  12;  Adams  v.  Knowlton,  22 
Cal.  283;  Jordan  v.  Fay,  98  Cal. 
264;  Dimmick  v.  Dimmick,  95  Cal. 
323;  Peck  v.  Brummagim,  31  CaL 
440,  89  Am.  Dec.  195;  Meyer  v. 
Kinzer,  12  Cal.  247,  73  Am.  Dec 
538. 

8  Osborn  v.  Osborn,  62  Tex.  495. 
See,  also,  Dimmick  v.  Dimmick,  95 
Cal.  323;  Peck  v.  Brummagim,  31 
Cal.  440,  89  Am.  Dec.  195 ;  Meyer  v. 
Kinzer,  12  Cal.  247,  73  Am.  Dec. 
538;  Estate  of  Bauer,  79  Cal.  304; 
Tolman  v.  Smith,  85  Cal.  280 ;  Mc- 
Comb  v.  Spangler,  71  Cal.  418. 


1636  THE    LAW    OF    DEEDS.  [CHAP.    XXV, 

analogy  between  them  and  the  doctrine  of  the  common  law 
in  respect  to  the  rights  of  property  consequent  upon  marriage. 
The  statute  proceeds  upon  the  theory  that  the  marriage,  in 
respect  to  property  acquired  during  its  existence,  is  a  com- 
munity of  which  each  spouse  is  a  member,  equally  contribut- 
ing by  his  or  her  industry  to  its  prosperity,  and  possessing 
an  equal  right  to  succeed  to  the  property  after  dissolution,  in 
case  of  surviving  the  other.  To  the  community  all  acquisi- 
tions by  either,  whether  made  jointly  or  separately,  belong. 
No  form  of  transfer  or  mere  intent  of  parties  can  overcome 
this  positive  rule  of  law.  All  property  is  common  property, 
except  that  owned  previous  to  marriage,  or  subsequently  ac- 
quired in  a  particular  way.  The  presumption,  therefore,  at- 
tending the  possession  of  property  by  either,  is  that  it  belongs 
to  the  community;  exceptions  to  the  rule  must  be  proved. 
.  .  .  This  invariable  presumption  which  attends  the  pos- 
session of  property  by  either  spouse  during  the  existence  of 
the  community,  can  only  be  overcome  by  clear  and  certain 
proof  that  it  was  owned  by  the  claimant  before  marriage,  or 
acquired  afterward  in  one  of  the  particular  ways  specified  in 
the  statute,  or  that  it  is  property  taken  in  exchange  for,  or  in 
the  investment,  or  as  the  price  of  property  so  originally  owned 
or  acquired.  The  burden  of  proof  must  rest  with  the  claim- 
ant of  the  separate  estate.  Any  other  rule  would  lead  to  in- 
finite embarrassment,  confusion,  and  fraud.  In  vain  would 
creditors  or  purchasers  attempt  to  show  that  the  particular 
property  seized,  or  bought,  was  not  owned  by  the  claimant 
before  marriage,  and  was  not  acquired  by  gift,  bequest,  de- 
vise, or  descent,  or  was  not  such  property  under  a  new  form 
consequent  upon  some  exchange,  sale,  or  investment.  In  vain 
would  they  essay  to  trace  through  its  various  changes,  the  dis- 
position of  any  separate  estate  of  the  wife,  so  as  to  exclude 
any  blending  cf  it  with  the  particular  property  which  might 
be  the  subject  of  consideration."  ^     Where  there  is  no  evi- 

9  In  Meyer  v.  Kinzer,  12  Cal.  247,      251,  73  Am.  Dec.  538. 


CHAP,    XXV.]       PRINCIPLES    OF    CONSTRUCTION. 


1637 


dence  that  tlie  purchase  price  came  from  the  community  funds, 
it  is  presumed,  where  the  statute  does  not  otherwise  provide, 
that,  whether  the  deed  is  made  to  the  husband  or  the  wife,  it 
is  community  property.^  Where  a  husband  after  marriage 
purchases  land  with  his  separate  funds,  he  may  take  the  con- 
veyance in  the  name  of  his  minor  children  by  a  former  wife, 
and  such  action  cannot  be  considered  to  be  a  fraud  upon 
the  rights  of  the  wife.'     But  if,  during  the  existence  of  the 


^  Dimmick  v.  Dimmick,  95  Cal. 
329,  30  Pac.  547;  Meyer  v.  Kinzer, 
12  Cal.  247,  72>  Am.  Dec.  538;  Lewis 
V.  Burns,  122  Cal.  358,  55  Pac.  132; 
Jordan  v.  Fay,  98  Cal.  264,  33  Pac. 
95;  McDonald  v.  Badger,  23  Cal. 
393,  83  Am.  Dec.  123;  Moll  v. 
Smith,  16  Cal.  533.  In  re  Boody, 
113  Cal.  682;  Hoeck  v.  Greif,  142 
Cal.  119,  75  Pac.  670;  Nelson  v. 
Sarment,  153  Cal.  524,  96  Pac.  315 ; 
Booker  v.  Castillo,  154  Cal.  672,  98 
Pac.  1067;  Halloway  v.  Halloway, 
30  Tex.  164;  Flannery  v.  Chidgey, 
33  Tex.  Civ.  App.  638,  77  S.  W. 
1034;  Kin  Kaid  v.  Lee  (Tex.  Civ. 
App.),  119  S.  W.  342;  Phillips  v. 
Palmer,  (Tex.  Civ.  App.),  120 
S.  W.  911;  Clark  v.  Thayer,  98 
Tex.  142,  81  S.  W.  1274;  Duncan 
v.  Bickford,  83  Tex.  322,  18  S.  W. 
598;  Allardyce  v.  Hambleton,  96 
Tex.  30,  70  S.  W.  76;  Mitchell  v. 
Mitchell,  80  Tex.  101,  15  S.  W.  705; 
Stanley  v.  Epperson,  45  Tex.  644; 
Stephenson  v.  Chappell,  12  Tex. 
Civ.  App.  296,  33  S.  W.  880,  36  S. 
W.  482 ;  Moffatt  v.  Sydnor,  13  Tex. 
628;  York  v.  Hilger,  (Tex. 
Civ.  App.),  84  S.  W.  1117; 
Burleson  v.  Alvis,  28  Tex.  Civ. 
App.  51,  66  S.  W.  235;  Clardy 
V.  Wilson,  27  Tex.  Civ.  App.  49, 
64  S.  W.  489;  Lake  v.  Bender,  18 


Nev.  361,  4  Pac.  711,  7  Pac.  74; 
Ford  v.  Ford,  1  La.  301 ;  Stauffer  v. 
Morgan,  39  La.  Ann.  785,  2  So.  575 ; 
Pearson  v.  Ricker,  15  La.  Ann. 
119;  Duruty  Musacchia,  42  La. 
Ann.  357,  7  So,  555 ;  Burke's  Suc- 
cession, 107  La.  82,  31  So.  391; 
Hall  v,  Toussaint,  52  La.  Ann.  1763, 
28  So.  304;  Murpliy  v.  Jnrey,  39  La. 
Ann.  785,  2  So.  575;  Huntington  v. 
Legros,  18  La.  Ann.  249;  Neher  v. 
Armijo,  9  N.  M.  325,  54  Pac.  236; 
Strong  v.  Eakin,  (N.  M.),  66 
Pac.  539;  Ballard  v.  Slyfield,  47 
Wash.  174,  91  Pac.  642;  W^oodland 
Lumber  Co.  v.  Link,  16  Wash.  72, 
47  Pac.  722;  Hanna  v.  Reeves,  22 
Wash.  6,  60  Pac,  62;  Dormitzer  v. 
German  Sav,  etc.  Society,  23  Wash. 
132,  62  Pac.  862;  Gesler  v.  Hoch- 
stettler,  4  Wash.  349,  3  Pac.  398. 
Evidence  however  may  overcome 
this  presumption :  Bollinger  v. 
Wright,  143  Cal.  292,  76  Pac.  1108; 
Hoeck  V.  Greif,  142  Cal.  119,  75 
Pac.  670;  Freese  v.  Hibernia  Sav. 
etc.  Society,  139  Cal.  392,  7Z  Pac. 
172;  Brookman  v.  State  Ins.  Co.,  18 
Wash.  308,  51  Pac.  395;  Clark  v. 
Thayer,  98  Tex.  142,  81  S.  W.  1274 ; 
Hanrick  v.  Patrick,  119  U.  S.  156, 
30  L.  ed.  396,  7  S.   Ct.   147. 

2  Smith  v.  Smith,  12  Cal.  216,  7Z 
Am.  Dec.  533. 


1638 


THE    LAW    OF    DEEDS. 


[chap.    XXV. 


marriage  relation,  the  husband  erects  a  building  on  such  land, 
the  presumption  that  the  conimunity  property  was  invested  in 
this  form  cannot  be  repelled  by  loose  and  unsatisfactory  evi- 
dence.' 


§  868a.  Improvements  on  community  property. — 
Where  there  is  no  evidence  of  an  agreement,  the  fact  that 
fact  that  the  husbanc^  performed  labor  in  constructing  a  house 
on  land  belonging  to  the  wife  and  also  gave  her  money  to 
discharge  a  mortgage  on  the  property  will  not  create  a  lien 
on  the  land  in  his  favor  so  as  to  make  the  land  community 
property.*     If  a  husband  erects  improvements  on  a  lot  in- 


» Smith  V.  Ward,  12  Cal.  216. 
See,  also,  Schuler  v.  Savings  and 
Loan  Society,  64  Cal.  398;  Althof  v. 
Conheim,  38  Cal.  230;  Barbour  v. 
Fairchild,  6  L.  C.  Rep.  113;  City 
Insurance  Co.  v.  Steamboat  Lizzie 
Simmons,  19  La.  Ann.  249; 
Schmeltz  v.  Carey,  49  Tex.  49; 
Planchett's  Succession,  29  La.  Ann. 
520;  Bouligny  v.  Fortier,  16  La. 
Ann.  213;  Provost  v.  Delahoussaye, 
5  La.  Ann.  610;  Chapman  v.  Alden, 
15  Tex.  278;  Sulstrang  v.  Belts,  24 
La.  Ann.  235 ;  Block  v.  Melville,  22 
La.  Ann.  149;  Tally  v.  Heffner,  29 
La.  Ann.  583;  Huston  v.  Curl,  8 
Tex.  242,  58  Am.  Dec.  110;  Cooke 
V.  Bremond,  27  Tex.  457,  86  Am. 
Dec.  626;  Zorn  v.  Tarver,  45  Tex. 
419;  Love  v.  Robertson,  7  Tex.  11, 
54  Am.  Dec.  41;  Mitchell  v.  Marr, 
26  Tex.  331 ;  Higgins  v.  Johnson,  20 
Tex.  394,  70  Am.  Dec.  394 ;  Succes- 
sion of  Wade,  21  La.  Ann.  347; 
Smalley  v.  Lawrence,  9  Rob.  (La.) 
214;  Ford  v.  Ford,  1  La.  201 ;  Fish- 
er V.  Gordy,  2  La.  Ann.  763.  In 
Ford  v.  Ford,  1  La.  201,  the  court 


said :  "The  principles  laid  down  in 
the  last  article  of  the  code  cited, 
creates  a  legal  presumption  that 
property  acquired  during  marriage 
by  purchase,  whether  the  acquisi- 
tion be  made  in  the  joint  names  of 
husband  and  wife,  or  in  the  names 
of  either  separately,  must  be  con- 
sidered as  common  property,  which 
can  be  dedicated  only  by  certain 
and  positive  evidence  that  it  was 
acquired  by  the  separate  funds  of 
one  of  the  parties."  The  statute  in 
California,  §  164  of  the  Civil  Code, 
has,  however,  been  amended  by 
providing  that  when  property  is 
conveyed  to  a  married  woman  by 
an  instrument  in  writing,  the  pre- 
sumption is  that  the  title  is  vested 
in  her  as  her  separate  property, 
and  if  to  her  and  her  husband,  the 
presumption  is  that  she  takes  as 
tenant  in  common.  See  Heney  v. 
Pesoli,  109  Cal.  53. 

*  Carlson  v.  Carlson,  10  Cal.  App. 
430,  101  Pac.  923.  See,  also,  Wat- 
kins  V.  Watkins,  119  S.  W.  145, 
where  a  husband  was  denied  reim- 
bursement for  improvements. 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION. 


1639 


herited  by  a  wife  from  her  father,  such  improvements  will 
constitute  community  property  in  which  the  husband  will  have 
an  interest.^  Generally,  if  the  improvements  are  made  with 
funds  belonging  to  the  community  on  the  separate  property  of 
either  husband  or  wife,  the  improvements  will  belong  to  the 
owner  of  the  separate  property.^  If  during  the  existence  of  a 
second  marriage  land  is  acquired  by  the  exchange  of  land 
which  formed  a  part  of  the  community  property  of  a  prior 
marriage,  it  does  not  become  a  part  of  the  community  prop- 
erty of  the  second  marriage.'  If  a  timber  claim  is  the  separ- 
ate property  of  the  husband,  tlie  fact  that  funds  of  the  com- 
munity were  employed  to  purchase  it  would  not  confer  upon 
the  wife  an  interest  in  or  lien  upon  the  property  itself.*  The 
husband  has  no  power  of  converting  by  gift  the  community 
property  into  his  separate  property.'  He  cannot  dispose  of 
the  property  by  will  as  his  right  to  dispose  of  it  terminates 
when  the  marriage  relation  ends.^  A  life  estate  may  be  con- 
veyed by  a  husband  to  his  wife  with  remainder  over  to  their 
children.''  A  wife  may  be  estopped  by  her  conduct  from  as- 
serting that  the  property  was  that  of  the  community."  So 
may  a  husband,  as  when  he  knowingly  permits  her  to  con- 
tract for  the  purchase  of  land.     He  will  not  be  allowed  to 

6  Brady   v.    Maddox,    124    S.   W.  113  La.  1012,  37  So.  909;  Hillen  v. 

739_  Williams,   25   Tex.   Civ.   App.   268, 

e'peck  V.  Brummagin,  31  Cal.  440,  60  S.  W.  997. 

89    Am.    Dec.    195;    Metey's    Sue-  ''Haring  v.   Shelton,    114   S.   W. 

cession,    113   La.    1012,37    So.   909;  389. 

Dillon  V.  Dillon,  35  La.   Ann.  92;  8  James  v.   James,   51   Wash.   66, 

In  re  Patton  Myrick  Probate  (Cal.)  91  Pac.  1113. 

241.     But   upon   dissolution   of  the  9  Rowlett  v.  Mitchell,   114  S.  W. 

community    it   may   be    reimbursed  845. 

if  the  improvements  have  increased  l  Rowlett  v.  Mitchell,  114  S.  W. 

the  value  of  the  property.     Dillon  845. 

V.  Dillon,  35  La.  Ann.  92;  Weber's  2  Lindly  v.  Lindly,  113  S.  W.  750. 

Succession,  49  La.  Ann.  1491,  22  So.  ^  Schillreff  v.  Schillref,  50  Wash. 

390;    Burke's    Succession,    107    La.  435,  97  Pac  457. 
82.  31  So.  391 ;  Meteye's  Succession, 


1640 


THE    LAW    OF    DEEDS. 


[chap.    XXV. 


deny  her  authority  to  abandon  the  right  thus  acquired.*  Tliere 
can  be  no  community  property  where  there  is  not  a  vaHd  mar- 
riage.® A  husband  has  power  to  fix,  by  agreement,  the  bound- 
ary Hne  between  land  forming  part  of  the  community  and 
land  owned  by  an  adjacent  proprietor.®  The  interest  of  the 
wife  in  the  community  property  is  a  mere  expectancy."' 

§  869.  Grants  from  the  government — Rule  in  Texas. 
— Property  acquired  by  one  party  from  the  government, 
under  a  grant  or  a  donation,  is  considered,  in  Texas,  to  be 
community   property.*     In    a    case   in   that    state,    Mr.    Jus- 


*  Bowers  v.  Good,  52  Wash.  384, 
100  Pac.  848. 

6  Stans  V.  Baitey,  9  Wash.  115,  Z7 
Pac  316;  Rochelle  v.  Hezeaw,  15 
La.  Ann.  306;  Dejan's  Succession, 
40  La.  Ann.  347,  4  So.  89;  Summer- 
lin  V.  Chapman,  11  Tex.  Civ.  App. 
392,  32  S.  W.  564;  In  re  Sloan,  50 
Wash.  86,  17  L.R.A.(N.S.)  960,  96 
Pac.  684. 

6  Moreno  v.  Salazar,  116  S.  W. 
391. 

7  Hall  V.  Johns,  17  Idaho,  224, 
105  Pac.  71. 

8  Yates  V.  Houston,  3  Tex.  433. 
In  this  case  the  court,  in  consider- 
ing this  question,  said :  "It  would 
seem  that  where  the  government 
requires,  by  public  order,  a  sum 
of  money  so  considerable  in  amount 
to  be  paid  before  the  issue  of  the 
title,  and  as  an  indispensable  con- 
dition to  its  delivery,  that  the  grant 
could  not  be  regarded  as  a  pure 
donation.  Nor  can  it  be  regarded 
as  bought  with  the  separate  funds 
of  the  husband.  There  is  no  pro- 
vision of  law  which  requires  or  au- 
thorizes the  separate  property  of 
the  head  of  the  family  to  be  ex- 
pended for  this  purpose;  and  where 


there  is  no  showing  to  the  contrary, 
the  presumption  always  is,  that  the 
advances  proceed  from  the  funds 
of  the  community,  and  purchases 
are  made  for  its  benefit  and  aug- 
mentation. The  fact  that  the  grant 
was  made  to  the  head  of  the  fam- 
ily is  an  immaterial  circumstance, 
provided  it  was  founded  on  consid- 
erations which  impress  upon  it  the 
character  of  a  purchase,  or  of  prop- 
erty acquired  by  onerous  title.  The 
head-right  grants  under  the  State 
colonization  laws,  in  which  some 
consideration  was  paid  for  the  land 
itself,  were  made  to  the  heads  of 
families.  And  if,  by  law,  lands 
were  expressly  directed  to  be  sold 
to  families,  to  a  greater  or  less 
amount,  according  to  the  merits 
and  circumstances  of  the  applicants, 
and  the  grants  were  made  in  the 
name  of  the  head  of  the  families, 
it  could  not  be  contended  that  such 
lands  were  the  separate  proper- 
ty of  the  husband.  Is  there  any 
substantial  difference  between  such 
sales  and  this  grant,  where  the  title 
was,  by  public  authority,  directed 
not  to  issue  until  after  the  fees 
were   paid?     But,    on   the   second 


CHAP.    XXV,]       PRINCIPLES    OF    CONSTRUCTION. 


1641 


tice  Bonner  said :  "The  policy  of  Texas  has  ever  been  to  in- 
duce by  grants  of  land  both  married  and  single  men  to  im- 
migrate and  become  citizens.     In  consonance  with  the  objects 


ground,  we  are  of  opinion  that  the 
grant  was  in  consideration  of  serv- 
ices to  be  rendered,  and  should, 
therefore,  be  regarded  as  a  portion 
of  the  ganancial  property  of  the 
marriage.  The  object  of  the  gov- 
ernment in  the  law  of  colonization, 
was  to  settle  the  vast  wilderness  of 
a  remote  frontier  with  a  reputable, 
hardy,  and  industrious  population. 
'Agriculture,  industry,  and  the  arts,' 
were  to  be  promoted,  and  to  accom- 
plish this,  grants  of  a  large  amount 
of  land  were  ofifered  to  emigrant 
families,  but  not  gratuitously;  not 
simply  on  the  ground  that  they 
would  introduce  themselves  into  the 
country;  but  that  they  should  cul- 
tivate the  lands,  and  that  within 
two  years  from  the  date  of  the  con- 
cession. The  inquiry  then  aris^,  by 
whom  is  this  to  be  accomplished? 
Are  we  to  suppose  that  the  husband 
is  the  sole  cultivator?  That  fields 
are  to  be  opened,  and  lands  stocked 
with  cattle,  without  the  assistance 
of  his  partner,  and  the  expenditure 
of  their  joint  funds?  And,  in  fact, 
it  seems  immaterial  whether  the 
whole  of  the  labor  and  money  be 
bestowed  and  expended  by  the  hus- 
band or  not,  provided  such  was  the 
necessary  condition  and  charge  by 
which  title  could  alone  be  originally 
acquired,  or  subsequently  preserved. 
By  the  principles  of  the  law  then 
existing,  the  results  of  the  labor  of 
the  partners,  and  of  each  one  of 
them,  became  common  property.  It 
is  of  no  consequence  whether  one 
contribute  more  than  the  other  to 


the  acquisition,  or  whether  it  be 
procured  by  the  labor  and  traffic  of 
one  alone,  it  is  common  to  both  by 
virtue  of  the  subsisting  partnership, 
through  which  their  acquisitions  are 
are  reciprocally  communicated.  The 
position  is  fallacious  which  assumes 
that  the  land  is  already  granted, 
and  that  the  labors  of  the  wife  are 
repaid  by  her  community  interest  in 
the  value  of  the  improvements 
made,  or  cattle  pastured  on  the  land. 
If  the  land  can  be  retained  only  by 
services  to  be  rendered,  or  labors 
performed,  by  both  of  the  partners, 
or  by  one,  and  the  profits  by  law 
accrue  to  both,  it  would  be  inequi- 
table that  the  labors  of  the  one 
should  be  rewarde^d  by  the  land 
and  half  of  the  improvements,  and 
that  of  the  other  by  only  half  of 
the  latter.  To  this  she  would  be 
entitled  on  property  brought  by  the 
husband  into  the  marriage  as  his 
separate  estate,  and  of  which  the 
title  was  fully  vested  in  him,  and 
to  procure  or  preserve  which  no  ex- 
penditure of  labor  or  money  is 
necessary;  but  where  these  expen- 
ditures and  services  can  alone  pro- 
cure and  secure  the  title,  she  should 
certainly  be  entitled  to  an  equal 
share  of  the  reward  bestowed. 
These  grants  were,  in  fact,  dearly 
purchased  by  the  unparalleled  toils 
and  sufferings  of  both  the  partners; 
and  the  fruits  of  their  labors  under 
a  system  of  laws  where  the  com- 
munity interests  are  protected  with 
such  zealous  vigilance  should  be 
equally   distributed.     It  cannot   be 


1642  THE    LAW    OF    DEEDS.  [CIIAP.    XXV. 

sought,  greater  inducements  have  been  held  out  to  the  former 
class,  as  shown  by  the  increased  amount  of  land  given.  Al- 
though the  certificate  of  title,  under  the  law,  issued  to  the 
husband  as  the  head  of  the  family,  yet,  in  consideration  of 
the  joint  toils,  privations,  and  dangers  undergone  by  the  wife 
also,  it  has  been  repeatedly  decided  by  this  court  that,  under 
our  system,  it  would  constitute  community  property  of  the 
husband  and  wife,  one-half  of  which,  charged  with  the  debts 
of  the  community,  would,  on  the  death  of  the  wife,  descend 
to  her  children."  ^  But  it  has  been  held  in  that  State  that, 
where  the  land  was  selected  by  the  husband  prior  to  the  death 
of  the  wife,  but  the  title  was  not  extended  to  him  until  after 
her  death,  the  land  did  not  become  community  property.^  In 
Texas,  the  true  test  to  be  derived  from  the  authorities  is  said 
to  be:  "1st.  Did  the  surviving  husband  receive  the  grant 
by  reason  of  such  immigration,  settlement,  residence,  etc.,  on 
his  own  part,  as  would,  under  the  law,  entitle  him  to  it,  inde- 
pendently of  the  right  based  upon  his  status  as  a  married  man 
at  the  date  of  the  death  of  his  wife?  If  so,  it  was  his  separate 
property.    2d.    Was  the  increased  quantity  over  that  to  which 

said,  that  if  the  land  be  not  ap-  ence  and  prosperity  of  the  colony, 
propriated  exclusively  to  the  hus-  It  cannot  be  supposed  that  a  legis- 
band,  each  member  of  the  family  lator,  under  the  Spanish  system, 
is  as  much  entitled  to  a  distributive  would  intend  that,  in  a  grant  to  be 
share  as  the  wife,  inasmuch  as  the  made  to  a  family,  consisting  of  a 
services  of  the  whole  are  rendered  husband,  wife,  and  children,  and 
to  secure  the  title.  This  is  an-  this  on  onerous  conditions,  that  the 
swered  by  the  consideration  that,  rights  of  the  wife,  as  partner  in  the 
under  the  laws,  the  services  of  the  conjugal  society,  should  be  disre- 
family  are  always  to  be  rendered  garded.  The  presumption  of  law 
for  the  benefit  of  the  community,  strongly  favor  the  rights  of  the 
and  not  for  its  individual  members,  community,  and  they  should  have 
especially  those  in  a  subordinate  their  due  force  where  the  law  is  not 
relation.  The  law  was  framed  to  loo  clear  to  exclude  their  opera- 
secure  the  migration  of  women  as  tion." 

well  as  men.     Their  presence  was  ^  Hodge  v.  Donald,  55  Tex.  344. 

indispensable  to  the  domestic  happi-  And  see  Wilkinson  v.  Wilkinson,  20 

ness  of  individuals,  and  to  the  or-  Tex.  242. 

der,  welfare,  and  continued  exist-  ^Webb  v.  Webb,  15  Tex,  274 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1643 

a  single  man,  not  the  head  of  a  family,  was  entitled,  given  to 
the  surviving  husband  by  reason  of  the  fact  that,  at  the  date 
of  the  death  of  the  wife,  he  was  then  a  married  man?  If 
so,  it  was  the  community  property  of  the  husband  and  the 
deceased  wife,  her  half-interest  in  which,  subject  to  the  debts 
of  the  community,  would  descend  to  her  children."  * 

§  870.  In  California  and  Louisiana. — In  California,  the 
rule  prevailing  in  Texas  on  the  point  considered  in  the  pre- 
vious section  is  disapproved.  Referring  to  an  early  case  in 
Texas,  cited  in  the  preceding  section,'  the  supreme  court  of 
California  said :  "The  error,  as  we  conceive,  of  this  decision, 
consists  in  regarding  the  fees  paid  to  the  officers,  and  the  serv- 
ices rendered  in  settling  upon  the  land,  as  constituting  a  val- 
uable consideration  in  the  nature  of  a  price  to  the  government. 
The  fees  incurred  in  making  the  survey,  and  in  issuing  the 
title  papers,  were  altogether  incidental  to  the  grant  and  formed 
no  part  of  its  consideration,  and  the  services  rendered  in  the 
settlement  were  directly  for  the  benefit  of  the  grantee,  and 
only  collaterally  and  remotely  for  the  benefit  of  the  govern- 
ment. Agricultural  lands  solicited  under  the  colonization  laws 
were  supposed  to  be  for  use  and  cultivation  by  the  petitioner, 
and  the  grant  to  him  was  only  subject  to  their  appropriation 
to  that  end.  Such  limitation  could  not  affect  the  character  of 
the  grant  as  a  donation,  and  convert  it  into  a  purchase.  The 
government,  in  fact,  said  to  the  petitioner,  if  you  want  the 
lands  for  use  and  cultivation,  you  may  have  them  for  that 
purpose;  in  other  words,  we  will  give  them  to  you  if  you  will 
use  them.  Conditions  which  require  the  performance  of  serv- 
ices are  not  onerous  in  the  sense  of  the  Spanish  law,  so  as 
to  convert  the  transaction  into  one  of  contract,  when  they 
are  rendered  by  the  grantee  for  his  own  benefit ;  they  are  only 
so  when  rendered  for  the  benefit  of  the  grantor,  or  parties 

«  Hodge  V.  Donald,  55  Tex.  344,         »  Yates  v.  Houston,  3  Tex.  433. 
350. 


1644 


THE    LAW    OF   DEEDS. 


[chap.    XXV. 


otlier  than  the  grantee.  They  do  not  differ  in  that  respect 
from  the  payment  of  money,  which  it  would  be  absurd  to  say 
could  be  made  by  the  grantee  to  himself."  *  In  Louisiana, 
the  court  in  speaking  of  these  grants  observed :  "It  was,  how- 
ever, said  that  the  object  in  making  these  grants  was  to  en- 
courage the  settlement  of  the  country;  and  that  to  carry  that 
object  into  effect  it  was  necessary  the  lands  should  be  consid- 
ered as  given  to  both  husband  and  wife.  To  this  it  might  be 
answered,  and  with  great  force,  that  if  the  government  were 
of  that  opinion,  it  is  strange  they  did  not  at  once  say  so,  and 
by  making  the  concession  in  the  name  of  both,  place  the  mat- 
ter beyond  doubt;  and  not,  by  granting  it  to  one  of  the  spouses, 
leave  it  to  the  operation  of  a  positive  law  which  repelled  the 
idea.  But  if  we  could  enter  into  political  considerations,  in 
order   to   ascertain   whether   they   could   repeal   statutes,   we 


4  In  Noe  V.  Card,  14  Cal.  576,  600. 
On  a  petition  for  rehearing  Mr. 
Chief  Justice  Field  said  (p.  610)  : 
"Under  all  systems,  donations  are 
of  three  classes — pure,  remunera- 
tory,  and  conditional.  They  are  pure 
when  made  without  condition  in  the 
exercise  of  a  spirit  of  liberality  as 
charities.  They  are  remuneratory 
when  required  by  no  legal  obliga- 
tion, but  are  made  from  a  regard 
for  services  rendered.  Such  were 
pensions;  such  was  the  character 
of  the  grants  of  land  made  in  many 
instances  to  officers  of  the  Revolu- 
tion. They  are  conditional  when 
accompanied  with  provisions  in- 
tended to  secure  the  purposes  for 
which  they  are  made.  These  pro- 
visions may  often  impose  the  dis- 
charge of  burdensome  and  expen- 
sive duties  without  changing  the 
character  of  the  transactions. 
Grants  of  land  for  institutions  of 
benevolence  or  instruction,  for  hos- 


pitals, schools,  asylums,  and  the 
like,  are  generally  of  this  class. 
Conditions  annexed  to  such  grants, 
that  the  institutions  shall  be  estab- 
lished, only  operate  as  a  require- 
ment that  the  lands  shall  be  ap- 
propriated for  the  purposes  for 
which  they  are  granted.  The  per- 
formance of  the  condition  does 
not  constitute  a  consideration  in  the 
nature  of  a  price,  thereby  convert- 
ing the  transaction  into  sales.  This 
is  so  obviously  true  as  to  require 
no  argument  for  its  support.  The 
counsel  appears  to  be  impressed 
with  a  conviction  that  the  annex- 
ation of  conditions  which  require 
labor  or  expenditures,  necessarily 
converts  grants  into  sales.  That 
such  is  the  eflfect  only  of  conditions, 
the  performance  of  which  is  for 
the  benefit  of  the  grantors  or  per- 
sons other  than  the  grantees,  we 
think  we  have  shown  in  the  opinion 
already  rendered." 


CHAP.    XXV.]      PRINCIPLES   OF    CONSTRUCTION.  1645 

would,  in  this  case,  be  led  to  the  examination  of  a  nice  and 
refined  question  of  policy,  in  relation  to  the  effect  on  national 
prosperity,  of  giving  to  the  wife  a  distinct  interest  in  the  prop- 
erty acquired  during  marriage;  one  on  which  men  would  be 
found  to  differ,  according  to  their  education  and  particular 
modes  of  thinking.  Some  nations  whose  fate  has  been  as  pros- 
perous as  those  of  any  community  with  whose  history  we 
are  acquainted,  proceed  on  an  entirely  opposite  principle,  and 
act  on  the  idea  that  domestic  felicity,  and  consequently  public 
happiness,  are  best  promoted  by  considering  the  acquisitions 
made  during  coverture  as  belonging  to  the  husband  alone.  It 
is  true  the  Spanish  law  viewed  this  matter  in  a  very  different 
light,  but  the  same  law  makes  a  positive  exception  in  respect 
to  donations,  and  the  political  consideration  is  surely  not  so 
clear  as  to  authorize  us  to  make  a  distinction  where  the  legis- 
lator has  made  none.  On  the  contrary,  it  may  be  as  readily 
conceived  that  those  to  whose  care  the  colonization  of  this 
country  was  intrusted,  though  strangers  might  be  invited  into 
it,  and  settlements  formed  with  as  much  facilitiy  by  giving 
all  the  land  to  the  husband,  as  by  giving  it  to  the  husband, 
wife,  and  children.  The  father,  as  head  of  the  family,  had  a 
right  to  select  his  place  of  residence;  the  wife  was  bound  to 
follow  him.  It  was  natural  he  should  go  to  the  place  where 
the  most  advantages  were  conferred  on  him;  where  he  knew 
in  the  event  of  losing  his  life  from  the  perils  and  sufferings 
of  a  first  settlement,  that  the  objects  which  induced  him  to 
come  there  would  go  to  his  children ;  and  not  be  divided  with 
those  of  another  bed,  in  case  his  wife  survived  him  and  mar- 
ried another  man."  '     Under  the  state  laws  a  part  of  land  on 

^  Frique  v.  Hopkins,  4  Martin,  N.  the  land  thus  acquired  entered  into 

S.,  212,  219.     In  Gayoso  de  Lemos  and  made  a  part  of  the  community 

V.  Garcia,  1  Martin,  N.  S.,  324,  333,  subsisting    between     husband     and 

the    court    say:    "The    title   of    the  wife.      Whatever    support   this    ar- 

plaintiffs    is    founded    on    a    grant  gument  may  derive  from  the  prac- 

made  to  their   father  during  mar-  tice    which    we    believe    has    pre- 

riage,   and  it  has  been   urged  that  vailed  in  some  parts  of  the   State 


1646 


THE    LAW    OF    DEEDS. 


[chap.    XXV. 


which  the  husband  had  made  a  homestead  entry  during  the 
lifetime  of  his  wife,  but  concerning  which  he  had  not  made 
final  proof,  or  secured  a  patent  until  after  her  death,  became 
community  property.®  If  a  transfer  of  a  land  certificate  is 
made  to  a  husband  while  the  marriage  relation  exists,  it  is 
community  property.' 

§  871.  Land  purchased  by  earnings  of  wife. — Prop- 
erty purchased  with  money  earned  by  the  wife  during  mar- 
riage is  community  property  unless  it  appear  that  the  husband 
intended  to  give  the  wife  the  money  earned  by  her,  in  which 
case  the  title  taken  by  her  would  be  considered  a  gift.'  If  the 
purchase  price  for  a  conveyance  of  land  is  formed  of  money 
due  for  services  as  a  school  teacher  performed  by  the  wife, 
the  property  will  be  presumed  to  belong  to  the  community.' 
If  a  husband  execute  a  deed  to  his  wife,  she  cannot,  as  against 
a  purchaser  under  a  prior  recorded  deed,  be  considered  a  bona 
fide  purchaser,  unless  the  consideration   for  the  conveyance 


to  regard  lands  granted  by  the 
sovereign  as  property  common 
to  both  spouses,  it  is  certain  that 
it  is  not  only  unsupported  by 
authority,  but  that  the  law  most 
positively  says  it  shall  not  be  com- 
mon to  both;  but  that  it  shall  be- 
long exclusively  to  the  individual 
to  whom  the  king  grants  it."  See, 
also,  Rouquier  v.  Rouquier,  5 
Martin,  N.  S.,  98,  16  Am.  Dec.  186 ; 
Hughey  v.  Barrow,  4  La.  Ann.  250 ; 
Wilkinson  v.  American  Iron  Co., 
20   Mo.    122. 

6  Ahern  v.  Ahern,  31  Wash.  334, 
71  Pac.  1023,  96  Am.  St.  Rep.  912. 

7  Booth  v.  Clark,  34  Tex.  Civ. 
App.  315,  78  S.  W.  392.  See  as  to 
the  acquisition  of  public  lands: 
Bvown  v.  Fry,  52  La.  Ann.  58,  26 
So.  748;  Richard  v.  J\loure,  110  La. 


435,  34  So.  593;  Cunningham  v. 
Krutz,  41  Wash.  190,  7  L.R.A. 
(N.S.)  907,  83  Pac.  109;  Crochet 
v.  McCamant,  116  La.  1,  40  So. 
474,  114  Am.  St.  Rep.  538;  Barrett 
V.  Spence,  28  Tex,  Civ.  App.  344, 
67  S.  W.  921 ;  McAlister  v.  Hutch- 
inson, 75  Pac.  41 ;  Hall  v.  Hall,  41 
Wash.  186,  83  Pac.  108,  111  Am. 
St.  Rep.  1016;  Phoenix  Min.  &  Mill. 
Co.  V.  Scott,  20  Wash.  48,  54  Pac. 
777 ;  Cox  v.  Tompkinson,  39  Wash. 
70,  80  Pac.  1005 ;  Carratt  v.  Carratt, 

32  Wash.  517,  73  Pac.  481. 

8  Johnson  v.  Burford,  39  Tex, 
242;  Pendergast  v.  Cassidy,  8  La. 
Ann.  96;  Lake  v.  Lake,  4  West 
Coast  Rep.  174;  Isaacson  v.  jNIentz, 

33  La.  Ann.  595. 

3  Pearce  v.  Jackson,  61  Tex.  642. 


CHAP.    XXV,]       PRINCIPLES    OF    CONSTRUCTION.  1647 

was  paid  from  her  separate  means.  If  the  consideration  is  a 
part  of  the  community  property,  she  cannot,  as  she  has  paid 
herself  no  valuable  consideration,  be  deemed  an  innocent  pur- 
chaser, the  deed  from  her  husband  in  that  case  being  consid- 
ered as  a  gift.^  The  rule  as  to  determining  whether  land 
purchased  with  money  earned  by  the  wife  is  her  separate  prop- 
erty or  not,  is  not  altered  by  the  fact  that  the  husband  col- 
lected the  money,  executed  the  deed  without  the  wife's  knowl- 
edge, for  the  purpose  of  reimbursing  her,  nor  by  the  fact  that, 
as  between  themselves,  he  considered  the  money  as  the  separ- 
ate property  of  his  wife.^  The  husband  in  such  a  case  can- 
not act  as  the  agent  of  his  wife  to  contract  with  himself, 
without  the  exercise  by  the  wife  of  her  own  will.'  - 

§  872,  Gift  to  husband  or  wife. — A  deed  of  the  com- 
munity property  to  tlie  wife  by  the  husband,  made  when  he  is 
free  from  debts  and  liabilities,  transfers  the  title  to  her  as 
her  separate  estate.  The  transaction  is  a  gift,  and  the  prop- 
erty conveyed  will  not  be  liable  for  debts  contracted  by  him 
after  the  execution  of  the  deed.*  Where  a  husband  purchases 
land  with  funds  belonging  to  the  community,  and  causes  the 
deed  to  be  made  out  in  the  name  of  his  wife,  with  intent  that 
she  shall  hold  the  land  conveyed  as  her  separate  property,  the 
transaction  is  a  gift  from  the  husband  to  the  wife.®     The  same 

1  Pearce  v.  Jackson,  61  Tex.  642.  bott  v.  Wetherby,  6  Wash.  507,  33 

aPearce  v.  Jackson,  61  Tex.  642.  Pac.    1070,   36   Am.    St.    Rep.    176; 

3  Pearce  v.  Jackson,  61  Tex.  642.  Yake  v,  Pugh,  13  Wash.  78,  42  Pac. 

The  earnings  of  either  husband  or  528,  52  Am.  St.  Rep.   17;  Sherlock 

wife  constitute  community  property.  v.    Denny,   28   Wash.    170,   68   Pac. 

Adams  v.    Baker,  24   Nev.  375,   55  452;    Cline   v.   Hackbarth,  27   Tex. 

Pac.  362;  Martin  v.  Southern  Pac.  Civ.  App.  391,  65  S.  W.  1086;  Cooke 

Co.,  130  Cal.  285 ;  Fennell  v.  Drink-  v.   Bremond,  27  Tex.  457,  86  Am. 

house,    131    Cal.  447,   63   Pac.   734,  Dec.   626;   Edwards   v.   Brown,   68 

82  Am.  St.  Rep.  361 ;  Webre's  Sue-  Tex.  329,  4  S.  W   380,  5  S.  W.  87. 

cession,  49  La.   Ann.    1491,  22   So.  *  Peck    v.    Brummagim,    31    Cal. 

390;   Knight  v.  Kaufman,    105  La.  440,  89  Am.  Dec.  195. 

35,  29  So.  711;   Manning's   Sncces-  5  Read    v.    Rahm,    65    Cal.    343; 

sion,  l/)7  La.  456,  31  So.  862;  Ab-  Higgins    v.    Higgins,   46   Cal.    259. 


1648  THE    LAW    OF    DEEDS.  [CHAP.    XXV. 

effect  results  if  the  consideration,  instead  of  money,  is  a  debt 
due  from  the  grantor  to  the  husband.^  If  a  trustee  holds  the 
title  to  land  for  husband  and  wife  and  delivers  a  deed  to  the 
land  to  the  wife  as  grantee,  the  title  still  remains  in  the  com- 
munity, as  it  requires  a  deed  from  the  husband  to  vest  in  the 
wife  his  interest  in  the  community,  and  mere  intention  or 
desire  is  not  sufficient.'^  A  man  after  the  performance  of  a 
ceremony  of  marriage  deeded  a  tract  of  land  to  the  woman, 
describing  her  in  the  deed  as  a  spinster  and  subsequently  con- 
veyed the  same  land  to  her  by  a  quitclaim  deed.  The  first 
deed,  the  court  held,  placed  the  title  in  her,  if  the  marriage 
was  not  valid,  and  if  it  was  valid  she  acquired  the  community 
interest  by  the  quitclaim  deed,  so  that  in  either  event  it  be- 
came her  separate  estate,  and  the  person  to  whom  she  conveyed 
obtained  a  complete  title.'  The  general  rule  is,  that  where  a 
husband  has  a  conveyance  of  land  made  to  his  wife,  he  in- 
tends it  as  an  advancement.  It  might  be  imagined  that  a  dif- 
ferent rule  would  prevail  where  the  principles  relating  to  com- 
munity and  separate  property  obtain.  One  of  the  reasons 
advanced  in  favor  of  the  rule  that  such  a  conveyance  became 
an  advancement,  was  that  the  wife  could  not  be  a  trustee  for 
the  husband,  and  hence  there  was  no  ground  for  the  opera- 
tion of  the  doctrine  of  resulting  trusts.  In  a  case  in  Texas, 
the  court,  in  considering  the  effect  of  a  conveyance  to  the 
wife,  said  the  principle  that  the  wife  could  not  be  a  trustee 
"has  little  or  no  force  under  our  system  of  laws  and  of  marital 
rights.  The  right  of  the  wife,  under  our  laws,  to  hold  prop- 
erty, is  coequal  with  that  of  the  husband ;  and  upon  evidence 
it  may  be  shown  that  property  in  the  name  of  one  is  really 
held  for  the  benefit  of  the  other.     It  is  very  true,  that  the 

•  Read  v.  Rahn,  65  Cal.  643.    See,  '  Carpenter  v.  Brackett,  57  Wash, 

also,   Morrison  v.  Wilson,   13   Cal.  460,    107   Pac.   359. 

494 ;    12)    Cal.    593 ;     Shanahan    v.  ^  Christopher  v.  Ferris,  55  Wash. 

Crampton,    92    Cal.    9;    Swain    v.  534,  104  Pac.  818. 
Duane,   48    Cal.    358;    McComb   v. 
Spangler,  71  Cal.  418. 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1649 

wife  is  under  the  burthen,  or  as  the  law  intends,  under  the 
protection  of  some  legal  disabilities,  even  with  reference  to 
her  separate  property;  but  these  have  reference  to  the  mode 
of  alienation,  and  not  to  any  claim  of  the  husband  over  such 
property,  jure  iixoris,  for  he  has  none  except  that  of  manage- 
ment and  its  incidents.  At  all  events,  where  the  fundamental 
principle  of  the  marital  relation  is,  that  whatever  may  be  the 
unity  of  persons  there  is  no  unity  of  estate,  there  can  be  no 
such  rule  as  that  the  wife  cannot  be  a  trustee  for  the  husband 
in  any  sense  which  would  preclude  evidence  showing  that  al- 
though property  is  in  her  name,  it  was  intended  for  the  bene- 
fit of  the  husband."  '  The  court  then  proceeds  to  discuss  the 
effect  of  such  a  conveyance  under  the  laws  of  that  State. 
**The  rational  foundation  for  the  presumption  of  the  wife  is, 
that  the  purchase  is  intended  as  a  provision  for  her;  and  this 
presumption  will  hold  as  well  under  our  system  as  where  the 
rights  of  the  wife  are  not  so  much  favored.  It  may,  and 
would,  under  the  operation  of  our  laws,  be  generally  more 
easily  rebutted  than  it  would  be  where  the  wife  has  no  inter- 
est in  community  property,  and  a  very  restricted  right  to  sep- 

•  Smith  V.  Strahan,  16  Tex.  314,  Boquet,  27  Tex.  507;  Fitts  v.  Fitts, 

321,  67  Am.  Dec.  622.     In  the  ab-  14  Tex.  443;  Parker  v.  Chance,  11 

sence  of  fraud  gifts  between  bus-  Tex.    513;    Fox   v.    Brady,    1    Tex. 

band  and  wife  are  valid.     Parker  Civ.  App.  590,  20  S.  W.  1024;  Cox 

V.   Nolan,  37  Tex.  85;  Richardson  v.   Miller,  54  Tex.   16;   Stafford  v. 

V.   Hutchins,  68  Tex.  81,  3   S.  W.  Stafford,    41    Tex.    411;    Story    v. 

276 ;  Callahan  v.  Houston,  78  Tex.  Marshall,  24  Tex.  305,  76  Am.  Dec. 

494,  14  S.  W.  1027;  Read  v.  Rahm,  106;     Yesler     v.     Hechstettler,     4 

65  Cal.  343,  4  Pac.  111.    In  re  Cud-  Wash.  349,  30  Pac.  398.     But  the 


worth,  133  Cal.  462,  65  Pac.  1041 
Higgins  V.  Higgins,  40  Cal.  259 
Woods   v.   Whitney,   42   Cal.    358 


rights  of  third  persons  must  be 
protected :  Castro  v.  lilies,  22  Tex. 
479,   7Z   Am.   Dec.   277;    Pearce   v. 


Taylor  v.  Opperman,  79  Cal.  468,  21  Jackson,    61    Tex.    462 ;    Green    v. 

Pac.  869;  Wren  v.  Wren,  100  Cal.  Ferguson,   62   Tex.    525;    Hutchin- 

276,  60  Pac.  888;  Lewis  v.  Simon,  72  son  v.  Mitchell,  39  Tex.  487;  Peck 

Tex.  470,   10  S.  W.  554;  Green  v.  v.  Brummagim,  31  Cal.  440,  89  Am. 

Ferguson,  62  Tex.   525;    Peters  v.  Dec.  195. 
Clements,   46   Tex.    114;    .Smith    y. 
Deeds,  Vol.  II.— 104 


1650  THE    LAW    OF    DEEDS.  [CHAP.    XXV. 

arate  estate.  The  necessity  for  a  provision  would  not  so  often 
exist  in  this  State  as  in  others,  where,  by  operation  of  law, 
the  great  proportion  of  the  wife's  property  is  absorbed  by  the 
husband.  But  the  necessity  might  and  would  often  exist  in 
fact.  The  property  of  the  wife  might  not  be  large,  or  in  pro- 
portion to  her  condition  and  situation  in  life;  and  in  fact, 
though  eminent  advantages  are  afforded  the  wife  by  our  laws, 
yet  her  condition  is  not  so  much  enlarged  as  to  repel  the  pre- 
sumption of  benefit  from  a  purchase  made  by  a  husband  in 
her  name,  out  of  her  own  separate  funds.  The  legal  effect 
and  operation  of  the  deed  is  to  vest  the  property  in  the  wife. 
This  effect  would  be  rebutted,  in  case  a  stranger  were  the 
nominee  in  the  purchase.  But  the  wife  is  not  as  a  stranger  to 
the  husband.  She  has  distinct  rights  and  a  separate  estate, 
but  he  is  bound  for  her  support  and  maintenance,  not  only  by 
law,  but  from  the  impulses  of  affection ;  and  a  conveyance  to 
her,  when  the  purchase  money  is  advanced  by  himself,  is  not 
to  be  presumed  prima  facie  an  arrangement  for  his  conven- 
ience, but  as  importing  to  the  wife  a  substantial  benefit,  and 
vesting  in  her  the  whole  interest,  as  well  legal  as  beneficial."  * 
If  a  husband  who  has  bought  real  estate  with  community 
funds,  directs  that  the  deed  should  be  made  to  his  wife,  with 
the  intention  that  it  should  constitue  separate  property,  she 
takes  it  as  a  part  of  her  separate  estate  but  it  must  appear 
that  it  was  the  intent  to  make  it  her  separate  property.^ 

§  872a.  Subsequently  acquired  title  passes. — The  pre- 
sumption arising  from  a  conveyance  made  by  a  husband  to 
his  wife,  where  apt  words  of  grant  are  used  without  other 

*  Smith  ▼.  Strahan,  16  Tex.  314,  his  own  name,  it  was  held  that  as 

322,  67  Am.  Dec.  622.    This  is  but  between  the  husband  and  wife,  the 

a    presumption,    however,    and    not  land    so    purchased    was    also    the 

conclusive.     In   Rich   v.   Tubbs,  41  separate  property  of  the   wife. 

Cal.    34,    where    the    husband    pur-  ^  Fanning  v.  Green,  156  Cal.  279, 

chased  land  with  the  separate  prop-  104  Pac.  308. 
exty  of  his  wife,  taking  the  deed  in 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1651 

words  in  any  part  of  the  deed  indicating  an  intention  to  con- 
vey a  less  estate,  is  that  a  fee-simple  title  passes  to  her.  If 
the  husband  had,  prior  to  the  execution  of  the  deed,  executed 
a  deed  of  trust  to  secure  the  payment  of  a  debt,  the  reconvey- 
ance of  the  naked  legal  title  subsequently  by  the  trustees  to  the 
husband  does  not  inure  to  the  benefit  of  the  community.  By 
virtue  of  the  husband's  former  grant  to  the  wife,  the  title  so 
conveyed  to  him  by  the  trustees  passes  by  operation  of  law  to 
her.3 

§  873.  Voluntary  gift  in  fraud  of  wife. — While  gen- 
erally the  husband  has  the  sole  right  to  alienate  or  encumber 
the  property,*  yet  he  cannot  make  a  voluntary  gift  for  the 
purpose  of  defrauding  the  wife.  In  an  early  case  in  Califor- 
nia the  court  said :  "But  we  think  it  clear  that  the  law,  not- 
withstanding its  broad  terms,  will  not  support  a  voluntary 
disposition  of  the  common  property,  or  any  portion  of  it,  with 
the  view  of  defeating  any  claim  of  the  wife."^  And  later 
the  court  remarked  of  this  restriction  upon  his  power :  "This 
springs  from  the  relation  of  the  parties  and  their  title  to  the 
property,  both  spouses  being  jointly  entitled  to  the  property, 
though  the  husband  has  the  entire  management  and  control 
of  it,  and  can  pass  the  title  in  his  name  alone.  All  persons  oc- 
cupying a  fiduciary  relation  are  in  a  like  manner  disabled  from 
disposing  of  the  trust  property,  for  the  purpose  of  defrauding 
those  who  are  interested  in  it."  ^  In  a  subsequent  case  the 
court  laid  down  this  as  the  law:  "A  deed  of  gift  of  a  por- 
tion of  the  common  property  by  the  husband  is  not  void  per  se. 
If  the  gift  be  made  with  the  intent  of  defeating  the  claims  of 

SKlumpke  v.  Baker,  68  Cal.  559.  18  Tex.  206.     But  in   Washington 

<  Brewer    v.    Wall,   23    Tex.    588,  Ty.,  see  Code,  §  2410. 

76  Am.  Dec.  76;  Ranney  v.  Miller,  5  Smith    v.    Smith,    12    Cal.    216, 

51   Tex.  263;    Higgins  v.  Johnson,  225,  73  Am.  Dec.  533. 

20    Tex.    396,    70    Am.    Dec.    394;  6  Peck    v.    Brummagim,    31    Cal. 

Wright   V.    Hays,    10   Tex.    132,   60  440,  447,  per  Mr.  Justice   Rhodes; 

Am.    Dec,   200;    Prinn    v.    Barton,  89  Am.  Dec.  195. 


1652 


THE    LAW    OF    DEEDS. 


[chap.    XXV. 


the  wife  in  the  common  property,  the  transaction  would  be 
tainted  with  fraud.  In  the  absence  of  such  fraudulent  intent, 
a  voluntary  disposition  of  a  portion  of  the  property,  reasonable 
in  reference  to  the  whole  amount,  is  authorized  by  the  statute, 
which  gives  to  the  husband  the  absolute  power  of  disposition 
of  the  common  property,  as  of  his  own  separate  estate."  '  But 
it  seems  that  she  cannot  bring  an  action  to  set  aside  the  con- 
veyance during  the  existence  of  the  marriage  tie.'  In  Texas 
it  is  held  that  if  the  husband  abandons  the  management  of  the 
community  property,  and  deserts  his  wife  and  country,  and 
his  absence  is  prolonged  for  several  years,  his  right  of  control 
will  cease,  and  the  wife  becomes  vested  with  the  control  of  the 
common  property.'    The  statute  in  California  has  been  amend- 


'^Lord  V.  Hough,  43  Cal.  581, 
585. 

*  Greiner  v.  Greiner,  58  Cal.  115, 
and  cases  cited.  In  Ray  v.  Ray, 
1  Idaho,  566,  579,  the  court,  speak- 
ing of  the  effect  of  a  sale  after  a 
vohmtary  separation  and  before  a 
legal  separation,  say:  "The  point 
presented  for  our  consideration  is 
simply  this:  .  Was  the  sale  of  the 
property  by  Ray  to  Dangel,  after 
the  thirty-first  day  of  January,  the 
day  of  the  voluntary  separation  by 
his  wife,  and  before  the  legal  sep- 
aration was  effected  in  the  divorce 
suit,  a  valid  sale,  or  was  it  a  fraud 
per  se  upon  the  wife,  who  had,  or 
was  about  to  institute  a  suit  for 
a  divorce,  and  a  division  of  the 
common  property?  The  answer  to 
this  must  be  that  the  sale  was  a 
valid  one,  so  far  as  it  is  necessary 
to  consider  it  in  this  case.  The 
law  gave  him  the  absolute  right  of 
disposal,  as  much  so  as  if  it  had 
been  his  separate  estate :  Van 
Maren  v.  Johnson,  15  Cal.  311. 
The  mere  act  of  voluntary  separa- 


tion by  the  wife,  even  with  the 
expressed  intention  of  bringing  her 
suit  for  a  division  of  the  property, 
did  not  of  itself  change  the  char- 
acter of  the  community  property, 
and  vest  it  in  herself,  in  her  indi- 
vidual right.  Her  husband  retained 
the  same  absolute  control  and  pow- 
er of  disposition  over  it,  under  such 
circumstances,  as  he  possessed  be- 
fore the  separation,  and  any  sale 
made  by  him  to  another  in  good 
faith,  and  for  an  adequate  consider- 
ation was  as  valid  in  law  as  though 
no  separation  had  taken  place: 
Lord  V.  Hough,  43  Cal.  585.  The 
sale,  under  such  circumstances,  was 
as  much  for  her  benefit  as  for  her 
husband's.  The  consideration  re- 
ceived became  a  substitute  for  the 
property  sold  as  common  prop- 
erty, and  inured  equally  to  the 
benefit  of  the  husband  and  wife." 
9  Wright  V.  Hays,  10  Tex.  133, 
60  Am.  Dec.  200;  Lodge  v.  Lever- 
ton,  42  Tex.  21 ;  Kelley  v.  Whitte- 
more,  41  Tex.  648 ;  Zimpelman  v. 
Robb,  53  Tex.  281. 


CHAP.    XXV,]       PRINCIPLES    OF    CONSTRUCTION.  1653 

ed  by  providing  that  the  husband  cannot  make  a  gift  of  the 
common  property,  or  convey  the  same  without  a  valuable  con- 
sideration, unless  the  wife  in  writing  consent  thereto.*  ^  But 
this  amendment  does  not  have  a  retroactive  effect.  The  hus- 
band cannot  be  deprived  of  his  vested  right  to  dispose  of 
property  acquired  before  the  passage  of  the  amendment.* 

§  874.  Title  acquired  after  voluntary  separation. — All 
title  acquired  by  either  party  after  marriage,  save  by  gift,  de- 
vise, or  descent,  is  community  property,  and  its  character  as 
such  is  not  changed  by  the  fact  that  before  its  acquisition  the 
parties  have  separated  by  mutual  consent,  but  without  a  de- 
cree of  divorce.  In  a  case  in  Texas,  the  court  considered  the 
effect  of  some  prior  decisions  determining  conjugal  and  ma- 
trimonial rights  of  parties  that  originated  under  the  Spanish 
law,  which  gave,  under  certain  rules  and  limitations,  effect  to 
a  second  and  putative  marriage,  while  the  parties  to  the  first 
were  still  living,  and  the  marriage  had  not  been  dissolved. 

1  Civil  Code,  Cal.  §  172.  v.    Bromberg,    28   Tex.    Civ.    App. 

2Clavo    V.    Clavo,    10    Cal.    App.  145,  66  S.  W.  468;  Scott  v.  May- 

447,  102  Pac.  556.    the  general  rule  nard,  Dall.  548;  Cook  v.  Bremond, 

is   that   the   husband   may   transfer  27    Tex.    457,    86    Am.    Dec.    626; 

the  community  property:     Spreck-  Berry    v.    Wright,     14    Tex.    270; 

els   V.    Spreckels,    116   Cal.   339,   36  Hagerty  v.   Harwell,   16  Tex.  663; 

L.R.A.   497,  48   Pac.   228,'  58   Am.  Harden  v.   Sparks,  70  Tex.  429,  7 

St.  Rep.  170;  Cooke  v.  Cooke,  104  S.  W.  769;  Dooley  v.  Montgomery, 

Ky.   473,   47    S.   W.    325;    Moreau  72  Tex.   429,  2  L.R.A.   715,    10   S. 

v.  Detchemendy,  18  Mo.  522;  Ray  W.  451;  Moore  v.  Moore,  73  Tex. 

V.    Ray,    1    Idaho,    566;    Wilson   v.  383,    11    S.    W.    396;    Hearfield    v. 


Wilson,  6  Idaho,  597,  57  Pac.  708 
Belden  v,  Hanlon,  32  La.  Ann.  85 
Cotton  v.  Cotton,  34  La.  Ann.  858 


Bridges,  75  Fed.  47,  21  C.  C.  A. 
212.  But  he  cannot  defraud  the 
wife:    Moore    v.    ]\Ioore,    73    Tex. 


Smitheal    v.    Smith,    10    Tex.    Civ.  383,    11    S.    W.    396;    Stramler    v. 

App.  446,  31.  S.  W.  422;   Eastham  Coe,  15  Tex.  211;  Cetti  v.  Denman, 

v.  Sims,  11  Tex.  Civ.  App.  133,  32  26  Tex.   Civ.   App.   433,  64   S.   W. 

S.    W.   359;    Clopper    v.    Sage,    14  787;   Smith  v.  Smith,  12  Cal.  216; 

Tex.  Civ.  App.  296,  37  S.  W.  363;  Trestin    v.    Faught,    23    Cal.    237; 

Phcenix  Ins.   Co.  v.  Neal,  23  Tex.  Cotton  v.  Cotton,  34  La.  Ann.  858; 

Civ.  App.  427,  56  S.  W.  91;  Mass  Belden  v.  Belden,  32  La.  Ann.  85. 


1654  THE   LAW   OF   DEEDS.  [CHAP.    XXV. 

The  court  said  of  these  decisions :    "But  the  laws  under  which 
such  cases  have  been  determined  cannot  be  invoked,  nor  can 
thcj|.e  decisions  furnish  reason  or  authority  to  ascertain  the 
effect  of  a  putative  marriage  under  a  system  of  law  which 
recognizes  but  one  vaHd  and  subsisting  marriage  to  continue 
and  endure  until  death,  or  until  it  is  dissolved  by  judicial  de- 
cree.    The  validity  under  the  Spanish  civil  law  of  a  putative 
marriage  carried  with  it  the  ordinary  consequences  of  legality; 
it  being  a  lawful  marriage,  the  contract  established,  therefore, 
a  community  of  rights  between  the  parties  to  it;  its  legality 
was  essential  to  induce  that  consequence.     The  converse  must 
be  likewise  true — that  if  it  was  not  a  lawful  marriage,  the  in- 
cident of  community  rights,  which  belong  only  to  a  lawful 
conjugal  partnership,  will  not  attach  to  it.     The  law  of  our 
State  then  impresses  upon  the  marriage  relation  inflexible  and 
continuous  durability,  and  at  its  formation,  ipso  facto,  estab- 
lishes a  community  of  interest  in  all  property  that  may  be 
thereafter  acquired  by  either  of  the  matrimonial  partners,  ex- 
cept that  acquired  by  gift,  grant,  or  descent.     Under  our  law 
it  may  be  said,  as  it  is  expressed  by  the  Louisiana  Civil  Code, 
that  every  marriage  superinduces,   of   right,   partnership  or 
community  in  all  acquisitions.     This  conjugal  partnership  is 
not  established  upon  the  basis  of  equality  of  contribution  of 
labor  or  capital  by  the  parties  to  it,  and  it  exists  and  is  en- 
forced under  principles  which   recognize  perfect  union  and 
equality  of  enjoyment  of  gains,  and  the  division  thereof,  re- 
gardless of  all  inequalities  induced  by  accident,  misfortune, 
disease,  idleness,  or  even  wasteful  habits  of  one  or  the  other 
of  the  spouses.    Such  was  the  attribute  assigned  to  the  system 
by  the  Spanish  civil  law.     .    .    .    We  have  adopted  this  civil- 
law  rule  as  it  applies  to  the  marital  relation,  ingrafting  it  upon 
our  common-law  contract  of  marriage,   which,   as  we  have 
shown,  recognizes  no  second  contract  of  that  character,  nor 
conjugal  relation  with  other  persons  during  the  continuance 
of  the  lawful  marriage,  unless  the  relation  is  lawfully  dis- 


CHAP.    XXV.]       PRINCIPLES   OF    CONSTRUCTION.  1655 

solved.  In  adopting  the  community  system,  as  it  may  be 
termed  for  convenience  of  expression,  neither  the  civil  law 
governing  the  subject  of  marriage  nor  the  entire  system  of 
acquests  and  gains  was  made  a  part  of  our  law.  The  enact- 
ments which  regulate  the  subject  in  this  State  are  specific  and 
definite  statutory  rules,  and  the  civil  law  is  not  incorporated 
with  them,  nor  is  it  further  accepted  than  as  it  may  have  been 
enacted  in  the  statute.  Therefore,  the  qualifications  and  modi- 
fications of  the  operation  of  the  community  system  in  civil- 
law  States,  as  Louisiana,  or  in  civil-law  countries,  or  those 
under  civil-law  jurisdiction,  as  Spain,  France,  and  Texas  as 
it  once  was,  will  not  have  application  in  determining  how  far 
marital  rights  to  property  claimed  under  a  marriage  which  is 
governed  by  common-law  principles,  will  be  affected  by  a  sec- 
ond or  putative  marriage  recognized  as  valid  under  the  civil 
law."  '  The  court  then  referred  to  some  decisions  made  upon 
the  civil  law,  showing  that  the  terms  of  that  law  provided  for 
the  forfeiture  of  rights  in  certain  cases,  and  continued :  "In 
the  present  state  of  our  decisions,  therefore,  it  may  be  con- 
cluded that  there  has  not,  as  yet,  been  laid  down  a  rule  where- 
by to  determine  the  limits  within  which  the  wife  is  secure 
against  the  forfeiture,  by  her  fault  or  misconduct,  of  her 
statutory  right  to  a  share  in  the  community.  Her  status  as 
wife  is  fixed;  the  right  of  property  she  acquires,  the  duties  and 
disabiliies  imposed  upon  her  by  the  marriage,  are  precisely 
defined,  but  neither  by  dicta  nor  decision  has  it  yet  been  de- 
termined what  acts,  facts,  or  circumstances,  while  the  duties, 
disabilities,  and  burthens  of  the  contract  still  attach  to  her, 
shall  divorce  her  from  the  rights  of  property  she  acquired  by 
the  same  contract.  The  facts  of  this  case  do  not  require  us 
to  establish  that  important  boundary  line  in  the  separation  of 
these  important  rights  more  definitely,  if  it  should  be  drawn, 
than  to  determine  the  question  in  a  negative  form,  without 
attempting  to  prescribe  a  rule  or  principle  for  the  entire  sub- 

»Routh  V.   Roiith,   57  Tex.  589,      595. 


1556  THE   LAW   OF   DEEDS.  [CHAP.    XXV. 

ject  under  other  phases  and  facts.  The  principle  referred  to, 
however,  is  intimately  associated  with  the  case  before  us,  and 
with  the  operation  of  the  principle  that  marriage  attaches  to 
it  as  a  sequence,  the  continued  right  of  the  wife  to  an  equal 
interest  in  the  community,  until  that  right  is  in  some  mode 
recognized  by  the  law  forfeited ;  and  with  the  unquestionable 
proposition  that  the  existence  merely  of  cause  for  divorce  does 
not  necessarily  impair  her  marital  rights  to  property;  which 
rights  coexist  with  the  contract  of  marriage — a  part  of  its 
essence — irrespective  of  any  mere  balance  sheet  to  be  struck 
between  herself  and  her  husband  on  account  of  their  respective 
moral  or  conjugal  merits  or  demerits,  or  that  would  show  as  a 
debit  against  her,  that  her  husband  may  have  had  just  grounds, 
which  he  had  never  legally  asserted,  for  terminating  by  law 
his  relations  with  her.  Slight  reflection  even  is  sufficient  to 
suggest  the  difficulties  that  would  attend  the  efforts  of  courts 
to  establish,  on  consistent  and  harmonious  principles,  rules 
to  forfeit  for  causes  of  divorce,  and  for  delinquences  to  matri- 
monial obligations,  marital  rights  of  property  without  en- 
croachment upon  the  province  of  the  lawmaking  power;  and 
also  without  being  involved  in  the  most  serious  embarrass- 
ment in  resting  them  upon  any  other  than  their  own  arbitrary 
selection  of  the  particular  circumstances  under  which  they 
should  be  applied.  The  varying  course  of  uncongenial  mar- 
ried life,  its  bickerings,  quarrels,  wrongs,  sometimes  mutually 
suffered,  its  condonations  and  fresh  ruptures  and  recurring 
returns  to  mutual  respect  and  love,  when  employed  as  a  basis 
and  standard  to  regulate  the  rights  of  the  parties  in  the  finan- 
cial branch  of  their  partnership,  presents  a  medley  of  incon- 
gruous elements  from  which  no  legal  or  equitable  rule  could 
be  applied,  consistent  with  either  the  policy  of  the  law  govern- 
ing the  domestic  relation  of  husband  and  wife,  or  the  relative 
rights  of  both  of  the  parties  to  property  under  our  community 
system."  *     Hence,  where  a  person  separated  from  a  second 

4Routh   V.   Roiith,   57   Tex.   589,      597. 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION. 


1657 


wife  without  a  decree  of  divorce,  and  removed  to  Texas  with 
the  children  of  his  first  marriage,  where  he  was  married  a 
third  time  to  one  who  did  not  know  that  he  had  a  wife  then 
Hving,  and  subsequently  acquired  real  estate  in  Texas,  it  was 
held  in  a  suit  after  his  death  between  the  second  wife  and  a 
child  of  the  first  marriage,  that  the  separation  did  not  operate 
as  a  forfeiture  of  her  right  Is  a  party  to  the  community  to 
the  such  subsequently  acquired  land.^ 


SRouth  V.  Routh,  57  Tex.  589. 
"Their  voluntary  separation  and 
living  apart,"  said  the  court,  "did 
not  have  the  effect  to  forfeit  mari- 
tal rights  in  the  community  of 
gains ;  nor  did  his  causes  of  com- 
plaint against  her  on  account  of 
her  temper,  language,  and  treat- 
ment of  his  children,  add  any  legal 
force  to  the  fact  that  they  caused 
him  to  abandon  her.  'The  law 
wisely  refuses,'  said  Judge  Porter, 
in  Cole's  Wife  v.  His  Heirs,  7 
Martin,  N.  S.,  49,  18  Am.  Dec.  241, 
'any  legal  effect  to  a  voluntary  sep- 
aration of  those  who  are  bound  by 
the  most  solemn  obligations  to  live 
together.'  And  in  the  case  referred 
to,  where  the  husband  acquired  all 
the  property  in  New  Orleans,  dur- 
ing a  voluntary  separation  of  several 
years  preceding  his  death,  she  living 
in  New  York,  and  never  having 
been  in  the  State  of  Louisiana,  she 
was  held  to  be  entitled  to  her  equal 
one-half  interest.  When  Jonathan 
Routh  established  himself  in  Texas, 
his  domicile  became  that  of  the 
wife  for  all  the  purposes  of  her 
beneficial  interest  under  the  circum- 
stances of  their  separation.  In 
Cole's  Wife  v.  His  Heirs,  7  Martin, 
N.  S.,  49,  18  Am.  Dec.  241,  the  able 
jurist    who    delivered    the    opinion 


showed  that  the  writers  on  the  civil 
law,  where  the  community  system 
prevails,  who  treat  on  the  subject, 
all  lay  it  down  that  the  residence  of 
the  parties  in  different  places  will 
not  prevent  the  community  from 
existing.  That  the  separation  re- 
ferred to  by  them,  which  terminates 
the  community  interest,  is  a  legal 
one,  and  that  a  judicial  sentence 
is  necessary  to  destroy  the  com- 
munity." In  Newland  v.  Holland, 
45  Tex.  588,  Mr.  Justice  Moore,  in 
delivering  the  opinion  of  the  court, 
says :  "That  a  wife  who  voluntarily 
and  without  any  just  and  reason- 
able cause,  abandons  and  separates 
herself  from  her  husband,  and  con- 
tinues, in  wanton  disregard  of  her 
duties  as  a  wife,  to  live  separate 
and  apart  from  him  at  the  time  of 
his  death,  is  estopped  and  precluded 
from  claiming  the  homestead  rights 
given  by  the  constitution  and  stat- 
utes to  the  surviving  wife,  is  not 
now  an  open  question  in  this  court. 
See  Sears  v.  Sears,  45  Tex.  557, 
decided  at  a  former  day  of  this 
term,  and  the  cases  there  cited. 
But  it  by  no  means  follows  that  the 
court  can  hold  that  by  so  doing 
she  also  forfeits  her  entire  interest 
in  the  community  estate,  or  the 
distributive   share   of   the  separate 


1658 


THE   LAW   OF   DEEDS. 


[chap.    XXV. 


§  875.  Gift  in  compensation  for  services. —  A  gift  made 
to  one  of  the  parties  to  the  marriage  is  the  separate  property 
of  the  party  to  whom  it  is  made,  and  the  fact  that  the  gift 
is  made  to  the  wife  in  compensation  for  services  rendered  by 
her  to  the  donor,  does  not  change  its  character  as  separate 
property.  The  husband  has  no  greater  power  over  property 
conveyed  to  the  wife,  under  these  circumstances,  than  he  has 
over  any  other   separate  property  belonging   to   her.®     The 


property  of  her  deceased  husband, 
given  her  by  the  statute.  The 
homestead  is  intended  for  the  com- 
fort and  security  of  the  family,  and 
for  like  considerations  its  rights  an 
privileges  are  extended  to  and  con- 
ferred upon  the  family  of  the  de- 
cedent after  his  death,  so  long  as 
any  constituent  of  it  remains.  But 
it  is  only  when  there  is  a  family,  or 
some  remaining  constituent  of  the 
family  surviving  him,  that  the 
rights  and  privileges  of  the  home- 
stead subsist  or  are  recognized  by 
law.  Unquestionably,  when  the 
wife  has  voluntarily  and  without 
cause,  withdrawn  from  and  de- 
stroyed the  family,  ceased  to  be  a 
member  of  it,  it  would  be  mockery 
to  say  that  she  is  reunited  to  or  be- 
come again  a  member  of  it  by  the 
death  of  her  husband,  or  can  claim 
privileges  and  immunities  which  by 
law  are  only  given  to  the  family  or 
some  surviving  constituent  of  it.  But 
the  right  of  the  surviving  wife  to 
her  interest  in  the  community  prop- 
erty, or  her  distributive  portion  of 
the  separate  estate  of  her  deceased 
husband,  grows  out  of  and  depends 
upon  the  existence  of  the  marital 
relation  between  the  parties,  and 
not  merely  upon  continued  existence 
of  the  family.  It  may  be  that  by 
the   separation   the   community   in- 


terest in  future  gains  will  cease; 
but  certainly  it  does  not  work  a 
forfeiture  in  such  as  have  been 
previously  acquired.  And  the  mere 
withdrawal  of  the  wife  from  the 
husband  and  continuance  to  live 
separate  and  apart  from  him,  how- 
ever unjustifiable  and  improper  her 
doing  so  may  be,  does  not  operate 
and  cannot  be  treated  as  tanta- 
mount to  a  severance  of  the  marital 
relation.  Though  the  husband  may 
have  good  cause  for  annulling  the 
marriage,  evidently,  unless  he 
chooses  to  do  this,  the  mere  im- 
proper and  wrongful  withdrawal  by 
the  wife,  and  her  living  apart  from 
him,  cannot  have  this  effect.  And 
if  he  does  not  choose  by  his  will 
to  deprive  her  of  the  distributive 
interest  in  his  separate  estate,  which 
the  statute  gives  her  in  the  absence 
of  any  testamentary  disposition  of 
his  property  by  her  husband,  it  is 
not  conceived  that  the  court  has 
any  power  to  do  so."  See,  as  to 
the  effect  of  a  second  and  putative 
marriage  under  the  Spanish  law, 
while  the  parties  to  the  first  were 
still  living,  and  the  marriage  had 
not  been  dissolved.  Smith  v.  Smith, 
1  Tex.  621,  46  Am.  Dec.  121;  Lee 
v.  Smith,  18  Tex.  145;  Nichols  v. 
Stewart,  15  Tex.  233. 
6Fisk  V.  Flores,  43  Tex.  340. 


CHAP.    XXV.]       PRINCIPLES   OF    CONSTRUCTION.  1659 

court,  after  considering  the  rules  of  the  civil  law  as  to  dona- 
tions, observed :  "It  is  also  quite  evident  that  it  is  entirely 
consistent  with  the  nature  of  a  title  by  'donation,'  that  the 
donor  may  be  removed  by  reason  of  services  rendered  by  the 
donee  to  make  the  donation,  and  that  it  is  induced  by  such  con- 
sideration does  not  take  from  the  transaction  the  character  of 
'a  donation.'  "  ' 

§  875a.  Unrecorded  tax  deed. — Until  the  limitation  of 
the  period  necessary  to  ripen  adverse  possession  under  an 
unrecorded  tax  deed  has  elapsed,  the  title  is  not  acquired  and 
if  the  death  of  the  wife  occurs  before  that  time,  the  title  does 
not  become  community  property.' 

§  876.  Rebuttal  of  presumption  of  community  prop- 
erty.—The  presumption  that  property  conveyed  to  one  of 
the  parties  to  the  marriage  for  a  pecuniary  consideration  is 
community  property,  may  be  rebutted  by  showing  that  the 
purchase  money  was  the  separate  property  of  the  one  to  whom 
the  deed  is  made.^  Evidence  may  be  received  for  the  purpose 
of  showing  from  what  source  the  consideration  proceeded,  on 
the  same  principle  that  permits  the  introduction  of  evidence 
to  show  that  a  deed  absolute  on  its  face  is  a  mortgage,  or  to 
show  that  although  the  deed  is  made  to  one  person  the  con- 
sideration was  in  fact  paid  by  another.  Neither  party  to  the 
marriage  is  estopped  from  showing,  as  against  the  other,  the 
facts  connected  with  the  transaction,  or  from  showing  that 
the  grantee  did  not  pay  the  consideration  from  his  or  her  sep- 

7  Fisk  V.  Flores,  43  Tex.  340,  433,  »  Ramsdell  v.  Fuller,  28  Cal.  37, 

per   Moore,   J.  87  Am.  Dec.  103;  Woods  v.  Whit- 

8Votaw    V.    Pettigrew,    15    Tex.  iiey,  42  Cal.  358;  Ingersoll  v.  True- 
Civ.  App.  87,  38  S.  W.  215;  Roberts  body,  40  Cal.  612;  Smith  v.  Boquet, 
V.  Trout,  13  Tex.  Civ.  App.  70,  35  27  Tex.  512;  Peck  v.  Brummagim, 
S.  W.  323;  Bishop  v.  Lusk,  8  Tex.  31  Cal.  441,  89  Am.  Dec.  195. 
Civ.  App.  30,  27   S.  W.  306;   Zaf- 
ford  V.   Foster,  36  Tex.   Civ.   App. 
56,  81  S.  W.  63. 


1660 


THE    LAW    OF    DEEDS. 


[chap.    XXV. 


arate  funds,  and  between  them,  or  between  one  of  them  and 
the  heirs  of  the  other,  no  questions  involving  the  doctrine  of 
notice  can  be  mooted.^  Where  the  wife  purchased  real  estate 
and  paid  a  part  of  the  price  with  her  separate  funds,  the  bal- 
ance being  secured  by  a  note  and  trust  deed  signed  both  by 
her  and  her  husband,  and  there  was  nothing  showing  that  the 
vendor  looked  to  her  alone  for  the  payment  of  the  loan,  it 
was  held  that  the  land  was  her  separate  property  so  far  as  sep- 
arate funds  went  to  its  payment,  and  w^as  community  property 
in  so  far  as  the  money  realized  on  the  note  and  deed  of  trust 
went  to  its  payment.^ 

§  877.  Presumption  when  deed  is  made  to  wife. — As 
to  the  presumption  that  should  prevail  where  a  deed  is  made 
to  the  wife,  and  the  rights  of  third  persons  are  concerned,  the 
courts  are  not  agreed.  In  California  prior  to  the  amendment 
of  the  code  the  rule  was  that  if  the  deed  is  made  to  the  wife, 
the  record  gives  notice  to  all  the  world  that  the  property  may 
be  the  separate  property  of  the  wife.  This  fact,  was  prior 
to  the  amendment,  considered  sufficient  to  put  subsequent  pur- 
chasers upon  inquirjr,  and  if  they  purchased  the  property  from 
the  husband  they  did  so  at  their  peril^     Mr.  Justice  Sawyer 


1  Peck  V.  Brummagim,  31  Cal. 
440,  89  Am.  Dec.  195.  The  pre- 
sumption that  property  is  that  of 
the  community  may  be  overcome 
by  evidence:  Schuyler  v.  Brough- 
ton,  70  Cal.  282,  11  Pac.  719;  Santa 
Cruz  Rock  Pav.  Co.  v.  Lyons,  43 
Pac.  599;  Freese  v.  Hibernia  Sav. 
etc.  Soc,  139  Cal.  392,  73  Pac.  172; 
In  re  Boody,  119  Cal.  402,  51  Pac. 
634;  Hoeck  v.  Greif,  142  Cal.  119, 
75  Pac.  670;  Bollinger  v.  Wright, 
143  Cal.  292,  76  Pac.  1108;  Neher 
v.  Armijo,  9  N.  M.  325,  54  Pac. 
236;  Strong  v.  Eakin,  66  Pac.  539; 
Stauffer  v.  Morgan,  39  La.  Ann,  632, 


2  So.  98;  Rogge's  Succession,  50 
La.  Ann.  1220,  23  So.  993;  Hames 
v.  State,  46  Tex.  Cr.  562,  81  S.  W. 
708;  Duncan  v.  Bickford,  83  Tex. 
322,  18  S.  W.  598;  Clark  v.  Thayer, 
98  Tex.  142,  81  S.  W.  1274;  Wey- 
mouth v.  Sawtelle,  14  Wash.  32,  44 
Pac.  109;  Brookman  v.  State  Ins. 
Co.,  18  Wash.  308,  51  Pac.  395; 
Hanrick  v.  Patrick,  119  U.  S.  156, 
30  L.  ed.  396,  7  S.  Ct.  147. 

i^  Barr  v.  Simpson,  117  S.  W. 
1041. 

SRamsdell  v.  Fuller,  28  Cal.  37, 
87  Am.  Dec.   103. 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1661 

said  in  one  of  the  early  cases  that  the  deed  in  question  was 
sufficient  in  law  to  convey  a  title  to  the  wife,  but  whether 
by  it  the  estate  became  separate  or  community  property,  de- 
pended upon  a  fact  dehors  the  deed,  although  ostensibly  the 
intent  was  to  vest  the  title  in  her.  The  justice  proceeded 
to  say:  "It  did  not  appear  on  the  face  of  the  deed  that  the 
grantee  was  a  married  woman,  or  that,  being  a  married  wom.an, 
the  consideration  was  paid  out  of  her  separate  estate.  The 
deed  then,  so  far  as  shown  on  its  face,  might  have  conveyed 
a  title  absolute  to  a  feme  sole,  a  separate  estate  to  a  feme  cov- 
ert, or  an  estate  in  common  to  both  husband  and  wife.  Upon 
the  best  view  for  plaintiff,  the  deed  upon  its  face  was  equivo- 
cal. But  it  afforded  to  all  persons  seeking  to  acquire  title 
under  it  a  clue  to  the  title,  which  they  were  bound  to  pursue, 
or  suffer  the  consequences  of  their  laches.  The  grantee  is  a 
woman.  The  presumption  of  law  is,  that  she  is  sole,  and 
prima  facie  a  conveyance  from  her  would  pass  the  title.  But 
she  may  be  married,  and  her  deed  may  not  pass  the  title.  The 
fact  as  to  whether  she  is  married  or  single,  all  parties  dealing 
with  the  land  must  ascertain,  or  omit  to  do  so  at  their  peril. 
So,  also,  if  a  grantee  of  a  conveyance  for  a  money  considera- 
tion is  a  married  woman  at  the  date  of  the  conveyance,  prima 
facie  a  conveyance  by  the  husband,  in  his  own  name,  of  the 
land  so  conveyed  to  the  wife  will  be  presumed  to  pass  the  title; 
but  in  fact  it  may  not,  for  the  reason  that  the  land  may  still 
be  the  separate  property  of  the  wife,  which  he  has  no  power 
to  convey.  And  in  such  cases,  as  in  the  case  last  mentioned, 
all  parties  claiming  title  through  the  husband  to  lands,  the 
title  to  which  never  stood  in  his  name,  must  ascertain  at  their 
peril,  whether  he  did  in  fact  have  the  power  to  convey."  * 
The  law  as  to  community  property  in  California  has  been 
amended  so  that  now  if  property  is  conveyed  to  a  married 

^Ramsdell  v.  Fuller,  28  Cal.  43,  v.  Clark,  8  La.  Ann.  287;  Domin- 
87  Am.  Dec.  103.  See,  also,  Peck  guez  v.  Lee,  17  La.  295;  Conor  v. 
V.  Vandenberg,  30  Cal.  36;  Metcalf      Conor,  11  Rob.  (La.)  526. 


1562  THE    LAW    OF    DEEDS.  [CHAP.    XXV. 

woman  by  an  instrument  in  writing,  the  presumption  is  that 
the  title  thus  vested  in  her  is  her  separate  property.  If  the 
conveyance  is  made  to  a  married  woman  and  her  husband,  or 
to  her  and  any  other  person,  the  presumption  is  that  she  takes 
the  part  conveyed  to  her,  as  tenant  in  common,  unless  a  dif- 
ferent intention  is  expressed  in  the  instrument.  This  pre- 
sumption is  conclusive  in  favor  of  a  purchaser  or  encum- 
brancer in  good  faith  and  for  a  valuable  consideration.^  The 
statute  was  also  amended  by  providing  that  where  married 
women  had  conveyed  or  should  after  the  passage  of  the  stat- 
ute convey  any  property  which  they  acquired  prior  to  May 
nineteenth,  1889,  the  husband  or  the  heirs  or  assigns  of 
such  married  woman  should  be  barred  from  commencing  or 
maintaining  any  action  to  show  that  the  real  property  was 
community  property  or  to  recover  it,  unless  such  action  should 
be  commenced,  as  to  any  conveyance  made  prior  to  the  act 
within  one  year  after  the  date  the  act  took  effect,  and  as  to 
conveyances  made  subsequently  to  the  passage  of  the  act,  un- 
less such  action  should  be  commenced  within  one  year  from 
the  filing  in  the  recorder's  conveyance  of  such  record.®  The 
general  rule,  however,  is  that  if  a  deed  is  made  to  a  married 
woman  for  a  consideration  not  coming  from  her  separate  es- 
tate the  property  will  be  that  of  the  community.'  Parol  evi- 
dence is  admissible  to   show   that   the   wife   was   named   as 

5  Civil  Code,  §  164.  Henry    v.    Vaughan,   46   Tex.    Civ. 

6  Civil  Code,.Cal.  §   164.  App.  531,  103  S.  W.   192;  Hart  v. 
'Smith  v.  Strahan,  16  Tex.  314,       Robertson,  21   Cal.  346;  Gwynn  v. 

67  Am.  Dec.  622;  Zorn  v.  Tarver,  Dierssen,  101  Cal.  563,  36  Pac.  103; 
45  Tex.  519;  Cooke  v.  Bremond,  Richardson  v.  Cheevalley,  26  La. 
27  Tex.  457,  86  Am.  Dec.  626;  .  Ann.  551;  Burns  v.  Thompson,  39 
Augustine  v.  State,  (Tex.  Civ.  La.  Ann.  Zll,  1  So.  913;  Hanna  v. 
App.),  23  S.  W.  794;  Newman  v.  Pritchard,  6  La.  Ann.  730;  Mar- 
Newman,  (Tex.  Civ.  App.),  85  shall  v.  Mullen,  3  Rob.  (La.)  328; 
S.  W.  635;  Wade  y.  Wade,  New  Orleans  Exchange  v.  Bein,  12 
(Tex.  Civ.  App.),  106  S.  W.  188;  Rob.  (La.)  578. 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1663 

grantee  by  the  husband's  direction,  with  the  intention  of  con- 
verting the  property  conveyed  into  her  separate  estate.* 

§  878.  Different  conclusion  in  Texas. — The  question 
considered  in  the  preceding  section  has  been  before  the  court 
in  Texas,  and  a  conclusion  has  in  that  State  been  reached, 
at  variance  with  the  rule  prevailing  in  California.  In  one  case 
in  that  State,  Mr.  Justice  Moore  said :  "Our  whole  system  of 
marital  rights  is  based  upon  the  fact  that  acquisitions,  either 
of  the  joint  or  separate  labor  or  industry  of  the  husband  or 
wife,  become  common  property,  and,  as  a  general  rule  de- 
ducible  from  this  principle,  all  property  acquired  by  purchase 
or  apparent  onerous  title,  whether  the  conveyance  be  in  the 
name  of  the  husband  or  of  the  wife,  or  in  the  names  of  both, 
is  prima  facie  presumed  to  belong  to  the  community.  It  is 
true  that  it  is  now  a  well-established  and  long-recognized  rule 
of  procedure  in  our  judicial  system,  as  between  the  parties  to 
such  deeds,  their  privies  in  blood,  purchasers  without  value  or 
with  notice,  to  affect  the  legal  import  of  such  deeds  by  parol 
evidence.  But  we  know  of  no  principle  upon  which  such  evi- 
dence can  be  received  for  the  purpose  of  explaining  or  modi- 
fying such  deeds,  after  the  property  has  passed  into  the  hands" 
of  innocent  purchasers,  and  thereby  ingrafting  upon  it  a  trust 
to  their  detriment.  Such  a  doctrine  would  go  far  to  destroy 
the  utility  of  written  evidences  of  title  to  land,  and  the  regis- 
tration of  conveyances  for  the  purpose  of  notice.  .  .  .  The 
statute  authorizes  the  husband,  during  its  continuance,  to  dis- 
pose of  all  community  property.  That  the  title  of  it,  when 
acquired  by  the  community,  was  taken  in  the  name  of  the  wife, 
imposes  no  additional  burden  upon  the  purchaser  of  inquir- 

8  Higgins  V.  Johnson,  20  Tex.  389,  App.  143,  24  S.  W.  533 ;  Weymouth 

70  Am.  Dec.  394;  Parker  v.  Coop,  v.   Sawtelle,   14  Wash.  32,  44  Pac. 

60    Tex.    Ill;    Dunham    v.    Chat-  109;  Peck  v.  Brummagim,  31  Tex. 

ham,  21  Tex.  231,  7Z  Am.  Dec.  228;  440;  Jackson  v.  Torrence,  83  Cat 

Morrison    v.    Clark,    55    Tex.    437;  521. 
Sinsheimer   v.    Kahn,   6   Tex.    Civ. 


1664  THE    LAW    OF    DEEDS.  [CHAP.    XXV, 

ing  as  to  the  equities  of  the  husband  and  wife  in  respect  to 
it."  ^  In  a  later  case  in  the  same  State,  the  court  says  that  the 
case  last  cited  was  decided  "on  the  ground  that  the  purchaser 
from  the  husband,  of  land  acquired  during  marriage,  by  deed 
of  bargain  and  sale  taken  in  the  name  of  the  wife,  is  not 
thereby  put  upon  inquiry  as  to  any  equity  she  may  have  in 
respect  to  it,  but  is  justified  and  protected,  if  he  innocently 
buys  it  as  community  property.  The  decision  was  not  placed 
on  the  ground  that  it  was  inadmissible  to  prove  a  different 
consideration  than  that  recited  in  the  deed,  but  upon  the  broad 
ground  that  the  deed  could  not  be  modified  by  evidence  in  in- 
grafting on  it  a  trust  to  the  detriment  of  an  innocent  pur- 
chaser. It  is  scarcely  necessary  to  say,  that  if  there  were  any 
recitals  in  the  deed  showing  that  the  consideration  was  the 
wife's  separate  estate,  or  that  the  conveyance  as  designed  to  be 
for  her  separate  benefit,  the  rule  would  be  different."^  In  an- 
other case  the  court  referred  to  the  rule  prevailing  in  that 
State,  that  a  purchaser  is  not  compelled  to  inquire  what  equi- 
ties exist  between  husband  and  wife,  where  a  deed  expressing 
a  valuable  consideration  conveys  land  to  a  married  woman, 
and  said  it  could  see  no  reason  why  the  same  principle  should 
•  not  apply  to  sales  made  by  the  husband  after  the  death  of  the 
wife.^  In  Texas,  a  judgment  creditor  who  purchases  at  the 
execution  sale  is  considered  a  bona  Ude  purchaser.  Hence, 
under  the  rule  just  considered,  he  has  no  notice  that  property 
purchased  by  him  at  such  sale  was  the  separate  property  of 
the  wife,  from  the  fact  that  the  deed  was  made  to  her.^ 

§  879.  Purchase  on  credit. — The  circumstances  that 
land  is  bought  on  credit  does  not  affect  its  character  as  sep- 
arate or  community  property.     A  husband  bought  land  on 

^  Cooke  V.  Bremond,  27  Tex.  457,  92.      See    Veramendi    v.    Hutchins, 

86  Am.  Dec.  626.  48  Tex.  531. 

1  Kirk  V.  Navigation  Co.,  49  Tex.  3  Wallace   v.    Campbell,   54   Tex. 
213,  215,  per  Gould,  J.  87. 

2  French   v.    Strumberg,   52   Tex. 


CHAP.    XXV.]       PRINCIPLES    OF    CONSTRUCTION.  1665 

credit  and  subsequently  paid  a  portion  of  the  purchase  price 
with  property  of  his  separate  estate,  and  for  the  purpose  of 
securing  the  remainder,  he  and  his  wife  joined  in  a  note  and 
executed  a  joint  mortgage  on  the  property  purchased.  He 
subsequently  sold  a  part  of  the  land  at  a  price  yielding  him 
a  profit,  and  with  a  part  of  the  proceeds  derived  from  such 
sale,  paid  the  note,  and  with  a  sum  composed  of  the  balance 
and  some  of  his  separate  property,  built  a  house  on  the  part 
of  the  land  remaining  unsold.  Such  land  and  the  building 
thereon,  it  was  decided,  were  to  be  considered  the  separate 
property  of  the  husband.* 

§  880.  Tortious  possession  and  deed  in  consideration 
of  surrender  thereof. — A  party  before  his  marriage  was 
in  possession  of  a  tract  of  land  without  any  right  to  hold  such 
possession.  After  his  marriage  he  executed  a  deed  and  sur- 
rendered possession  of  a  part  of  the  land  to  those  lawfully 
entitled  to  it.  In  consideration  of  this  fact,  the  owners  of  the 
land  conveyed  to  him  a  portion  of  it.  The  court  decided  that 
the  land  thus  acquired  by  the  husband  was  community  prop- 
erty.^ Mr.  Justice  McKinstry  said:  "It  is  true  that  a  pos- 
session of  lands  may,  under  some  circumstances,  constitute 
property.  But  as  between  the  sole  and  exclusive  owner  of  a 
tract,  and  one  who  has  intruded  himself  into  the  possession 
without  right,  how  can  the  latter  be  said  to  have  any  property 
in  the  lands?  The  owners  who  conveyed  to  the  defendant 
their  title  may  have  been  induced  to  make  the  conveyance  to 
save  themselves  the  annoyance  and  expense  of  litigation. 
which,  however,  could  only  have  resulted  in  a  judgment  in 
their  favor.  The  interchange  of  deeds  did  not  necessarily  in- 
volve a  recognition  by  the  owners  of  both  tracts  of  land  of 
any  estate  in  defendant.  The  ability  of  defendant  to  give 
trouble,  and  cause  expense  to  those  who  held  the  Peralta  title. 

*  Martin  v.  Martin,  52  Cal.  235.  ^  Pancoast   v.    Pancoast,   57    CaL 

320. 
Deeds,  Vol.  U.— 105 


1666  THE    LAW    OF    DEEDS.  [CHAP.    XXV. 

by  withholding  from  them  the  possession  for  a  time,,  at  the 
cost  of  a  judgment  against  him  for  restitution  (including  costs 
of  suit,  and  perhaps  mesne  profits),  cannot  be  termed  property 
in  any  legal  sense.  This  is  not  the  case  of  separate  property 
acquired  by  one  of  the  parties  to  the  marriage  contract  prior 
to  the  marriage,  and  which  has  simply  changed  its  form  after 
marriage.  Defendant  had  no  right  in  or  to  the  land  before  his 
marriage;  his  tortious  possession  could  give  him  none  after 
marriage."' 

^Pancoast  v.   Fancoast,  57  Cai      320. 


CHAPTER  XXVI. 


Covenants. 


S  881.    Covenants. 

882.  Construction. 

883.  How  created. 

884.  Covenants  usually  found  in 

deeds. 

885.  Covenant  for  seisin. 

886.  Dififerent  rule. 

887.  Covenant  for  seisin  of  in- 

defeasible  estate. 

888.  By   what    the   covenant    of 

seisin  is  broken. 

889.  Broken  at  once  if  grantor 

has  no  possession. 

890.  By  what  the  covenant  is  not 

broken. 

891.  Seisin  of  grantee. 

892.  Burden  of  proof. 

893.  Covenant  for  right  to  con- 

vey. 

894.  Damages     for     breach     of 

covenants    of    seisin    and 
right   to   convey. 

895.  Proof  of  real  consideration. 

896.  Mitigation  of  damages. 

897.  Knowledge      of      grantor's 

want  of  title. 

898.  Value  of  land  as   measure 

of  damages. 

899.  Undisturbed    possession    of 

grantee. 

900.  Partial  breach. 

901.  Treating   partial   breach   as 

entire. 

902.  Burden  of  proof  on  partial 

breach. 

903.  Power  to   purchase  title. 


§  904. 
905. 

906. 
907. 

908. 
909. 

910. 

911. 
912. 
913. 

914, 


915. 
916. 


917. 
918. 

919. 
920. 

921. 

922. 

923. 

924. 


Keeping  public  street  open 

Covenant  against  encum- 
brances. 

Encumbrance  defined. 

What  are  considered  en- 
cumbrances. 

Water  rights. 

Right  to  use  stairway  in 
common. 

Public  highways  as  en- 
cumbrances. 

Right  of  way  for  a  railroad. 

Right  to  light. 

Purchaser's  knowledge  of 
encumbrance. 

Parol  evidence  to  exclude 
encumbrance  from  cove- 
nant. 

Comments. 

Damages  for  breach  of 
covenant  against  encum- 
brances. 

Special  injury. 

Removal  of  encumbrance  by 
purchase. 

Burden  of  proof. 

Where  encumbrance  cannot 
be  removed. 

Covenant    for   quiet    enjoy- 
ment. 
Not    broken    by    wrongful 

acts  of  others. 
Exercise   of    right   ol   emi- 
nent domain. 
Actual  eviction. 


1667 


1668 


THE  LAW  OF  DEEDS. 


[chap.    XXVI. 


925. 

Purchaser    has    burden    of 
proof  if  he  yields  to  ad- 

§ 940a 

verse  title. 

941. 

926. 

Comments. 

942. 

927. 

Premises    in    possession    of 

another. 

942a 

928. 

Purchase      of      paramount 

title. 

943. 

929. 

Redemption   on  tax   sales. 

930. 

Covenant    for    further    as- 

944. 

surance. 

945. 

931. 

Covenant  of  warranty. 

932. 

Breach  of  covenant  of  war- 

946. 

ranty. 

947. 

933. 

Right  of  joint  possession. 

948. 

934. 

Damages     for     breach     of 
covenants  of  quiet  enjoy- 

949. 

ment  and  of  warranty. 

950. 

935. 

Notice  to  the  covenantor  of 

suit. 

936. 

Comments. 

951. 

937. 

Where  no  notice  is  given  to 
the  covenantor. 

952. 

938. 

Mortgagee  entitled  to  bene- 

953. 

fit  of  covenant. 

954. 

939. 

Interest    and    counsel    fees 

955. 

as  damages. 

956. 

940. 

Covenants  running  with  the 
land. 

957. 

Grantee  bound  by  accept- 
ance of  deed. 

Markethouse. 

Covenants  not  running  with 
the  land. 

Covenant  converted  into 
lien. 

Change  in  character  of 
neighborhood. 

Estoppel  from  covenants. 

The  necessity  for  a  cove- 
nant. 

Statutory    regulation. 

Limitations  on  this  rule. 

Estoppel  of   State. 

Acquisition  of  title  by  trus- 
tee. 

General  covenant  when 
grantor's  interest  only  con- 
veyed. 

Estoppel    of    grantee. 

What  covenants  will  create 
an  estoppel. 

Implied   covenants. 

Restriction  of  covenants. 

Liability  of  covenantor. 

Covenant  to  pay  mortgage. 

Failure  of  title. 


§  881.  Covenants. — Covenants  in  deeds  are  those 
clauses  or  agreements  whereby  one  party  stipulates  that  cer- 
tain facts  are  true,  or  obhgates  himself  to  perform  or  for- 
bear doing  something  to  or  for  the  other.^  "A  covenant  may  be 
defined  to  be  an  agreement  between  two  or  more  parties,  re- 
duced to  writing,  and  executed  by  a  sealing  and  delivery  there- 
of, whereby  some  of  the  parties  named  therein,  or  one  of  them, 
engages  with  the  other  or  others,  or  some  of  them,  therein  also 
named,  that  some  act  hath  or  hath  not  already  been  done,  or 
for   the  performance  or  nonperformance  of   some   specified 


»2    Blackst.    Com.    304;    Bacon,      Abr.  tit.   Evidence. 


CHAP.    XXVI.] 


COVENANTS. 


1669 


duty."^  They  may  be  either  express  or  implied.'  If  land  is 
conveyed  as  bounded  upon  one  or  more  sides  by  a  way,  this  is 
not  a  description  merely,  but  an  implied  covenant  of  the  exist- 
ence of  such  a  way.  "It  probably  entered  much  into  the 
consideration  of  the  purchase,"  said  the  court,  "that  the  lot 
fronted  upon  two  ways  which  would  be  always  kept  open,  and 
indeed,  could  never  be  shut  without  a  right  to  damages  in  the 
grantee  or  his  assigns."* 

§  882.  Construction. — The  rule  in  construing  cove- 
nants is  to  construe  them  most  strictly  against  the  covenantor 
and  most  favorably  to  the  covenantee.^  But  as  a  covenant 
is  a  part  of  a  deed,  it  is  subject  to  the  same  construction  as 
the  deed  itself,  and  should  receive  such  a  construction  as  will 
effectuate  the  actual  intent  of  the  parties.®  A  penalty  annexed 
to  a  covenant  for  its  nonperformance  is,  where  the  primary  in- 
tent is  that  the  covenant  shall  be  performed,  regarded  merely 
as  a  security.     It  is  not  a  substitute  for  the  covenant,  and  it 


2De  Bolle  v.  Pennsylvania  Ins. 
Co.,  4  Whart.  68,  33  Am.  Dec.  38. 
And  see  Randel  v.  Chesapeake  etc. 
Canal  Co.,  1  Har.  (Del.)  233; 
Greenleaf  v.  Allen,  127  Mass.  248; 
Kelley  v.  Palmer,  42  Neb.  423,  60 
N.  W.  924;  Cheney  v.  Straube,  35 
Neb.  521,  53  N.  W.  479.  That 
covenant  need  not  be  under  seal, 
see  Ry.  Co.  v.  McKinney,  124  Ga. 
929,  6  L.R.A.(N.S.)  436,  53  S.  E. 
701.  Equity  will  enforce  against  the 
grantees  of  the  original  covenantor, 
a  covenant  to  use,  or  abstain  from 
using,  the  land  in  such  manner  as 
the  original  covenantee  may  spe- 
cify: Hodge  V  Sloan,  107  N.  Y. 
244,   1   Am.   St.   Rep.  816. 

3  Taylor  v.  Hopper,  62  N.  Y.  649 ; 
Parker  v.  Smith,  17  Mass.  413,  9 
Am.  Dec  157;  Emerson  v.  Wiley, 


10  Pick.  310;  Prey  v.  Johnson,  22 
How.  Pr.  323. 

«  Parker  v.  Smith,  17  Mass.  413, 
9   Am.   Dec.    157. 

5  Warde  v.  Warde,  16  Beav.  103 ; 
Randel  v.  Cheseapeake  etc.  Canal 
Co.,  1  Har.  (Del.)  154;  Hookes  v. 
Swain,  Lev.  102;  Gififord  v.  First 
Pres.  Soc,  56  Barb.  114;  Bevan 
v.  Muir,  53  Wash.  54,  101  Pac.  485. 

6  Schoenberger  v.  Hoy,  40  Pa. 
St.  132;  Watchman  v.  Crook,  5  Gil. 
&  J.  239;  Ludlow  v.  McCrea,  17 
Wend.  228;  Marvin  v.  Stone,  2 
Cowen,  781.  See  Burk  v.  Burk, 
64  Ga.  632.  In  construing  a  cove- 
nant, the  intention  of  the  parties 
should  not  be  gathered  by  reading 
a  single  clause,  but  by  the  whole 
context,  and,  in  case  of  a  doubt 
in  the  meaning,  by  considering  those 


1670  THE  LAW  OF  DEEDS.  [CHAP.    XXVI. 

is  immaterial  that  such  a  covenant  follows  the  habendum 
clause,  while  the  use  in  other  respects  of  the  property  conveyed 
is  restrained  by  other  covenants."'  Reference  in  a  deed,  for 
the  purpose  of  aiding  its  description,  to  another  deed  which 
is  declared  to  be  subject  to  a  mortgage,  does  not  qualify  the 
covenants  in  the  first  deed,  as  such  reference  is  for  the  pur- 
pose of  describing  the  land  and  not  the  title.'  "The  general 
rule  should  be  carefully  observed,  that  covenants  are  to  be 
construed,  as  nearly  as  possible,  by  the  obvious  intentions  of 
the  parties,  which  must  be  gathered  from  the  whole  context 
of  the  instrument,  interpreted  according  to  the  reasonable 
sense  of  the  words."  ^  A  covenant  was  in  this  form:  "The 
said  parties  of  the  first  part,  for  themselves,  heirs,  executors, 
and  administrators,  do  covenant,  grant,  bargain,  and  agree 
to  and  with  the  said  party  of  the  second  part,  his  heirs  and 
assigns,  that  they,  the  said  parties  of  the  first  part,  have  not 
heretofore  done,  committed,  or  wittingly  or  willingly  suffered 
to  be  done  or  committed,  any  act,  matter,  or  thing  whatso- 
ever, whereby  the  premises  hereby  granted,  or  any  part  there- 
of, is,  are,  or  shall  or  may  be  charged,  encumbered  in  title, 
or  estate,  or  otherwise."  The  court  held  it  to  be  a  covenant,  for 
a  breach  of  which,  at  any  time  in  the  future,  damages  might 
be  recovered.^  The  covenant  created  by  the  words,  "grant, 
bargain  and  sell"  is  not  qualified  or  restricted  by  the  haben- 

surrounding  circumstances  that  the  also,  Fowler  v.  Kent,  71  N.  H.  388, 

parties  are  supposed  to  have  con-  52  Atl.  554;  Helmsley  v.  Hotel  Co., 

sidered   when  their  minds   agreed:  63    N.    J.    Eq.    804,    52    Atl.    1132; 

Clarke    v.    Devoe,    124    N.    Y.    120,  George    v.    Robinson,    23   Utah   79, 

21  Am.  St.  Rep.  652.  63  Pac.  819;  Uhl  v.  R.  Co.,  51  W. 

'Phoenix  Ins.  Co.  v.   Continental  Va.    106,    41    S.    E.    340;    Balch    v. 

Ins.  Co.,  87  1^.  Y.  400.    In  this  case  Arnold,   9  Wyo.    17,   59   Pac.   434; 

the  covenant  was  not  to  erect  any  R.   Co.   v.   McKinney,   124  Ga.  929, 

building    adjoining    certain    prem-  6  L.R.A.   (N.S.)  436,  53  S.  E.  701; 

ises    which    depended    for    air    and  Sexauer    v.    Wilson,    136    La.    357, 

light  on  the  land  conveyed.  14    L.R.A. (N.S.)    185,    113    N.    W. 

8  Powers   v.   Patten,  71    Me.   583.  941 ;  Brown  v.  Southerland,  145  N, 

sWadlington    v.    Hill,    18    Miss.  C.    331,   59   S.    E.    114. 

(10  Smedes  &  M.)  560,  562.     See,  .     i  Post  v.  Campau,  42  Mich.  91. 


CHAP.    XXVI. i  COVENANTS.  1671 

dum  clause  as  such  clause  is  not  connected  with  the  granting 
clause.^*  The  law  of  the  state  where  the  land  lies,  and  not  that 
of  the  state  in  which  the  deed  is  executed  and  delivered,  will 
govern.^  The  intention  of  the  parties  as  collected  from  the 
entire  conveyance  and  the  circumstances  attending  its  exe- 
cution is  to  be  carried  out.'  ! 

1 

§  883.     How  created. — A  covenant  may  be  created  by 

any  language  showing  the  intention  of  the  parties  to  bind 
themselves.  No  particular  form  is  required,*  nor  is  it  neces- 
sary to  use  any  particular  word.  A  covenant  may  be  created 
without  using  the  word  "covenant"  in  the  clause  containing 
the  stipulation.^  A  covenant  may  be  contained  in  a  recital  in 
the  deed,  and  be  as  operative  as  though  it  was  expressed  with 
the  other  covenants.^  As  it  is  a  promise,  the  question  is  what 
was  the  understanding  of  the  parties.  A  single  sentence  may 
contain  several  covenants.'  Where  a  circuity  of  action  would 
arise  from  mutual  deeds,  otherwise  making  the  parties  there- 
to liable  to  each  other  upon  similar  covenants  relating  to  the 
same  encumbrance,  they  will  be  construed  as  mutually  satis- 
fying each  other.'  A  covenant  of  title  should  be  taken  in  con- 
nection with  ihe  terms  of  the  conveyance.^  The  covenants 
may  extend  to  equitable  as  well  as  to  legal  claims.^     But  it 

la  Coleman  v.  Qark,  80  Mo.  App.  ^  Bull   v.   Follett,   5   Cowen,    170; 

339.  Kendall    v.    Talbot,    2    Bibb,    614; 

2Dalton    V.    Taliaferro,    101    111.  Randel    v.    Chesapeake    etc.    Canal 

App.  592.  Co..  1  Har.   (Del.)   151. 

3  Atlanta  etc.  Ry.  Co.  v.  McKin-  « Horry  v.  Frost,  10  Rich.  Eq. 
ney,  124  Ga.  929,  6  L.R.A.(N.S.)  109;  De  Forest  v.  Byrne,  1  Hilt. 
436,  53   S.   E.   701.  43. 

4  Marshall  v.  Craig,  1  Bibb,  379,  ^  Johnson  v.  Hollensworth,  48 
4  Am.  Dec.  647 ;  Sampson  v.  Ester-  Mich.  140. 

by,   9    Barn.    &    C    505 ;    Rigby   v.  ^  Silverman    v.    Loomis,    104    111. 

Great  Western  Ry.,  14  Mees.  &  W.  137. 

811;   Jackson   v.    Swart,   20  Johns.  » Hall    v.    Scott    County,    2    Mc- 

85.     Distinguished   from   condition,  Crary  C.  C.  356. 

Cavanagh  v.  Beer  Co.,  136  La.  236,  *  Dugger  v.  Oglesby,  99  111.  405. 

113  N.  W.  856. 


1572  THE    LAW    OF    DEEDS.  [CHAP.    XXVL 

is  held  in  a  deed  conveying  the  legal  title,  that  the  existence 
of  an  equitable  title  in  another  arising  from  a  parol  agree- 
ment for  a  conveyance,  is  not  a  breach  of  any  of  the  usual 
covenants.' 

§  884.  Covenants  usually  found  in  deeds. — It  is  not  in- 
tended to  give  the  practice  in  the  different  States  and  Eng- 
land concerning  the  insertion  of  covenants  in  deeds,  or  to  dis- 
cuss at  length  what  is  understood  by  an  agreement  to  give 
a  deed  with  the  "usual  covenants."  While  in  some  places 
it  is  customary  to  give  a  deed  with  full  covenants,  in  others 
a  demand  for  a  deed  of  this  character  would,  from  the 
infrequency  with  which  a  conveyance  of  this  kind  is  given, 
be  considered  as  implying  a  doubt  concerning  the  validity 
of  the  owner's  title.  The  covenants  in  general  use  may 
be  enumerated  as  those  of  seisin,  right  to  convey,  against  en- 
cumbrances, for  quiet  enjoyment,  further  assurance,  and  war- 
ranty. In  California,  the  Civil  Code  provides  that  "an  agree- 
ment on  the  part  of  the  seller  of  real  property  to  give  the 
usual  covenants  binds  him  to  insert  in  the  grant  covenants  of 
•seisin,'  'quiet  enjoyment,'  'further  assurance,'  'general  war- 
ranty,' and  'against  encumbrances.'  "  ^     "Covenants  for  title 

8  Wilson  V.  Irish,  57  Iowa,  184.  in  the  form  of  a  deed  heretofore 
8  Civil  Cade  Cal.  §  1733.  So  un-  given,  namely,  of  seisin,  the  right 
der  Sec.  1113  Cal.  Civil  Code  the  to  convey,  against  encumbrances, 
word  "grant"  in  a  conveyance  of  and  of  warranty.  In  the  English 
an  estate  of  inheritance  or  fee  deeds  there  is  a  covenant  for  fur- 
simple  implies  a  covenant  that  prior  ther  assurance,  which  is  also  found 
to  the  execution  of  the  conveyance,  in  deeds  in  use  in  some  of  the  Mid- 
the  grantor  had  not  conveyed  the  die  States,  and  a  covenant  of  quiet 
estate  or  any  part  thereof  to  enjoyment.  It  is  said  that  the 
another:  Lyies  v.  Perrin,  134  Cal.  covenant  of  seisin  is  not  in  use 
417,  66  Pac.  472.  Mr.  Washburn,  now  in  England,  being  embraced 
in  his  treatise  on  Real  Property,  in  that  of  a  right  to  convey;  while 
vol.  3  (4th  ed.),  448,  says:  "The  in  the  Western  States,  Pennsyl- 
three  covenants  ordinarily  found  vania,  and  the  Southern  States,  the 
in  deeds  of  conveyance  in  the  covenant  of  warranty  is  not  in- 
Eastern  States  are  those  contained  frequently    the    only    covenant    in- 


CHAP.    XXVI.] 


COVENANTS- 


1673 


are  those  covenants  in  a  deed  conveying  land  which  are  in- 
serted for  the  purpose  of  securing  to  the  grantee  and  the  cove- 
nantee the  benefit  of  the  title  which  the  grantor  and  covenant- 
or professes  to  convey.  Those  in  common  use  are  five  in 
number  in  England — of  seisin,  of  right  to  convey,  for  quiet 
enjoyment,  against  encumbrances,  and  for  further  assurance 
— and  are  held  to  run  with  the  land.     In  the  United  States, 


serted.  In  Iowa,  a  covenant  of 
warranty  is  held  to  embrace  the 
whole  three  above  mentioned.  It 
is  said  that  covenants  for  further 
assurance  are  not  in  general  use  in 
this  country.  In  Ohio,  the  usual 
covenants  are  of  seisin  and  war- 
ranty :"  Citing  Williams  Real  Prop- 
69,  and  Rawle's  note;  Caldwell  v. 
Kirkpatrick,  6  Ala.  60,  41  Am.  Dec. 
36;  Van  Wagner  v.  Van  Nostraiid, 
19  Iowa,  426;  Foote  v.  Burnet,  10 
Ohio,  317,  329,  36  Am.  Dec.  90; 
Armstrong  v.  Darby,  26  Mo.  517; 
Walk.  Am.  Law,  382. 

Mr.  Rawle  says:  "To  a  layman 
it  would  seem  plain  that  if  one 
were  to  undertake  to  convey  an 
estate  in  fee  simple,  which  he  pro- 
fessed to  hold  in  his  own  right, 
and  not  fiduciary,  he  must  himself 
be  seised  of  such  an  estate ;  and 
yet,  until  recently,  it  was  a  common 
practice  of  conveyancing  in  Eng- 
land, for  the  purpose  of  saving  the 
expense  upon  a  resale,  of  levying 
a  fine  whereby  to  bar  the  dower 
of  the  wife,  to  cause  property  upon 
its  purchase  to  be  conveyed  to  such 
uses  as  the  purchaser  should  ap- 
point, and,  in  default  of  appoint- 
ment, to  the  use  of  the  purchaser 
and  his  heirs.  And  it  has  been, 
perhaps,  owing  to  this  custom  that 


the  covenant  for  seisin  has  been 
for  more  than  half  a  century  gen- 
erally omitted  in  England,  and  in 
its  place  substituted  the  covenant 
for  good  right  to  convey.  And 
although,  by  a  recent  act  of  Parlia- 
ment, the  estate  of  the  wife  is  now 
passed,  as  with  us,  by  a  simple 
separate  acknowledgment,  yet  it 
seems  to  be  customary,  in  the  most 
modern  conveyancing,  to  omit  the 
covenant  for  seisin.  The  usual 
covenants,  then,  in  the  case  of  a 
sale,  are  those  of  good  right  to 
convey,  for  quiet  enjoyment,  against 
encumbrances,  and  for  further  as- 
surance. .  .  .  As  to  those  upon 
this  side  of  the  Atlantic,  of  course 
the  local  habit  and  usage  varies 
not  only  more  or  less  widely  be- 
tween the  different  States,  but 
sometimes,  indeed,  between  differ- 
ent parts  of  the  same  State;  but  it 
may,  perhaps,  in  general  be  said 
that  what  are  here  often  called 
'full  covenants'  are  the  covenants 
for  seisin,  for  right  to  convey, 
against  encumbrances,  for  quiet 
enjoyment,  sometimes  for  further 
assurance,  and,  almost  always,  of 
warranty — this  last  often  taking  the 
place  of  the  covenant  for  quiet 
enjoyment:"  Rawle  on  Covenants 
(4th  ed.),  24,  27. 


1674 


THE    LAW    OF    DEEDS. 


[chap.   XXVt. 


tliere  is,  in  addition,  a  covenant  of  warranty,  which  is  now 
more  commonly  used  than  any  of  the  others." 

§  885.  Covenant  for  seisin. — This  covenant  is  gener- 
ally expressed  by  the  clause  "that  the  said  grantor  is  lawfully 
seised,"  or  *'has  a  good  and  sufficient  seisin."  The  word  "sei- 
sin" has  different  significations.  It  may  mean  actual  posses- 
sions, or,  as  it  is  frequently  termed,  "seisin  in  deed."  There 
is  also  a  constructive  seisin,  exemplified  by  the  case  of  a  ten- 
ant for  years,  whose  possession  is  also  the  possession  of  the 
owner  of  the  reversion.  There  is  also  a  seisin  in  law  when 
a  person  not  actually  in  possession  is  deemed  to  be  seised  of 
the  estate,  as  in  the  case  of  an  heir  who  has  not  entered  into 
possession  of  land  acquired  by  descent.  On  account  of  the 
various  meanings  attached  to  the  word  "seisin,"  a  covenant 
of  this  kind  is  not  always  given  the  same  construction.  In 
England,  a  covenant  for  seisin  is  a  covenant  for  the  title,  and 
imports  that  the  grantor  is  seised  of  the  title.^  This  rule  also 
prevails  in  most  of  the  States.^ 


*Bouv.  Law  Diet.  tit.  Covenant. 

6  Cooke  V.  Fowns,  1  Keb.  95 ; 
Gray  v.  Briscoe,  Noy,  142;  Young 
V.  Raincock,  7  Com.  B.  310;  Howell 
V.  Richards,  U  East,  641;  Rawle 
on  Covenants,  56.  In  Wetzell  v. 
Richcreek,  53  Ohio  St.  62,  40  N.  E. 
1004,  the  Supreme  Court  of  Ohio 
says :  "A  covenant  of  seisin  is  de- 
fined to  be  'an  assurance  to  the 
purchaser  that  the  grantor  has  the 
very  estate  in  quantity  and  quality 
which  he  purports  to  convey,'  and 
extends  not  only  to  the  land  itself, 
but  also  to  whatever  is  properly 
appurtenant  to  and  passes  by  the 
conveyance  of  the  land;  and,  though 
the  covenant  is  usually  found  in 
conveyances   of   the   fee,   it   is   ap- 


propriate in  leases  and  assignments 
of    them." 

6  Richardson  v.  Dorr,  5  Vt.  21 ; 
Cathn  V.  Hurlburt,  3  Vt.  407;  Mills 
V.  Catlin,  22  Vt.  106;  Lockwood  v. 
Sturdevant,  6  Conn.  385;  Parker 
V.  Brown,  15  N.  H.  186,  overruling 
Willard  v.  Twitchell.  1  N.  H.  178; 
Breck  v.  Young,  11  N.  H.  491; 
Pringle  v.  Witten,  1  Bay,  256,  1 
Am.  Dec.  612;  Kincaid  v.  Brittain, 
5  Sneed,  119;  Pollard  v.  D wight, 
4  Cranch,  430,  3  L.  ed.  669;  Mc- 
Carty  v.  Leggett,  3  Hill,  134;  Green- 
by  V.  Wilcocks,  2  Johns.  1,  3  Am. 
Dec.  379;  Brandt  v.  Foster,  5 
Clarke,  287;  Mott  v.  Palmer,  1 
Corast.  564;  Morris  v.  Phelps,  5 
Johns.  49,  4  Am.  Dec  323;  Abbott 


CHAP.    XXVI.] 


COVENANTS, 


1675 


§  886.  Different  rule. — But  in  other  States,  as  in 
Massachusetts,  ]\'Iaine,  and,  to  a  certain  extent,  in  Ohio  and 
IlHnois,  a  different  rule  prevails.     In  those  States  a  covenant 


V.  Allen,  14  Johns.  248;  Fitch  v. 
Baldwin  17  Johns.  161 ;  Fitzhugh 
V.  Croghan,  2  Marsh.  J.  J.  430,  19 
Am.  Dec.  140;  Coit  v.  McReynolds, 
2  Rob.  (N.  Y.)  655;  Hastings  v. 
Webber,  2  Vt.  407 ;  Martin  v.  Baker, 

5  Blackf.  232;  Thomas  v.  Perry, 
1  Peters  C.  C.  57 ;  Woods  v.  North, 

6  Humph.  309,  44  Am.  Dec.  312; 
Clapp  V.  Herdman,  25  111.  App.  509; 
Resser  v.  Carney,  52  Minn.  397, 
54  N.  W.  Rep.  89;  Trice  v.  Kay- 
ton,  84  Va.  217,  10  Am.  St.  Rep. 
836,  4  S.  E.  Rep.  Zll  \  Zent  v. 
Picken,  54  Iowa,  535,  6  N.  W.  Rep. 
750;  Moore  v.  Johnston,  W  Ala. 
220.  See  Lindsey  v.  Veasy,  62  Ala. 
421;  Matteson  v.  Vaughn,  38  Mich. 
373;  Fishel  v.  Browning,  145  N.  C. 
71,  58  S.  E.  759.  In  Parker  v. 
Brown,  15  N.  H.  186,  Parker,  C.  J., 
who  delivered  the  opinion  of  the 
court,  said :  "Parties  not  conver- 
sant with  the  law  ordinarily  under- 
stand this  covenant  as  an  assurance 
of  a  title,  and  we  are  of  the  opin- 
ion that  they  have  a  right  so  to 
understand  it.  A  party  who  has 
disseised  another  may  be  treated 
as  seised  of  the  fee  at  the  election 
of  his  disseisee.  He  cannot  be  per- 
mitted to  qualify  his  own  wrong; 
but  this  is  for  the  sake  of  the 
remedy.  A  party  who  remains  in 
the  adverse,  peaceable  possession  of 
lands  for  twenty  years,  as  owner, 
may  thereby  have  evidence  of  a 
seisin  in  fee  during  that  time.  But 
this  is  for  a  quieting  of  possession 
and  barring  State  claims.  It  does 
not  show  that,  before  the  lapse  of 


the  period  prescribed,  he  had  a  law- 
ful seisin  in  fee;  on  the  contrary, 
he  was,  until  the  expiration  of  the 
period,  a  wrongdoer-" 

In  Catlin  v.  Hurlburt,  3  Vt.  407, 
Hutchinson,  C  ^.,  in  delivering  the 
opinion  of  the  court,  said,  with  ref- 
erence to  a  covenant  that  the  grant- 
ors were  seised  of  the  land  in  fee 
simple,  and  had  in  themselves  good 
right  to  bargain  and  sell  the  same 
in  the  manner  mentioned  in  the 
deed :  "These  expressions,  and 
those  of  similar  import,  have  al- 
ways been  considered  in  this  State 
as  amounting  to  a  covenant  of  title. 
They  have  been  inserted  that  they 
should  be  so  considered.  It  is 
argued,  however,  that  this  means 
nothing  more  than  that  the  grantors 
were  in  possession,  claiming  to  hold 
in  fee  simple.  This  alteration  might 
as  well  be  incorporated  by  construc- 
tion in  all  the  covenants  that  de- 
cidedly relate  to  title  in  the  whole 
deed.  That  they  were  well  seised 
in  fee  simple  means  that  they  were 
actually  in  possession,  claiming  to 
hold  in  fee  simple.  That  they  had 
good  right  to  sell  and  convey, 
means  that  they  claim  to  have  such 
right.  That  the  premises  are  free 
from  all  encumbrances,  means  that 
they  claim  that  they  are  thus  free. 
This  is  not  the  most  natural  and 
obvious  meaning  of  the  usual  ex- 
pressions in  deeds  of  warranty. 
They  say  nothing  about  claiming. 
They  speak  of  realities.  Fee  sim- 
ple   denotes    a    permanent    estate." 


1676 


THE    LAW    OF    DEEDS. 


[chap.    XXVI. 


of  good  and  sufficient  seisin  does  not  require  that  the  grant- 
or shall  have  a  perfect  title,  but  it  is  sufficient  if  he  have  an 
actual  seisin  under  a  color  of  title,  no  matter  hov^  tortious  his 
possession  may  be.''  These  latter  decisions  are  probably  based 
upon  the  ground  that  a  covenant  for  seisin  is  simply  an  as- 
surance that  the  grantor  had  such  possession  as  would  render 
his  conveyance  unaffected  by  the  champerty  acts;  that  is,  his 
deed  was  not  that  of  a  disseisee.  "It  is  probable  that  the  cove- 
nant for  seisin  was  anciently  introduced  into  deeds  to  guard 
against  such  an  adverse  possession  as  would  render  the  deed 
void,  as  would  have  been  the  case  at  common  law,  and  is  now 
the  case  by  virtue  of  our  statute,  if  there  be  adverse  posses- 
sion." " 


7  Marston  v.  Hobbs,  2  Mass.  439, 
3  Am.  Dec.  61 ;  Cornell  v.  Jackson, 
3  Cush.  509;  Chapel  v.  Bull,  17 
Mass.  219 ;  Follett  v.  Grant,  5  Allen, 
175;  Wait  v.  Maxwell,  5  Pick.  217, 
16  Am.  Dec.  391;  Raymond  v. 
Raymond,  10  Cush,  134;  Griffin  v. 
Fairbrother  1  Fairf .  59 ;  Wheeler  v. 
Hatch,  3  Fairf.  389;  Baxter  v. 
Bradbury,  20  Me.  260,  Z1  Am.  Dec. 
49;  Boothby  v.  Hathaway  20  Me. 
255;  Cushman  v.  Blanchard,  2 
Greenl.  268,  11  Am.  Dec.  76;  Wil- 
son V.  Widenham,  51  Me.  567; 
Ballard  v.  Child,  34  Me.  355 ;  Back- 
us V.  McCoy,  3  Ohio,  211,  17  Am. 
Dec.  585;  Watts  v.  Parker,  27  111. 
224,    229;    Kirkendall    v.    Mitchell, 

3  McLean,  145 ;  Twambley  v.  Hen- 
ley, 4  Mass.  439;  Bearce  v.  Jack- 
son, 4  Mass.  408;   Scott  v.  Twiss, 

4  Neb.  133;  Montgomery  v.  Reed, 
69  Me.  510.  See  Wetzell  v.  Rich- 
creek,  53  Ohio  St.  62,  40  N.  E.  1004, 
in  which  the  court  says :  "It  has 
long  been  the  law  of  this  State 
that    a    covenant    of    seisin    is    not 


broken,  so  as  to  give  the  covenantee 
a  right  of  action  if  the  covenantor 
had  actual  seisin,  though  not  the 
legal  title,  at  the  time  of  the  con- 
veyance, and  the  former  is  put  in 
possession  under  it,  until  there  has 
been  an  eviction  under  a  paramount 
title."  In  Marston  v.  Hobbs,  supra, 
the  court  say:  "The  defendant,  to 
maintain  the  issue  on  his  part,  was 
obliged  to  prove  his  seisin  when  the 
deed  was  executed.  But  it  was  not 
necessary  to  show  seisin  under  an 
indefeasible  title.  A  seisin  in  fact 
was  sufficient  whether  he  gained 
it  by  his  own  disseisin,  or  whether 
he  was  in  under  a  disseisin.  If  at 
the  time  he  executed  his  deed  he 
had  the  exclusive  possession  of  the 
premises,  claiming  the  same  in  fee 
simple,  by  a  title  adverse  to  the 
owner,  he  was  seised  in  fee  and  had 
a   right  to  convey." 

8  Catlin  V.  Hurlburt,  3  Vt.  407,  per 
Hutchinson,  C.  J.  And  see  Triplett 
V.  Gill,  7  Marsh.  J.  J.  436;  Pierce 
V.  Johnson,  4  Vt.  253. 


CHAP.    XXVI.]  COVENANTS.  1677 

§  887.     Covenant  of  seisin  of  indefeasible  estate. — As 

we  have  seen,  a  covenant  that  the  grantor  is  seised  merely 
without  further  quaHfication,  may  in  some  States  mean  that 
he  has  only  the  actual  possession.  Yet  everywhere  the  rule 
prevails  that  when  the  covenant  is  that  the  grantor  is  seised 
of  an  indefeasible  estate,  the  covenant  is  one  of  title,  and  can 
be  satisfied  only  by  the  possession  on  the  part  of  the  vendor 
of  an  indefeasible  title  to  the  land  conveyed.'  Of  this  cove- 
nant, Mr.  Washburn  says  that  the  effect  of  this  covenant  in  this 
country,  "when  expressly  made,  is  uniformly  held  to  ex- 
tend further  than  that  of  the  ordinary  covenant  of  seisin,  and 
to  cover  an  existing  outstanding  title  adverse  to  that  of  the 
grantor.  It  is  intended  to  meet  the  case  where  one  is  in  pos- 
session and  his  grantee  wishes  for  a  remedy,  if  he  shall  dis- 
cover that  a  third  person  has  a  better  title,  which  for  any  rea- 
son he  does  not  see  fit  to  enforce  by  eviction,  so  as  to  lay  a 
foundation  for  an  action  by  the  grantee  upon  his  covenant 
of  warranty."  * 

§  888.     By  what  the  covenant  of  seisin  is  broken. — A 

covenant  of  seisin  is  broken  if  there  is  no  such  land  in  exist- 
ence as  that  described  in  the  deed  or  purporting  to  have  been 
conveyed.^  Where  a  spring  had  been  previously  conveyed,  it 
was  held,  on  the  ground  that  the  spring  was  a  part  of  the  land 
conveyed,  the  covenant  of  seisin  in  the  deed  had  been  broken.^ 
So  it  is  broken  where  there  is  a  paramount  right  in  another  to 
prevent  the  grantee  from  damming  water  to  a  certain  height, 

9  Raymond  v.  Raymond,  10  Cush.  ^3  Wash.  Real.   Prop.   (4th  ed.) 

134 ;  Collier  v.  Gamble,  10  Mo.  472 ;  456. 

Smith  V.  Strong,  14  Pick.  132;  Gar-  2  Bacon  v.  Lincoln,  4  Cush.  212, 

field  V.  Williams,  2  Vt.  328;  Pres-  50  Am.  Dec.  765;  Basford  v.  Pear- 

cott  V.  Trueman,  4  Mass.  631,  3  Am.  son,  9  Allen,  389,  85  Am.  Dec.  764; 

Dec.  246;  Pierce  v.  Johnson,  4  Vt.  Wheelock  v.   Thayer,    16   Pick.  68. 

253 ;  Abbott  v.  Allen,  14  Johns.  252 ;  »  Clark  v.  Conroe,  38  Vt.  471. 
Bender     v.     Fromberger,     4     Dall. 
436,  439,  1  L.  ed.  898,  899. 


1678  THE   LAW    OF   DEEDS.  [CHAP.    XXVI. 

when  there  is  a  reservation  of  that  right  to  him  in  his  deed.* 
It  is  also  broken  if  the  grantor  possesses  only  an  estate  tail,' 
or  if  an  estate  for  life  is  outstanding.*  If  the  grantor  has 
previously  sold  any  part  of  the  premises  which  is  a  fixture, 
such  as  the  rails  of  a  fence,  buildings,  or  other  structures,  so 
that  the  right  to  remove  them  is  vested  in  another  at  the  time 
of  his  conveyance,  his  covenant  of  seisin  is  broken.'^  The  use 
by  a  railway  company  of  a  parcel  of  land  as  a  right  of  way 
is  not  of  itself  a  breach.  It  must  also  appear  that  the  com- 
pany had  a  valid  right  to  such  use  of  the  land.'  If  the  grantor 
covenants  that  he  is  seised  of  an  undivided  portion  of  certain 
land,  his  covenant  is  broken  if  the  fact  be  that  a  partition 
had  been  made.*  So,  where  there  are  two  tenants,  and  one 
of  them  attempts  to  convey  the  entire  estate,  the  covenant  is 
broken  as  to  one-half  of  the  estate.^  It  is  broken  by  the  ex- 
istence of  a  prior  deed  conveying  to  a  railroad  company  and 
its  assigns  a  strip  of  land  along  the  line  of  its  road  for  the 
purposes  of  the  company,  where  a  deed  is  subsequently  exe- 
cuted conveying  a  parcel  of  land  including  such  strip,  not- 
withstanding the  fact  that  at  the  time  of  the  execution  of  the 
second  deed,  the  strip  of  land  is  occupied  for  the  purposes  of 
a  railroad.^ 

§  889.     Broken  at  once  if  grantor  has  no  possession. — 

Unless  there  is  some  statutory  regulation  to  the  contrary,  the 
rule  is  that  a  covenant  of  seisin,  where  the  grantor  has  no  pos- 

*  Walker  V.  Wilson,  13  Wis.  522;  Iowa,  427.    See  Burke  v.  Nichols,  2 

Traster  V.  Snelson,  29  Ind.  96;  Hall  Keycs,   671;    Abbott   v.   Rowan,   33 

V.  Gale,  14  Wis.  55.  Ark.  593;  Benton  County  v.  Ruth- 

^  Comstock  V.  Comstock,  23  Conn.  erford,  33  Ark.  640. 
352.  8Jera!d  v.   Elly,  51   Iowa,  321. 

6  Wilder     v.     Ireland,     8     Jones  ^  Morrison  v.  McArthur,  43  Me. 

(N.  C.)  90;  Mills  v.  Catlin,  22  Vt.  567. 
106.  1  Downer  v.  Smith,  38  Vt.  464. 

"'West  V.   Stewart,  7  Barr.   122;  2  Messcr    v.    Oestreich,    52    Wis, 

Powers    V.    Dennison,   30   Vt.    752;  684. 
Van  Wagner  v.  Van  Nostrand,  19 


CHAP.    XXVI.] 


COVENANTS. 


1679 


session,  either  actual  or  constructive,  is  broken  as  soon  as  made. 
If  he  has  no  possession,  either  by  himself  or  by  another, 
nothing  is  conveyed  by  his  deed  where  champerty  acts  prevail,' 

§  890.  By  what  the  covenant  is  not  broken. — This 
covenant  is  not  broken  by  the  existence  of  a  highway  over  a 
portion  of  the  land,*  nor  is  it  broken  by  the  existence  of  a  rail- 
road across  the  land,  but  a  covenant  against  encumbrances 
would  be.^  A  judgment,  mortgage,  or  a  right  of  dower  does 
not  operate  as  a  breach  of  the  covenant  of  seisin.'  All  of 
tliese  do  not  affect  the  technical  seisin  of  the  grantee.  He 
has  the  title  by  virtue  of  his  deed,  and  although  these  may  be 
encumbrances  from  which  he  may  be  protected  by  his  cove- 
nant against  encumbrances,  yet  they  do  not  affect  his  pos- 
session of  the  land  or  his  legal  title  thereto.  Thus,  a  mort- 
gage is  a  charge  upon  the  land,  but  until  the  mortgagee  enters, 


3  See  Reasoner  v.  Edmondson,  5 
Ind.  393 ;  Fowler  v.  Poling,  2  Barb. 
303;  Cushman  v.  Blanchard,  2  Me. 
269,  11  Am.  Dec.  76;  Wilson  v. 
Cochran,  46  Pa.  St.  231;  3  Wash. 
Real  Prop.  (4th  ed.)  457.  See,  also, 
Seldon  v.  Jones  Co.,  74  Ark.  348, 
85  S.  W.  778;  Seyfried  v.  Knob- 
launch,  44  Colo.  86,  96  Pac.  993, 
Hayden  v.  Patterson,  39  Colo.  15, 
88  Pac.  437;  Wysong  v.  Nealis,  13 
Ind.  App.  165,  41  N.  E.  388;  Stiir- 
gis  V.  Slocum,  140  la.  25,  116  N. 
W.  128;  Foshay  v.  Shafer,  116  la. 
302,  89  N.  W.  1106;  Bumstead  v. 
Cook,  169  Mass.  410,  48  N.  E.  767, 
61  Am.  St.  Rep.  293;  Foster  v. 
Byrd,  119  Mo.  App.  168,  96  S.  W. 
224;  Fishel  v.  Browning,  145  N.  C. 
71,  58  S.  E.  759;  Fames  v.  Arm- 
strong, 142  N.  C.  506,  55  S.  E.  405, 
146  N.  C.  1,  59  S.  E.  165,  125  Am. 
St.  Rep.  436;  Dahl  v.  Stakke,  12 
N.  D.  325,  96  N.  W.  353 ;  Building 


etc.  Co.  V.  Fray,  96  Va.  559,  32  S. 
E.  58. 

^Whitbeck  v.  Cook,  15  Johns. 
483,  8  Am.  Dec.  272;  Vaughn  v. 
Stuzaker,  16  Ind.  340. 

6  Kellogg  V.  Malin,  50  Mo.  496, 
11  Am.  Rep.  426. 

®  Fitzhugh  V.  Croghan,  2  Marsh. 
J.  J.  430,  19  Am.  Dec.  139;  Sedg- 
wick V.  Hollenbeck,  7  Johns.  376; 
Stanard  v.  Eldridge,  16  Johns.  254; 
Tuite  V.  Miller,  10  Ohio,  383 ;  Mas- 
sey  V.  Craine,  1  McCord,  489;  Lew- 
is V.  Lewis,  5  Rich.  12;  Reasoner  v- 
Edmondson,  5  Ind.  394.  See  Zent 
V.  Picken,  54  Iowa  535.  See,  also, 
as  to  dower,  Building  etc.  Co.  v. 
Fray,  96  Va.  559,  32  S.  E.  58; 
Aiple  V.  Hemmelman,  etc.  Co.  v. 
Spelbrink,  211  Mo.  671,  111  S.  W. 
480;  Fishel  v.  Browning,  145  N.  C. 
71,  58  S.  E.  759;  note  125  Am.  St. 
Rep.  453,  454  citing  text  §§  894,  899. 


1680 


THE   LAW    OF   DEEDS. 


[chap.    XXVI. 


the  covenant  of  seisin  is  not  broken."'  Where  a  deed  conveys 
land,  excepting  "eighty  acres  more  or  less  heretofore  con- 
veyed," to  another,  such  clause  is  descriptive  merely.  It  is  not 
of  the  essence  of  the  contract;  hence,  if  the  portion  previously 
conveyed  exceeds  the  quantity  mentioned  in  the  deed,  the  cove- 
nant of  seisin  by  the  grantor  is  not  broken.'  Where  a  pur- 
chaser from  a  sheriff,  under  a  judgment  of  foreclosure,  con- 
veyed with  a  covenant  of  seisin,  a  subsequent  order  of  the 
court  vacating  the  sale  and  opening  the  judgment  did  not, 
it  was  held,  operate  as  a  breach  of  the  covenant.^  Where  one 
is  in  possession  of  land  under  a  patent,  and  sells  it  with  a 
covenant  of  seisin,  the  fact  that  such  patent  is  voidable,  and 
hence,  his  title  to  the  premises  defeasible,  does  not  render  him 
liable  on  the  covenant.^  So,  also,  the  great  weight  of  author- 
ity holds  that  the  covenant  is  not  broken  where  the  breach 
complained  of  is  based  on  a  misdescription  or  an  incorrect  de- 
scription of  the  land  conveyed.* 

§  891.  Seisin  of  grantee. — Nor  can  advantage  be  taken 
of  this  covenant,  when  the  grantee  is  himself  seised  of 
the  premises.  "It  can  never  be  permitted  to  a  person  to  ac- 
cept a  deed  with  covenants  of  seisin,  and  then  turn  round 
upon  his  grantor  and  allege  that  his  covenant  is  broken,  for, 


■'Reasoner  v.  Edmondson,  5  Ind. 
394.  Where  one  of  the  parties  was 
a  minor,  it  was  held  that  inasmuch 
as  the  title  had  passed  to  the  gran- 
tee, there  could  be  no  breach  of  the 
covenant  until  the  minor  attained 
majority  and  disaffirmed,  or  in 
some  legal  manner  avoided  the  con- 
veyance :  Va»  Nostrand  v.  Wright, 
Laior's  Supp.  to  Hill  &  Denio  (N. 
Y.).  260. 

8  McArthur  v.  Morris,  84  N.  C. 
405. 

9Coit  V.  McReynolds,  2  Rob.  (N. 
Y.)  658.  "Suppose  a  man  conveys 
his  property  to  an  innocent  party  in 


fraud  of  his  creditors,  and  the  court 
should  set  aside  the  deed  (if  a 
court  could  be  found  to  do  such  a 
thing),  would  an  action  lie  by  the 
grantee  for  a  breach  of  the  cove- 
nant of  seisin?     I  think  not" 

1  Pollard  V.  Dwight,  4  Cranch, 
430,  432,  3  L.  ed.  669,  670. 

2  Brown  v.  Southerland,  145  N. 
C.  331,  59  S.  E.  114;  Wiley  v.  Love- 
ley,  46  Mich.  83,  8  N.  W.  716; 
Mann  v.  Pearson,  2  Johns.  (N.  Y.) 
37;  Breck  v.  Young,  11  N.  H.  485. 
But  see  Wilson  v.  Forbes,  13  N.  C 
(2  Dev.)  30. 


CHAP.    XXVI.]  COVENANTS.  1681 

that  at  the  time  he  accepted  the  deed,  he  himself  was  seised 
of  the  premises."  ^     A  subsequent  written  contract  from  a 
former  owner  to  convey  the  legal  estate  to  some  one  else  than 
the  grantee,  is  not  a  breach.*    And  this  covenant  is  not  broken  ^ 
by  the  existence  of  an  easement.^ 


// 


§  892.  Burden  of  proof. — When  an  action  is  brought 
by  a  grantee  against  the  grantor  for  a  breach  of  the  covenant 
of  seisin,  the  defendant  has  the  burden  of  proof  to  show 
that  the  title  he  has  transferred  is  good  and  valid.  This  rule 
is  founded  on  the  reason  that  the  defendant  is  supposed  to 
know  the  state  of  the  title,  and  the  plaintiff  has  the  negative 
until  the  defendant  shows  affirmatively  title  on  his  part.  It 
would  follow  from  this  rule  that  in  the  absence  of  evidence  on 
either  side,  the  plaintiff  would  be  entitled  to  recover.* 

§  893.  Covenant  for  right  to  convey. — In  most  cases 
a  covenant  for  a  right  to  convey  is  the  equivalent  of  a  cove- 
nant of  seisin.  But  there  are  cases  where  this  covenant  must 
take  the  place  of  the  latter.  Wherever  a  conveyance  is  made 
under  a  power,  manifestly  the  trustee  or  donee  cannot  exe- 
cute a  covenant  of  seisin,  but  he  can  give  a  covenant  of  equal 
value  by  inserting  in  his  conveyance  a  covenant  for  good 
right  to  convey.  Then,  again,  in  those  States  where  a  cove- 
nant of  seisin  is  satisfied  by  an  actual  possession,  no  matter 

3  Fitch  V.  Baldwin,  17  Johns.  161.  Patter    v.    Kitchen,    5    Bosw.    566 ; 

*  Seckler    v.    Fox,    51    Mich.   92.  Baker  v.  Hunt,  40  111.  266,  89  Am. 

Evidence   is   inadmissible  to   show,  Dec.  346;   Swafford  v.   Whipple,  3 

in  support  of  such  a  contract,  that  Greene,   G.   261,  264,   54  Am.   Dec. 

it  was  executed  in  compliance  with  498;  Schofield  v.  Iowa  Co.,  32  Iowa, 

a    prior    oral    agreement    with    the  321 ;  Beckman  v.  Henn,  17  Wis.  412; 

grantor  to  provide  for  such  person  Mechlem  v.  Blake,  16  Wis.  102,  82 

in  this  mode:    Seckler  v.   Fox,   51  Am.  Dec.  707;  McLerman  v.  Pren- 

Mich.   92.  tice,  11  Wis.  124,  45  N.  W.  943,  85 

SBlondeau   v.    Sheridan,   81    Mo.  Wis.  427,  55  N.  W.  764;  Evans  v. 

545.  Fulton,  134  Mo.  653,  36  S.  W.  230. 

6  Abbott  v.  Allen,  14  Johns.  253; 
Deeds,  Vol.  U.— 106 


1682 


THE    LAW    OF    DEEDS. 


[chap.    XXVI. 


how  tortious  it  may  be,  without  reference  to  the  title  or  right 
to  possession,  it  is  natural  that  a  purchaser  should  seek  to 
protect  himself  by  this  covenant.  Where  the  covenant  of 
seisin  is  considered  as  warranting  the  title,  as  is  the  case  in 
England  and  most  of  the  States,  the  rules  and  limitations  ap- 
plicable to  a  covenant  of  seisin  also  apply  to  the  covenant  for 
right  to  convey,  which,  for  practical  purposes,  may  be  consid- 
ered its  equivalent.' 

§  894.  Damages  for  breach  of  covenants  of  seisin  and 
good  right  to  convey. — The  measure  of  damages  for  a 
breach  of  these  covenants,  where  the  conveyance  passes  noth- 
ing to  the  grantee,  is  the  consideration  paid  by  the  grantee, 
and  interest  on  such  sum.*     It  has  frequently  been  contended 


'See  Sugden  on  Vendors  (13th 
ed.  462;  Dart  on  Vendors  (4th  ed.), 
499;  Rawle  on  Covenants  (4th  ed.), 
87;  Chapman  v.  Hohnes,  5  Halst. 
20;  Bickford  v.  Page,  2  Mass.  455; 
Dunnica  v.  Sharp,  7  Mo.  71 ;  Will- 
son  V.  Willson,  5  Fost.  (N.  H.) 
234,  57  Am.  Dec.  320. 

8  Smith  V.  Strong,  14  Pick.  128; 
Bickford  v.  Page,  2  Mass.  455 ;  Ela 
V.  Card,  2  N.  H.  175,  9  Am.  Dec. 
46;  Morse  v.  Shattuck,  4  N.  H. 
229,  17  Am.  Dec.  419;  Greenby  v- 
Wilcocks,  2  Johns.  1,  3  Am.  Dec. 
379;  Farmers'  Bank  v.  Glen,  68  N. 
C.  35;  St.  Louis  v.  Bissell,  46  Mo. 
157;  Kimball  v.  Bryant,  25  Minn. 
496;  Sumner  v.  Williams,  8  Mass. 
162,  5  Am.  Dec.  83 ;  Stubbs  v.  Page, 
2  Greenl.  378;  Mitchel  v.  Hasen,  4 
Conn.  495,  10  Am.  Dec.  169 ;  Foster 
V.  Shannon,  41  N.  H.  Z7o;  Phipps 
V.  Tarpley,  31  Miss.  433;  Hodges 
V.  Thayer,  110  Mass.  286;  Overhau- 
ser  V.  McCallister,  10  Ind.  41;  Le- 
land  V.  Stone,  10  Mass.  459;  Mar- 
ston  V.  Hobbs,  2  Mass,  433,  3  Am. 


Dec.  61 ;  Caswell  v.  Wendwell,  4 
Mass.  108;  Wilson  v.  Forbes,  2 
Dev.  30;  Nutting  v.  Herbert,  35 
N.  H.  120;  Willson  v.  Willson,  25 
N.  H.  229,  57  Am.  Dec.  320;  Ster- 
ling V.  Peet,  14  Conn.  245;  Tapley 
V.  Lebaume,  1  Mo.  550;  Campbell 
V.  Johnston,  4  Dana,  182;  Cox  v. 
Strode,  2  Bibb.  277,  5  Am.  Dec.  603 ; 
Foster  v.  Thompson,  41  N.  H.  373 ; 
Martin  v.  Long,  3  Mo.  391 ;  Lawless 
V.  Colier,  19  Mo.  480;  Blake  v. 
Burnham,  29  Vt.  437;  Recohs  v. 
Younglove,  8  Baxt.  385;  Backus  v. 
McCoy,  3  Ohio,  211,  17  Am.  Dec. 
585;  Clark  v.  Parr,  14  Ohio,  118,  45 
Am.  Dec.  529;  Nichols  v.  Walter,  8 
Mass.  243;  Hacker  v.  Blake.  17  Ind. 
97;  Frazier  v.  Supervisors,  74  III. 
291 ;  Blossom  v.  Knox,  3  Finn.  262 ; 
Blackwell  v.  Justices,  2  Blackf .  143 ; 
Logan  V.  Moulder,  1  Ark.  313,  33 
Am.  Dec.  338;  Lacy  v.  Marnan,  37 
Ind.  168;  Kincaid  v.  Brittain,  5 
Sneed,  109;  Kingsbury  v.  Milner, 
69  Ala.  502;  Hacker  v.  Storer,  8 
Me.  228;  Hacker  v.  Blake,  17  Ind 


CHAP.    XXVI.]  COVENANTS.  1683 

that  the  vendee  should  be  entitled  to  recover  the  value  of  the 
land  at  the  time  he  is  deprived  of  it;  in  other  words,  that  he 
should  be  reimbursed  for  the  loss  he  has  actually  sustained. 
But  the  rule  is  settled  as  stated  above.  Chief  Justice  Tilgh- 
man,  in  a  case  where  it  was  urged  that  actual  loss  should  be 
the  criterion  by  which  to  measure  the  damages,  said:  "The 
rule  contended  for  by  the  plaintiff's  counsel,  in  its  utmost  lati- 
tude, applied  to  covenants  like  the  present,  would,  in  many 
instances,  produce  excessive  mischief.  Indeed,  the  counsel 
have,  in  some  measure,  given  up  this  rule  by  confessing  that 
when  buildings  of  magnificence  are  erected  to  gratify  the  lux- 
ury of  the  wealthy,  it  would  be  unreasonable  to  give  damages 
to  the  extent  of  the  loss;  but  the  ruinous  consequences  would 
not  be  less  to  many  persons  who  have  sold  lands  on  which  no 
other  than  useful  buildings  have  been  erected.  Tlie  rise  in 
the  value  of  land,  not  only  in  towns  on  the  sea  coast,  but  in 
the  interior  part  of  the  United  States,  is  such  that  it  can  hard- 
ly be  supposed  that  any  prudent  man  would  undertake  to  an- 
swer the  incalculable  damages  which  might  overwhelm  his 
family,   under  the  construction  contended   for  by  the  plain- 

97;  Bonta  v.  Miller,  1  Litt.  250;  Wolfe,  50  Iowa  286;  J.  M.  Ackley 
Sheets  v.  Andrews,  2  Blackf.  274;  &  Co.  v.  Hunter,  Benn  &  Co.,  154 
Kimball  v.  Bryant,  25  Minn.  496;  Ala.  416,  45  So.  909;  Brooks  v. 
Cummins  v.  Kennedy,  3  Litt.  118,  Mohl,  104  Minn.  404,  116  N.  W. 
14  Am.  Dec.  45 ;  Moore  V.  Franken-  931,  124  Am.  St.  Rep.  629,  17 
field,  25  Minn.  540;  Park  v.  Cheek,  L.R.A.(N.S.)  1195  (citing  text); 
4  Cold.  20;  Rhea  v.  Swain,  122  Ind.  Devine  v.  Lewis,  38  Minn.  24,  35 
272;  Home  V.  Walton,  117  111.  130;  N.  W.  711;  Daggett  v.  Reas,  79 
Semple  v.  Whorton,  68  Wis.  626,  Wis.  60,  48  N.  W.  127;  Wetzell  v. 
32  N.  VV.  Rep.  690;  Daggett  v.  Richcreek,  53  Ohio  St.  62,  40  N.  E. 
Reas,  79  Wis.  60,  48  N.  W.  Rep.  1004.  See,  also,  Curtis  v.  Brannon, 
127;  McLennan  v.  Prentice,  85  Wis.  98  Tenn.  153,  69  L.R.A.  760,  38  S. 
427,  55  N.  W.  Rep.  764 ;  Bowne  v.  W.  1073 ;  Evans  v.  Fulton,  134  Mo. 
Wolcott,  1  N.  Dak.  415,  48  N.  W.  653,  36  S.  W.  230;  Webb  v.  Wheel- 
Rep.  336;  Mercantile  Trust  Co.  v.  er,  80  Neb.  438,  17  L.R.A. (N.S.) 
South  Park  Residence  Co.,  94  Ky.  1178,  114  N.  W.  636;  Conklin  v. 
271,  22  S.  W.  Rep.  314.  See  Price  Hancock,  67  Ohio  St.  455,  66  N.  E. 
V.  Deal,  90  N.  C.  290;  Lanigan  v.  518;  McLennan  v.  Prentice,  85  Wis. 
Kille,     13     Phila.     60;     Bloom     v.  427,  55  N.  W.  764. 


1684  THE   LAW    OF   DEEDS.  [CHAP.    XXVI. 

tiff.  I  have  taken  pains  to  ascertain  the  opinion  of  lawyers  in 
this  State  prior  to  the  American  revolution,  and  I  think  myself 
warranted  in  asserting,  from  the  information  that  I  have  re- 
ceived, that  the  prevailing  opinion  among  the  most  eminent 
counsel  was  that  the  standard  of  damages  was  the  value  of  the 
land  at  the  time  of  making  the  contract."  ^  To  similar  effect 
is  the  language  of  Mr.  Justice  Livingston,  in  one  of  the  early 
New  York  cases:  "To  refund  the  consideration,  even  with 
interest,  may  be  a  very  inadequate  compensation  when  the 
property  is  greatly  enhanced  in  value,  and  when  the  same 
money  might  have  been  laid  out  to  equal  advantage  else- 
where. Yet  to  make  this  increased  value  the  criterion,  where 
there  has  been  no  fraud,  may  also  be  attended  with  injustice, 
if  not  ruin.  A  piece  of  land  is  bought  solely  for  the  purpose 
of  agriculture;  by  some  unforseen  turn  of  fortune,  it  becomes 
the  site  of  a  populous  city,  after  which  an  eviction  takes  place. 
Every  one  must  perceive  the  injustice  of  calling  on  a  bona 
ade  vendor  to  refund  its  present  value,  and  that  few  fortunes 
could  bear  the  demand.  Who,  for  the  sake  of  one  hundred 
pounds,  would  assume  the  hazard  of  repaying  as  many  thou- 
sands, to  which  the  value  of  the  property  might  rise  by  causes 
not  foreseen  by  either  party,  and  which  increase  in  worth  would 
confer  no  right  on  the  grantor  to  demand  a  further  sum  of 
the  grantee?  The  safest  general  rule  in  all  actions  on  con- 
tract is  to  limit  the  recovery  as  much  as  possible  to  an  indem- 
nity for  the  actual  injury  sustained,  without  regard  to  the 
profits  which  the  plaintiff  has  failed  to  make,  unless  it  shall 
clearly  appear  from  the  agreement  that  the  acquisition  of  cer- 
tain profits  depended  on  the  defendant's  punctual  perform- 
ance, and  that  he  had  assumed  to  make  good  such  a  loss 
also."  ^    Where  the  plaintiff  has  had  the  use  of  the  premises, 

^  In    Bender    v.     Fromberger,    4  Pitcher  v.   Livingston,  4  Johns.    1, 

Dall.  442,  1  L.  ed.  901.  4  Am.  Dec.  229;  Swafford  v.  Whip- 

1  In  Staats  v.  Ten  Eyck,  3  Caines,  pie,  3  Greene,  G.  261,  264,  54  Am. 

HI,  2  Am.  Dec.  254.    And  see,  also,  Dec.  498.    In  Pitcher  v.  Livingston, 


CHAP.    XXVI.] 


COVENANTS. 


1685 


no  interest  can  be  recovered  for  the  time  elapsing  before  evic- 
tion, unless  he  has  been  forced  to  pay  mesne  profits  to  the  hold- 


4  Johns.  1,  17,  Chief  Justice  Kent 
said :  "The  case  before  us  then  re- 
solves itself  into  this  question: 
What  is  the  extent  of  the  rule  of 
damages  on  a  breach  of  the  cove- 
nant of  seisin?  Three  points  are 
submitted  by  the  case:  (1)  Wheth- 
er the  plaintiff  can  recover  interest 
on  the  consideration  paid;  (2) 
whether  he  can  recover  for  the  in- 
creased value  of  the  land;  and  (3) 
whether  he  can  recover  for  his 
beneficial  improvements.  The  two 
first  points  were  settled  in  the  case 
of  Staats  V.  Ten  Eyck,  and  need  not 
be  again  examined.  Nothing  has 
been  shown  which  affects  the  ac- 
curacy of  that  decision  on  those 
points,  and  it  deserves  notice  as 
being  of  great  weight  in  support 
of  that  decision,  that  in  the  States 
of  Massachusetts  and  Pennsylvania, 
the  same  rule  of  damages  is  es- 
tablished in  an  action  for  a  breach 
of  the  covenant  of  seisin.  The 
third  point  was  reserved  in  the  con- 
sideration of  the  former  case,  and 
no  opinion  expressed  upon  it.  It, 
therefore,  remains  open  for  discus- 
sion. I  must  own  that  I  never  per- 
ceived any  ground  for  a  distinction 
as  to  the  damages  between  the  rise 
in  the  value  of  the  land  and  the  im- 
provements. There  is  no  reason 
for  such  a  distinction  deducible 
from  the  nature  of  the  covenant  of 
seisin.  Improvements  made  upon 
the  land  were  never  the  subject 
matter  of  the  contract  of  sale  any 
more  than  its  gradual  increase  or 
diminution  in  value.  The  subject 
of  the  contract  was  the  land  as  it 


existed  and  was  worth  when  the 
contract  was  made.  The  purchaser 
may  have  made  the  purchase  under 
the  expectation  of  a  great  rise  in 
the  value  of  the  land,  or  of  great 
improvements  to  be  made  by  the 
application  of  his  wealth  or  his 
labor.  But  such  expectations  must 
have  been  confined  to  one  party 
only,  and  not  have  entered  as  an  in- 
gredient into  the  bargain.  It  was 
the  land,  and  its  price  at  the  time 
of  the  sale,  which  the  parties  had 
in  view,  and  to  that  subject  the 
operation  of  the  contract  ought  to 
be  confined.  The  argument  in  fav- 
or of  the  value  of  the  land  and  the 
improvements  as  they  exist  at  the 
time  of  eviction,  has  generally  ex- 
cepted cases  of  extraordinary  in- 
crease and  of  very  expensive  im- 
provements. It  seems  to  have  been 
admitted,  that  without  such  a  limi- 
tation to  the  doctrine,  it  could  not 
be  endured.  But  this  destroys 
everything  like  a  fixed  rule  on  the 
subject,  and  places  the  question  of 
damages  in  a  most  inconvenient  and 
dangerous  uncertainty.  We  have  a 
striking  illustration  of  this  in  the 
French  law.  The  rule  in  France 
upon  bona  Ude  sales,  according  to 
Pothier,  Traite  du  contrat  de  Vente 
(No.  132-141),  is  to  make  the  sell- 
er, on  eviction  of  the  buyer,  refund 
not  only  the  original  price,  but  the 
increased  value  of  the  land,  and 
the  expense  of  the  meliorations 
made.  He  admits,  however,  that 
the  intention  of  the  parties  is  to  be 
the  rule  in  the  assessment  of  dam- 
ages, and  that  in  the  case  of  an  ira- 


1686 


THE    LAW   OF   DEEDS. 


[chap.    XXVI. 


er  of  the  paramount  title.^    Where  the  possession  of  the  gran- 


mense  augmentation  in  the  price  of 
the  land,  or  in  the  value  of  the  im- 
provements, the  seller  is  to  answer 
only  for  the  moderate  damages 
wliich  the  parties  could  be  supposed 
to  have  anticipated  when  the  con- 
tract was  made.  It  is  plainly  to  be 
perceived  that  there  is  no  certain- 
ty in  such  a  loose  application  of 
the  rule,  and  that  it  leaves  the  dam- 
ages to  an  arbitrary  and  undefined 
discretion,  and  so  it  appears  to  have 
been  understood;  for  in  the  'Insti- 
tution au  Droit  Francais,'  by  M. 
Argou  (liv.  3,  c.  23),  it  is  laid  down 
that  'the  question  of  damages,  be- 
yond the  price  paid,  is  with  them 
very  arbitrary.'  This  is  not  con- 
sonant to  the  genius  of  our  law, 
nor  does  it  recommend  itself  well 
for  our  adoption.  On  a  subject  of 
such  general  concern,  and  of  such 
momentous  interest,  as  the  usual 
covenants  in  a  conveyance  of  land, 
the  standard  for  the  compulation  of 
damages,  upon  a  failure  of  title 
(whatever  that  standard  may  be), 
ought,  at  least,  to  be  'certain  and 
notorious.  The  seller  and  the  pur- 
chaser are  equally  interested  in  hav- 
ing the  rule  fixed.  I  agree  that  the 
contract  is  to  be  construed  accofd- 
ing  to  the  intention  of  the  parties ; 
but  I  consider  that  the  intention  of 
the  covenant  of  seisin,  as  uniformly 
expounded  in  the  English  law,  is 
only  to  indemnify  the  grantee  for 
the  consideration  paid.  This  was 
the  settled  rule  at  common  law, 
upon  the  ancient  warranty,  of 
which  this  covenant  of  seisin  is 
one  of  the  substitutes ;  and  all  the 
reasons  of  policy  which  prevent  the 
extension   of  the   covenant  to  the 


increased  value  of  the  land  apply 
equally,  if  not  more  strongly,  to 
prevent  its  extension  to  improve- 
ments made  by  the  purchaser.  A 
seller  may  be  presumed,  at  all 
times,  able  to  return  the  consider- 
ation which  he  actually  received ; 
but  to  compel  him  to  pay  ^or  exten- 
sive improvements,  of  the  extent  of 
which  he  could  have  made  no  cal- 
culation, and  for  which  he  received 
no  consideration,  may  suddenly 
overwhelm  him  and  his  family  in 
irretrievable  ruin."  See,  also,  Mor- 
ris V.  Matthews,  3  Strob.  199;  Nel- 
son V.  Matthews,  2  Hen.  &  M.  164, 
3  Am.  Dec.  620;  Blessing  v.  Beatty, 
1  Rob.  (Va.)  287;  Bond  v.  Quattle- 
baum,  1  McCord,  584,  10  Am.  Dec. 
702. 

2  Hutchins  v.  Roundtree,  77  Mo. 
500.  And  see  Stebbins  v.  Wolf,  33 
Kan.  765.  In  Curtis  v.  Brannon,  98 
Tenn.  153,  69  L.R.A.  760,  38.  S.  W. 
1073,  the  rule  is  thus  stated :  "The 
recovery  of  the  consideration  and 
interest  is  subject,  however,  to 
abatement  for  rents  during  the  ven- 
dee's possession,  when  it  appears 
that  he  cannot  be  made  liable  there- 
for to  the  owner  of  the  paramount 
title.  A  vendee,  having  enjoyed  the 
advantages  of  possession  at  the  ex- 
pense of  the  vendor,  is  bound,  es- 
pecially in  a  court  of  equity,  to 
account  for  those  advantages  when 
he  demands  repayment  of  the  pur- 
chase money  with  interest.  He  can- 
not, in  such  a  case,  hold  benefits, 
and  at  the  same  time  recover  as  if 
he  had  not  received  them.'" 

3  Boon  V.  McHenry,  55  Iowa.  202. 
Where  there  is  no  actual  loss  the 
measure    of    damages    is    at    least 


CHAP.    XXVT.] 


COVENANTS. 


1687 


tee  has  never  been  disturbed,  only  nominal  damages  can  be 
recovered  for  a  mere  technical  breach,^ 

§  895.  Proof  of  real  consideration. — In  this  country 
the  clause  stating  the  consideration  is  not  conclusive.  A  dif- 
ferent rule  seems  to  prevail  in  England.  Mr.  Mayne  says: 
"Where  the  damages  are  calculated  upon  the  basis  of  the  pur- 
chase money,  its  amount,  if  stated  in  the  deed  of  conveyance, 
cannot  be  contradicted  by  parol  evidence.  Where  any  con- 
sideration is  mentioned,  if  it  is  not  said  also  'and  for  other 
considerations'  you  cannot  enter  into  any  proof  of  any  other; 
the  reason  is,  it  would  be  contrary  to  the  deed;  for  when  the 
deed  says  it  is  in  consideration  of  a  particular  thing,  that  im- 
ports the  whole  consideration,  and  is  negative  to  any  other."  * 
But  in  the  United  States  the  rule  is  that  the  consideration 
clause  is  not  conclusive,  and  that  evidence  is  admissible  to 
show  the  true  consideration.^     It  follows  from  this  rule  that 


nominal  damages.  J.  M.  Ackley  & 
Co.  V.  Hunter,  Benn  &  Co.,  154  Ala. 
416,  45  So.  909.  See  in  this  con- 
nection McLennan  v.  Prentice,  85 
Wis.  427,  55  N.  W.  764;  Hammer- 
slough  V.  Hackett,  48  Kan.  700,  29 
Pac.  1079;  Building  etc.  Co.  v. 
Fray,  96  Va.  559,  32  S.  E.  58;  Lloyd 
V.  Sandusky,  95  III.  App.  593,  aff'd 
203  111.  621,  68  N.  E.  154;  Castor  v 
Dufur,  133  Iowa  535,  111  N.  W. 
43;  Jones  v.  Haseltine,  124  Mo. 
App.  674,  102  S.  W.  40;  Fishel  v. 
Browning,  145  N.  C.  71,  58  S.  E. 
759,  note  125  Am.  St.  Rep.  461,  463, 
citing  text. 

*  Mayne  on  Damages  (2d  ed.) 
148. 

6  Guinotte  v.  Chouteau,  34  Mo. 
154;  Hodges  v.  Thayer,  110  Mass. 
286;  Martin  v.  Gordon,  24  Ga.  533; 
Gavin  V.  Bucklers,  41  Ind.  528; 
Goodspeed  v.    Fuller,   46    Me.    141, 


71  Am.  Dec.  572;  Bullard  v.  Briggs, 
7  Pick.  533,  19  Am.  Dec.  292 ;  Wat- 
son V.  Blaine,  12  Serg.  &  R.  131, 
14  Am.  Dec.  669;  Gulley  v.  Grubbs, 
1  Marsh.  J.  J.  388;  Wade  v.  Mer- 
win,  11  Pick.  280;  Duval  v.  Bibb, 
4  Hen.  &  M.  113,  4  Am.  Dec.  506; 
Clapp  V.  Tirrell,  20  Pick.  247;  Hig- 
don  V.  Thomas,  1  Har.  &  G.  139; 
Hayden  v.  Mentzer,  10  Serg.  &  R. 
329 ;  McCrea  v.  Purmort,  16  Wend. 
460,  30  Am.  Dec.  103;  Wolfe  v. 
Hauver,  1  Gill,  84;  Strawbridge  v. 
Cartledge,  7  Watts.  &  S.  399;  Park 
v.  Cheek,  2  Head.  451 ;  Monahan 
v.  Colgin,  4  Watts,  436;  Dexter  v. 
Manley,  4  Cush.  26 ;  Jack  v.  Dough- 
erty, 3  Watts,  151;  Burbank  v. 
Gould,  15  Me.  118;  Bingham  v. 
Weiderwax,  1  Comst.  509;  Bolton 
v.  Johns,  5  Barr.  145,  47  Am.  Dec. 
404;  Meeker  v.  Meeker,  16  Conn. 
383;  Harvey  v.  Alexander,  1  Rand. 


1688 


THE    LAW    OF    DEEDS. 


[chap.    XXVI, 


either  party  can  prove  what  was  in  fact  the  real  consider- 
ation, when  the  amount  stated  in  the  deed  is  not  the  true  one. 
The  defendant  may  show  that  the  consideration  was  less  than 
that  expressed  in  the  conveyance  for  the  purpose  of  diminish- 
ing the  amount  of  damages.^  So,  on  the  other  hand,  for  the 
purpose  of  augmenting  the  damages,  the  plaintiff  may  show 
that  the  real  consideration  was  larger.'  It  is  permissible  to 
show  that  the  consideration  was  property.  In  such  a  case, 
the  damages  will  be  measured  by  the  value  of  the  property  at 
the  time  of  the  execution  of  the  conveyance,  with  interest.' 
But,  of  course,  it  is  competent  for  the  parties  to  agree  upon 
the  value  of  the  property  as  the  whole  or  a  part  of  the  con- 
sideration. When  such  agreement  is  made,  the  value  so  de- 
termined will  be  the  amount  to  be  recovered,  rather  than  the 
value  which,  at  the  trial,  the  property  might  be  proven  to 
have.® 

§  896.     Mitigation  of  damages. — In  mitigation  of  dam- 
ages, the  defendant  may  show  that  a  certain  parcel  was  in- 


219,  10  Am.  Dec.  519;  Jones  v. 
Ward,  10  Yerg.  160;  Curry  v.  Lyles, 
2  Hill  (S.  C.)  404;  Garrett  v. 
Stuart,  1  McCord,  514;  Wilson  v. 
Shelton,  9  Leigh,  343;  Hartley  v. 
McAnulty,  4  Yeates,  95,  2  Am.  Dec. 
396;  Engleman  v.  Craig,  2  Bush, 
424;  Morse  v.  Shattuck,  4  N.  H. 
229,  17  Am.  Dec.  419;  Barnes  v. 
Learned,  5  N.  H.  264;  Nutting  v. 
Herbert,  35  N.  H.  120;  Belden  v. 
Seymour,  8  Conn.  304,  21  Am. 
Dec.  661 ;  Henderson  v.  Henderson, 
13  Mo.  151;  Bircher  v.  Watkins,  13 
Mo.  521 ;  Hallam  v.  Todhunter,  24 
Iowa,  166;  Harlow  v.  Thomas,  15 
Pick.  66;  Cushing  v.  Rice,  46  Me. 
303,  71  Am.  Dec.  579;  Moore  v. 
McKie,  5  Smedes  &  M.  238;  Wil- 
liamson V.  Test,  24  Iowa,  138; 
Byrnes  v.  Rich,  5  Gray,  518. 


^Harlow  v.  Thomas,  IS  Pick.  70; 
Morse  v.  Shattuck,  4  N.  H.  229,  17 
Am.  Dec.  419;  Williamson  v.  Test, 
24  Iowa,  139;  Bingham  v.  Weider- 
wax,  1  Comst.  514;  Moore  v.  Mc- 
Kie, 5  Smedes  &  M.  238;  Swafford 
V.  Whipple,  3  Greene,  267,  54  Am. 
Dec.  498;  Cox  v.  Henry,  8  Casey, 
19;  Martin  v.  Gordon,  24  Ga.  535. 

''Dexter  v.  Manley,  4  Cush.  26; 
Belden  v.  Seymour,  8  Conn.  304,  21 
Am.  Dec.  661;  Guinotte  V.  Chou- 
teau, 34  Mo.  154. 

8  Hodges  V.  Thayer,  110  Mass. 
286;  Lacey  v.  Marnan,  11  Ind.  168; 
Bonnon's  Estate  v.  Urton,  3  Greene, 
228. 

9  Williamson  v.  Test,  24  Iowa, 
138. 


CHAP,    XXVI.] 


COVENANTS. 


1689 


eluded  in  the  deed  by  mistake,  and  that  he  received  no  part 
of  the  consideration  price  for  it.^  "Whatever  evidence,"  said 
the  court,  in  one  of  these  cases,  "therefore,  tended  to  show  the 
consideration  actually  paid  for  the  premises  before  granted  to 
Merrill,  or  to  show  that  no  consideration  was  paid  for  them, 
for  the  reason  that  it  was  known  and  understood  by  the  par- 
ties that  they  were  not  to  pass  by  the  conveyance,  was  compe- 
tent and  admissible  on  the  question  of  damages,  although  in- 
admissible upon  the  issue  raised  by  the  plea  of  omnia  per- 
formavit.  If  the  jury  or  an  auditor  should  find  that  nothing 
was  paid  for  the  Merrill  place,  although  it  is  clearly  included 
within  the  deed,  but  that  both  parties  knew  and  understood  it 
to  have  been  previously  sold,  and  that,  in  fact,  it  was  included 
in  the  deed  by  mistake,  or  through  inadvertence,  the  plaintiff 
would  be  entitled  to  nominal  damages  only."  ^  It  may  be 
shown  in  mitigation  of  damages  that  the  part  of  the  land  as  to 
which  a  breach  is  alleged  was  included  by  mistake  in  the  de- 
scription, and  that  the  grantee  neither  bought  nor  paid  for 


iLeland  v.  Stone,  10  Mass.  459 
Barnes   v.   Learned,   5    N.   H.   264 
Nutting  V.  Herbert,  35  N.  H.  121 
s.  c.  37  N.  H.  346;  Stewart  v.  Had- 
ley,  55  Mo.  235.     On  mitigation  of 
damages  see,  also,  §  894  ante  note 
2  page  1236, 

2  Nutting  V,  Herbert,  35  N.  H. 
127,  per  Fowler  J.  In  Burke  v. 
Beveridge,  15  Minn.  208,  the  court, 
in  speaking  of  a  breach  of  the  cov- 
enants of  seisin  and  good  right  to 
convey,  and  the  effect  of  the  cov- 
enantor securing  the  paramount 
title  which,  by  virtue  of  another 
covenant  in  the  deed,  passed  to  the 
covenantee,  said:  "Though  by  the 
breach  of  the  covenants  in  question, 
as  thereby  the  title  wholly  fails,  the 
law    restores    to    the    plaintiff    the 


consideration  paid,  with  interest, 
yet,  if  by  virtue  of  another  cove- 
nant in  the  same  deed,  also  intend- 
ed to  secure  to  her  the  subject  mat- 
ter of  the  conveyance,  she  has  ob- 
tained that  seisin,  it  would  be  al- 
together inequitable  that  she  should 
have  that  seisin,  and  also  the  con- 
sideration paid  for  it;  that  is  to 
say,  that  if  there  exists  facts  which 
would  render  inequitable  the  appli- 
cation of  the  rule  that  such  cove- 
nants, if  broken  at  all,  are  broken 
as  soon  as  made,  and  the  purchas- 
er's right  of  action  to  recover  back 
the  consideration  is  then  perfect, 
such  facts  are  to  be  taken  into  con- 
sideration by  the  jury,  not  as  a  bar 
to  the  action,  but  in  mitigation  of 
damages." 


1590  THE    LAW    OF    DEEDS.  [cHAP.    XXVt.    . 

such  part.*  Where  a  uniform  price  per  acre  or  per  front  foot 
has  been  agreed  upon,  the  measure  of  damages  is  determined 
by  such  price  multipHed  by  the  quantity  of  land,  including 
interest,  as  to  which  there  is  a  failure  of  the  covenant.* 

§  897.     Knowledge   of   grantor's   want   of   title. — The 

right  of  recovery  for  a  breach  of  a  covenant  of  seisin,  is  not 
affected  by  the  fact  that  it  was  known  to  one  or  both  of  the 
parties,  at  the  time  the  covenant  was  made,  that  the  grantor 
had  no  title  to  the  land  or  any  part  of  it.^  Bailey,  P.  J.,  in  the 
case  cited,  quoted  with  approval  the  language  of  the  supreme 
court  of  that  State  in  a  former  case :  ^  "Where  a  person  in- 
sists upon  and  obtains  covenants  for  title,  he  has  the  right, 
when  obtained,  to  rely  upon  them  and  enforce  their  perform- 
ance, or  recover  damages  for  their  breach.  The  vendor  is 
under  no  compulsion  to  make  covenants  when  he  sells  land, 
but,  having  done  so,  he  must  keep  them  or  respond  in  damages 
for  injury  sustained  by  their  breach.  Nor  is  it  a  release  or 
discharge  of  the  covenant  to  say  that  both  parties  knew  it  was 
not  true,  or  that  it  would  not  be  performed  when  it  was  made. 
A  person  may  warrant  an  article  to  be  sound  when  both  buyer 
and  seller  know  that  it  is  unsound ;  so  the  seller  may  warrant 
the  quantity  or  quality  of  an  article  he  sells  when  both  parties 
know  that  it  is  not  of  the  quality  or  does  not  contain  the  quan- 
tity warranted.  In  fact  the  reason  the  purchaser  insists  upon 
covenants  for  title;  or  a  warranty  of  quality  or  quantity,  is 
because  he  either  knows  or  fears  that  the  title  is  not  good,  or 
that  the  article  lacks  in  quantity  or  quality." 

8  Spurr  V.  Andrews,  88  Mass.   (6  Brannon,  98  Tenn.  153,  69  L.R.A. 

Allen)    422;    Leland    v.    Stone,    10  760,  38  S.  W.  1073;  Building  Light 

Mass.  459.  etc.  Co.  v.  Fray,  96  Va.  559,  32  S. 

4  Conkiin  v.  Hancock,  67  Ohio  St.  E.    58. 

455,  66  N.  E.  518.     See,  also,  as  to  ^  Wadhams    v.    Innes,    4    Bradw. 

damages:   Egan  v.   Martin,  71   Mo.  (111.  App.)  642,  646. 

App.  60;  Haynie  V.  American  Trust  6  Beach   v.    Miller,   51   111.   211,   2 

Inv.   Co.,  39   S.  W.  860 ;   Curtis  v.  Am.    Rep.    290. 


CHAP.    XXVI.]  COVENANTS.  1691 

§  898.     Value  of  land  as  measure  of  damages. — As  has 

been  pointed  out,  the  measure  of  damages  in  most  cases  is 
the  consideration  paid  with  interest.  But  there  may  be  cases 
where  to  apply  such  a  rule  would  be  to  deny  to  the  covenan- 
tee all  relief.  No  consideration  whatever  may  be  mentioned 
in  the  deed,  and  it  may  be  impossible  to  learn  the  true  con- 
sideration. The  consideration  may  have  been  paid  by  a  third, 
person  at  whose  request  the  covenants  in  the  deed  may  have 
been  inserted.  In  cases  of  this  character,  the  circumstances 
of  each  particular  case  must  control  the  rule  as  to  damages, 
and,  generally,  the  value  of  the  land  at  the  time  the  convey- 
ance is  made,  with  interest,  will  form  the  basis  of  damages.' 
An  agreement  was  made  between  a  debtor  and  a  creditor, 
whereby  the  latter  agreed  to  receive  a  certain  lot  of  land,  in 
full  satisfaction  of  the  debt.  The  former  agreed  with  another 
for  the  purchase  of  the  land,  and  requested  him  to  make  the 
deed  directly  to  the  creditor  with  warranty.  This  was  done, 
the  deed  expressing  a  large  nominal  consideration.  It  was 
delivered  by  the  debtor  to  the  creditor  in  satisfaction  of  the 
debt.  In  a  suit  upon  the  covenant,  Mr.  Chief  Justice  Shaw 
said :  "Then  what  was  the  actual  consideration  as  between 
the  plaintiff  and  defendant?  It  is  very  clear  that  the  consider- 
ation expressed  in  the  deed  is  no  criterion ;  the  actual  consider- 
ation may  be  always  inquired  into  by  evidence  aliunde.  Nor 
is  it  the  sum  agreed  to  be  paid  to  the  defendant  by  Leigh  ton 
[the  debtor]  ;  to  that  the  plaintiff  was  a  stranger.  Nor  is  it 
the  nominal  amount  of  the  note  which  the  plaintiff  agreed 
to  surrender  and  release  to  Leighton,  as  the  consideration  to 
be  by  him  paid  for  the  land.  That  may  have  been  a  security 
of  little  value;  no  evidence  of  its  value  was  given;  and,  be- 
sides, to  that  part  of  the  transaction  the  defendant  was  a 
stranger.     It  seems,  therefore,  to  be  a  case  to  which  the  ordi- 

'  Smith  V.  Strong,   14  Pick.   128;       See  Staples  v.  Dean,  114  Mass.  125; 
Byrnes     v.     Rich,     5     Gray,     518;       Mason  v.  Kellogg,  38  Mich.  132. 
Hodges  V.  Thayer,  110  Mass.  286. 


1692  THE    LAW    OF    DEEDS.  [CHAP.    XXVI. 

nary  general  rule  cannot  apply,  and  which  must  be  deter- 
mined according  to  its  particular  circumstances  upon  the  gen- 
eral principles  applicable  to  breaches  of  contract;  the  party 
shall  recover  a  sum  in  damages  which  will  be  a  compensa- 
tion for  his  loss.  ...  If  the  failure  of  the  title  extended  to 
the  whole  of  the  land,  then  the  entire  value  of  the  land  is  to 
be  the  measure;  if  to  a  part  only,  and  the  plaintiff  does  not 
tender  a  reconveyance  of  the  part  upon  which  the  conveyance 
operated  to  give  title  to  the  grantee,  then  the  value  of  the 
part,  the  title  to  which  failed,  with  interest,  will  be  taken  as 
the  measure  of  damages."  *  When  damages  have  been  recov- 
ered for  a  total  breach  of  these  covenants,  such  fact  is  a  bar 
to  any  further  recovery.^  When  the  covenantee  has  never 
been  in  possession  and  is  unable  to  obtain  it,  the  action  upon 
the  covenant  is,  in  effect,  an  action  for  money  had  and  re- 
ceived, on  account  of  failure  of  consideration.^ 

§  899.  Undisturbed  possession  of  grantee. — If  there 
has  been  no  disturbance  of  the  possession  of  the  grantee  for 
a  sufficient  length  of  time  to  enable  him  to  acquire  title  by 
the  statute  of  limitations,  a  recovery  on  the  covenant  should 
be  for  no  more  than  nominal  damages.^  The  consideration 
money  and  interest  are  the  measure  of  damages  when  the 
grantee  acquires  nothing  by  the  conveyance.  But  when  he 
acquires  anything  by  his  deed,  this  must  be  considered  in  esti- 
mating the  damages.    "The  weight  of  American  authority  has 

8  In  Byrnes  v.  Rich,  5  Gray,  518.  Sneed,  119;  Porter  v.  Hill,  9  Mass. 

9Ra\vle  on  Covenants    (4th  ed.)  34,  6  Am.  Dec.  22. 

263,  and  note;  Outram  v.  Morwood,  ^  Baker  v.  Harris,  9  Ad.  &  E.  532. 

3   East,   346;    Nosier   v.    Hunt,    18  8  Somerville      v.      Hamilton,      4 

Iowa,  212;  Duchess  of   Kingston's  Wheat.  230,  4  L.  ed.  558;  Wilson  v. 

Case,  2  Smith's  Leading  Cases  (7th  Forbes,  2  Dev.  30;  Pate  v.  Mitchell, 

ed.),  778;   Markham  v.   Middleton,  23  Ark.  591,  79  Am.  Dec.  114;  Gar- 

2  Strob.   1259;  Donnell  v.  Thomp-  field  v.  Williams,  2  Vt.  328;  Cowan 

son,   10  Me.  174,  25  Am.  Dec.  216.  v.  Silliman,  4  Dev.  47.    See  Hencke 

And   see   Parker  v.   Brown,    15   N.  v.  Johnson,  62  Iowa,  555. 
H.     176;     Kincaid     v.     Brittain,    S 


CHAP.    XXVI.]  COVENANTS.  1693 

determined  that  the  covenant  for  seisin  is  broken,  if  broken 
at  all,  so  soon  as  it  is  made,  and  thereby  the  immediate  right 
of  action  accrues  to  him  who  has  received  it.  But  in  such 
case,  the  grantee  is  not  entitled,  as  matter  of  course,  to  recover 
back  the  consideration  money.  The  damages  to  be  recovered 
are  measured  by  the  actual  loss  at  that  time  sustained.  If  the 
purchaser  has  bought  in  the  adverse  right,  the  measure  of  his 
damages  is  the  sum  paid.  If  he  has  been  actually  deprived  of 
the  whole  subject  of  his  bargain,  or  of  a  part  of  it,  they  are 
measured  by  the  whole  consideration  money  in  the  one  case, 
and  a  corresponding  part  of  it  in  the  other."  '  But  the  mere 
fact  that  the  covenantee  is  in  the  undisturbed  possession  of 
the  premises,  where  his  possession  has  not  ripened  into  title,  is 
no  defense.* 

§  900.  Partial  breach. — Where  the  covenant  is  for  a 
fee  simple,  and  the  estate  is  subject  to  a  life  estate,  recovery 
may  be  had  for  the  value  of  the  less  estate.*    If,  after  these 

*  Lawless  v.  Collier,  19  Mo.  480.  the  covenant  is  considered  as  run- 
in  Hartford  and  Salisbury  Ore  Co.  ning  with  the  land,  that  if  the  cov- 
V.  Miller,  41  Conn.  112,  the  court  enantee  has  not  been  compelled  to 
says :  "But  if  the  party  takes  any-  yield  possession  to  a  paramount 
thing  by  his  deed,  directly  or  indi-  title,  he  can  only  recover  nominal 
rectly,  by  its  own  force,  or  by  its  damages.  He  is  not  permitted  to 
co-operation  with  other  instruments  give  up  possession  and  seek  sub- 
or  other  circumstances,  whether  it  stantial  damages :  Cockrell  v.  Proc- 
be  the  entire  thing  purchased  or  a  tor,  65  Mo.  41.  And  see  Hencke  v. 
part  of  it,  its  value  must  be  consid-  Johnson,  62  Iowa,  555. 

ered  in  considering  the  damages."  ^  Guthrie  v.  Pugsley,  12  Johns. 
See  Tanner  v.  Livingston,  12  Wend.  126;  Recohs  v.  Younglove,  8  Baxt. 
83;  Kimball  v.  Bryant,  25  Minn.  385;  Tanner  v.  Livingston,  12  Wend. 
496;  Terry  v.  Drabenstadt,  68  Pa.  83.  See  Rickert  v.  Snyder,  10 
St.  400;  Guthrie  v.  Pugsley,  12  Wend.  416;  Blanchard  v.  Blanch- 
Johns.  126;  Mills  v.  Catlin,  22  Vt.  ard,  48  Me.  174.  Life  tables  may 
98;  Cockrell  v.  Proctor,  65  Mo.  41 ;  be  used  for  the  purpose  of  comput- 
Lockwood  V.  Sturtevant,  6  Conn.  ing  the  value  of  the  life  estate: 
Z72.  Mills  v.  Catlin,  22  Vt.  98;  Donald - 

*  Akerly  y.  Vilas,  21  Wis.  109.  son  v.  Mississippi  etc.  Ry.  Co.,  18 
But  in  Missouri,  it  is  held,  where  Iowa,  280,  87  Am.  Dec  391.    The 


1694 


THE   LAW    OF   DEEDS. 


[chap,    XXVI. 


covenants  are  broken,  and  before  the  covenantee  commences 
action,  the  paramount  title  is  acquired  by  the  covenantor, 
which,  by  the  operation  of  other  covenants,  is  transferred  to 
the  covenantee,  the  damages  may  be  mitigated  or  reduced  to 
a  nominal  amount  by  this  fact.^  If  the  estate  which  the  grant- 
or had  and  by  deed  transferred  was  a  copyhold,  and  he  had 
covenanted  for  a  seisin  in  fee,  there  is  a  breach  of  the  cove- 
nant, and  the  difference  in  value  between  a  fee  simple  and  a 
copyhold  estate  is  the  measure  of  damages.'  When  there  has 
been  a  partial  breach  by  a  failure  of  title  to  part  of  the  land 
conveyed,  either  party  is  entitled  to  show,  for  the  purpose  of 
determining  the  damages,  the  value  which  that  part,  to  which 
title  has  failed,  relatively  bears  to  the  whole.®  "The  law  will 
apportion  the  damages  to  the  measure  of  value  between  the 
land  lost  and  the  land  preserved."  '  In  a  case  in  Massachu- 
setts, it  was  contended  that  the  proper  method  of  determining 


measure  of  damages,  where  there 
is  an  eviction  of  a  definite  portion 
of  the  premises,  is  a  proportional 
amount  of  the  purchase  money  with 
interest :  Wetzell  v.  Richcreek,  S3 
Ohio  St.  62,  40  N.  E.  1004.  See, 
also,  Conklin  v.  Hancock,  67  Ohio 
St.  455,  66  N.  E.  518;  Webb  v. 
Wheeler,  80  Neb.  438,  17  L.R.A. 
(N.S.)  1178,  114  N.  W.  636;  Hay- 
nie  V.  Inv.  Co.  (Tenn.)  39  S.  W. 
860;  Bolinger  v.  Brake,  4  Kan.  App. 
180,  45  Pac.  950. 

6  Kimball  v.  Bryant,  25  Minn.  496, 
500;  Baxter  v.  Bradbury,  20  Me. 
260,  Z1  Am.  Dec.  49;  Burke  v. 
Beveridge,  15  Minn.  205;  Noonan 
V.  Isley,  21  Wis.  138;  Knoules  v. 
Kennedy,  82  Pa.  St.  445;  McCarty 
V.  Leggett,  3  Hill,  134 ;  King  v.  Gil- 
son,  Z2  111.  348,  83  Am.  Dec.  269, 
See  Tucker  v.  Clark,  2  Sand.  Ch. 
96;  Boulter  v.  Hamilton,  15  Up. 
Can.  C   P.   125;   Blanchard  v.  El- 


lis, 1  Gray,  195,  61  Am.  Dec.  417; 
Mclnnis  v.  Lyman,  61  Wis.  191. 

'  Gray  v.  Briscoe,  Noy,  142.  See 
Wace  V.  Brickerton,  3  De  Gex  &  S. 
751. 

•  Morris  v.  Phelps,  5  Johns.  49, 
56,  4  Am.  Dec.  323.  See  Wallace 
V.  Talbot,  1  McCord,  467 ;  Griffin  v. 
Reynolds,  17  How.  611,  15  L.  ed. 
230;  Dickens  v.  Shepperd,  3  Murph. 
526;  Cornell  v.  Jackson,  3  Cush. 
506,  510. 

^  Morris  v.  Phelps,  supra.  See, 
also,  Blanchard  v.  Hoxie,  34  Me. 
376;  Blanchard  v.  Blanchard,  48 
Me.  177;  Morrison  v.  McArthur,  43 
Me.  567;  Bryan  v.  Smallwood,  4 
Mar.  &  McH.  4S3 ;  Hubbard  v.  Nor- 
ton, 10  Conn.  435;  Rickert  v.  Sny- 
der, 9  Wend.  416;  McNear  v.  Mc- 
Comber,  18  Iowa,  14;  Nyce  v. 
Obertz,  17  Ohio  St.  76;  Phillips  v. 
Reichert,  17  Ind.  120,  79  Am.  Dec, 
463;  Hoot  v.  Spade,  20  Ind.  326. 


CHAP.    XXVI.]  COVENANTS.  1695 

damages  was  by  ascertaining  the  proportion  in  quantity  which 
the  part,  to  which  there  had  been  a  faihire  of  title,  had  to  the 
remainder.  But  the  court  rephed :  "This  is  not  a  just  rule, 
for  the  value  may  be  unequal.  The  true  and  just  rule  is,  that 
the  proportional  value,  and  not  the  quantity  of  the  several 
parts  of  the  land,  should  be  the  measure  of  damages."  ^  The 
grantors  had  the  fee  in  two-sixths  of  an  estate  and  a  life  es- 
tate in  the  remaining  four-sixths.  Upon  a  breach  of  the  cove- 
nant, it  was  held  that  to  measure  the  damages,  the  value  of 
the  life  estate  should  be  deducted  from  four-sixths  of  the  pur- 
chase price,  and  that  as  there  was  no  one  to  call  upon  the  gran- 
tee for  the  mesne  profits,  no  interest  should  be  allowed.^  If 
a  constructJ3ie  eviction  is  founded  on  the  existence  of  a  tax 
deed  which  a  third  person  held  at  the  time  of  the  execution  of 
the  deed,  the  grantor  may  contest  the  validity  of  the  tax  deed 
in  an  action  for  a  breach  of  the  covenant.  The  right  of  the 
grantor  to  contest  the  validity  of  the  tax  deed  is  not  affected 
by  the  fact  that  the  statute  of  limitations  has  since  run  in 
favor  of  the  tax  deed.  The  rights  of  the  respective  parties  are 
to  be  determined  by  the  conditions  as  they  existed  at  the  time 
at  which  the  conveyance  was  executed.^     In  Wisconsin  the 

1  Cornell  v.  Jackson,  3  Cush.  506,  Tone  v.  Wilson,  81  111.  529 ;  Ela  v. 
510.  Card,  2  N.  H.  175,  9  Am.  Dec.  46; 

2  Guthrie  v.  Pugsley,  12  Johns.  Scantlin  v.  Allison,  12  Kan.  851. 
126.  "There  is  no  settled  rule  of  ^  Mclnnis  v.  Lj'nian,  62  Wis.  191J 
law,"  said  the  court,  "to  ascertain  When  title  fails  as  to  a  part  of  thei 
the  damages  in  such  a  case,  without  land  conveyed,  damages  should  be' 
having  a  jury  to  assess  them,  as  awarded  in  such  proportion  to  the 
they  must  depend  principally  upon  whole  consideration  as  the  part 
the  value  of  the  estate  during  the  bears  to  the  whole  tract :  Beaup- 
lives  of  the  defendants,  which  must  land  v.  McKeen,  28  Pa.  St.  124,  70 
be  deducted  from  four-sixths  of  Am.  Dec.  115;  Messer  v.  Ostreich, 
the  consideration  money.  Nor  52  Wis.  684;  Remple  v.  Whorton, 
ought  interest  to  be  allowed  during  68  Wis.  626,  32  N.  W.  Rep.  690; 
their  lives,  for  no  one,  during  that  Larson  v.  Cook,  85  Wis.  564,  55 
time,  will  have  a  right  to  turn  the  N.  W.  Rep.  703 ;  McLennan  v. 
plaintiff  out  of  possession,  or  call  Prentice,  85  Wis.  427,  55  N.  W. 
on  him  for  the  mesne  profits."  See,  Rep.  764;  Hunt  v.  Raplee,  44  Hun, 
also.  Downer  v.  Smith,  38  Vt  464;  149;  Furniss  v.  Ferguson,  15  N.  Y, 


1696 


THE    LAW    OF    DEEDS. 


[chap.    XXVI. 


measure  of  damages  has  been  stated  as  being  such  fractional 
part  of  the  whole  consideration  paid  as  the  value,  at  the  time 
of  the  purchase,  of  the  part  to  which  title  fails  bears  to  the 
whole  of  the  lots  purchased,  and  interest  during  the  period  of 
eviction  not  exceeding  six  years.* 

§  901.  Treating  partial  failure  as  entire. — Where  there 
is  an  entire  failure  there  can  be  a  total  recovery,  and  where 
there  has  been  a  partial  failure  there  can  be  a  partial  recovery. 
But  can  a  party  treat  a  partial  failure  as  entire  and  re- 
cover the  entire  purchase  money,  or  must  he  retain  whatever 
title  was  acquired,  thus  permitting  him  to  recover  only  the  dif- 
ference in  value  between  that  title  and  the  entire  estate?    The 


437;  Hymes  v.  Esty,  133  N.  Y.  342, 
31  N.  E.  Rep.  105 ;  Guthrie  v.  Pugs- 
ley,  12  Johns.  126;  Staats  v.  Ten 
Eyck,  3  Caines,  111,  2  Am.  Dec. 
254;  Morris  v.  Phelps,  5  Johns.  49, 
4  Am.  Dec.  323;  Tone  v.  Wilson, 
81  111.  529;  Major  v.  Dunnavant, 
25  111.  262;  Wadhams  v.  Innes,  4 
111.  App.  642;  Weber  v.  Anderson, 
73  111.  439;  Clapp  v.  Herdman,  25 
111.  App.  509 ;  Threkeld  v.  Fitzhugh, 
2  Leigh,  451 ;  Clarke  v.  Hardgrove, 
7  Gratt.  399 ;  Conrad  v.  Effinger,  87 
Va.  59,  24  Am.  St.  Rep.  646,  12 
S.  E.  Rep.  2 ;  Click  v.  Green,  1)  Va. 
827;  Ela  v.  Card,  2  N.  H.  175,  9 
Am.  Dec.  46;  Winnipiseogee  Paper 
Co.  V.  Eaton,  65  N.  H.  13,  18  Atl. 
Rep.  171;  Parker  v.  Brown,  15  N. 
H.  176;  Partridge  v.  Hatch,  18  N. 
H.  494;  Blanchard  v.  Blanchard,  48 
Me.  174;  Blanchard  v.  Ho.xie,  34 
Me.  376;  Koestenbader  v.  Peirce, 
41  Iowa,  204;  Hoot  v.  Spade,  20 
Ind.  326;  McDunn  v.  Des  Moines, 
39  Iowa,  286 ;  Mische  v.  Baughn,  52 
Iowa,  528;  Long  v.  Sinclair,  40 
Mich.   569;    Scheible  v.    Slagle,   89 


Ind.  323 ;  Wright  v.  Nipple,  92  Ind. 
310;  Price  v.  Deal,  90  N.  C.  290; 
Saunders  v.  Flaniken,  11  Tex.  662, 
14  S.  W.  Rep.  236;  White  v.  Hol- 
ley,  3  Tex.  Civ.  App.  590,  24  S.  W. 
Rep.  831 ;  Gass  v.  Sanger  (Tex. 
Civ.  App.),  30  S.  W.  Rep.  502; 
Weeks  v.  Barton  (Tex.  Civ.  App.), 
31  S.  W.  Rep.  1071 ;  Keesey  v.  Old, 
82  Tex.  22,  17  S.  W.  Rep.  928; 
Stark  V.  Olney,  3  Or.  88;  Crawford 
v.  Crawford,  1  Bailey,  128,  19  Am. 
Dec.  660;  Lewis  v.  Lewis,  5  Rich. 
12;  Wallace  v.  Talbot,  1  McCord, 
466;  Jeter  v.  Glenn,  9  Rich.  374; 
Aiken  v.  McDonald,  43  S.  C.  29,  20 
S.  E.  Rep.  176;  Hunt  v.  Nolen,  46 
S.  C.  356,  24  S.  E.  Rep.  310;  Nyce 
v.  Obertz,  17  Ohio,  71 ;  Moses  v. 
Wallace,  7  Lea,  413;  Whitzman  v. 
Hirsh,  87  Tenn.  513;  Mette  v.  Dow, 
9  Lea,  93 ;  Downer  v.  Smith,  38  Vt. 
464;  Butcher  v.  Peterson,  26  W. 
Va.  447,  53  Am.  Rep.  89. 

*  McLennan  v.  Prentice,  85  Wis. 
427,  55  N.  W.  764;  Semple  v. 
Wharton,  68  Wis.  626,  32  N.  W. 
690. 


CHAP.    XXVI.]  COVENANTS.  1697 

question  arose  in  Tennessee,  where  a  deed  containing  cove- 
nants of  seisin  and  warranty  purported  to  convey  an  absolute 
estate  to  the  entire  land  in  fee,  but  in  fact  it  conveyed  only  a 
life  estate.  The  court  held  that  the  measure  of  damages  was 
the  difference  between  the  value  of  the  life  estate  and  the  fee„ 
and  that  as  to  the  life  estate  the  conveyance  remained  in 
force.*^  To  the  argument  that  a  purchaser  ought  not  to  be 
compelled  to  accept  a  title  to  a  part  or  an  estate  for  life, 
when  the  inducement  to  the  purchase  was  the  entire  estate,  the 
court  said  the  reply  was  that  these  "would  be  important  con- 
siderations upon  an  application  to  a  court  of  equity  for  a  de- 
cision, but  if  the  purchaser  choose  to  sue  upon  the  covenant 
at  law  without  a  rescission  or  offer  to  rescind,  he  can  only  re- 
cover to  the  extent  of  the  breach,  the  contract  of  sale  and  con- 
veyance remaining  in  force  as  to  the  part  to  which  the  title 
does  not  fail."  * 

§  902.  Burden  of  proof  on  partial  breach. — Where  a 
covenantee  sues  a  remote  grantor  for  failure  of  title  to  a  por- 
tion of  the  land  which  the  covenantee  had  purchased  from  an 
intermediate  grantor,  he  can  recover,  of  course,  a  proportion- 
ate share  of  the  consideration  received  for  the  deed.  But  as 
to  the  relative  value  of  the  portion  purchased  by  the  cove- 
nantee bringing  suit,  he  has  the  burden  of  proof.  He  is  the 
one  seeking  relief,  and  he  must  establish  all  the  facts  showing 
that  he  is  entitled  to  relief,  and  to  what  extent  it  should  be 
given.' 

§  903.  Power  to  purchase  title. — The  fact  that  the 
purchaser  might  have  removed  the  defect  or  bought  in  the 
outstanding  title,  can  have  no  effect  upon  his  claim  for  dam- 
ages for  a  breach  of  the  covenants.  "It  is  true,"  said  the 
court  in  one  case,  "the  grantee,  while  the  prior  mortgage  re- 

flRecohs   V.   Younglove,   supra.  6  Recohs  v.  Younglove,  supra. 

385.  "^  Mische  v.  Baughn,  52  Iowa,  528. 

Deeds,  Vol.  H.— 107 


1698 


THE    LAW    OF    DEEDS. 


[chap.    XXVI. 


mained  only  an  encumbrance,  might  have  discharged  it  if  he 
had  possessed  the  pecuniary  abiHty,  and  thus  saved  himself 
from  eviction,  but  then  so  might  the  grantor;  the  grantee, 
whether  able  or  wilHng  or  not,  was  in  no  way  bound  to  do  it, 
and  had  a  right  to  expect  that  the  grantor  would  do  it,  while 
he,  the  grantor,  was  bound  to  do  it,  bound  by  the  obHgations 
of  his  express  covenant."  '    Lands  of  which  the  grantors  sup- 


•  Lloyd  V.  Quimby,  5  Ohio  Su 
265 ;  Miller  v.  Halsey,  2  Green,  48 ; 
Stewart  v.  Drake,  4  Halst.  143; 
Chapel  V.  Bull,  17  Mass.  221 ;  Elder 
V.  True,  32  Me.  104 ;  Burk  v.  Clem- 
ents, 16  Ind.  132;  Norton  v.  Bab- 
cock,  2  Met.  510.  In  the  last  cited 
case  the  grantor  had  obtained  the 
premises  under  a  judgment,  leaving 
an  equity  of  redemption  in  the 
judgment  debtor'.  This  equity  of 
redemption  was  levied  upon  by 
another  judgment  creditor  and 
purchased.  The  purchaser  notified 
the  grantee  of  his  intention  to 
redeem,  and  the  latter  paid  him 
a  sum  of  money  for  the  purpose  of 
prevention,  the  amount  for  which 
the  equity  had  been  purchased  and 
interest  both  being  $602.89.  The 
deed  contained  the  usual  covenants 
of  seisin,  warranty,  and  against  en- 
cumbrances. In  a  suit  upon  these 
covenants,  Chief  Justice  Shaw  said : 
"It  appears  by  the  statement  of 
facts  reported  as  found  by  the  jury 
that  more  than  a  month  before  the 
expiration  of  the  right  of  redeem- 
ing the  estate  levied  upon  by  the 
defendant,  and  by  him  conveyed  to 
the  plaintiff  with  covenants  of  war- 
ranty, Edward  A.  Phelps,  the  hold- 
er of  this  right  to  redeem,  gave  no- 
tice to  the  plaintiff  of  his  intention 
to  redeem ;  whereupon  the  plaintiff 
in  good  faith,  and  in  order  to  dis- 


charge that  right  to  redeem  and  en- 
able himself  to  retain  the  estate, 
paid  $602.89,  in  order  to  extinguish 
such  encumbrance.  The  value  of 
the  estate  at  that  time,  as  found  by 
the  jury,  was  $1,200;  for  the  one 
moiety  which  was  the  subject  of  the 
levy,  and  the  estate  to  be  redeemed, 
and  the  value  of  the  improvements 
made  upon  it,  $500.  It  is  contended 
for  the  plaintiff  that  the  amount 
thus  paid  by  him  to  extinguish  the 
encumbrance  is  the  measure  of  his 
damage;  but  we  think  that  this 
cannot  be  laid  down  as  a  rule  of 
damages  without  considerable  quali- 
fication. Where  the  encumbrance 
is  of  such  a  character  that  if  not 
extinguished  it  would  take  the 
whole  estate,  and  it  can  be  extin- 
guished for  the  value  of  the  estate, 
so  that  the  amount  paid  for  its 
extinguishment  would  bring  a  less 
onerous  burden  upon  the  covenan- 
tor than  he  would  have  to  sustain 
by  an  eviction,  it  being  for  his 
benefit  as  well  as  that  of  the  owner 
to  extinguish  it,  the  amount  paid 
for  extinguishing  would  be  the 
measure  of  damages,  because  it 
would  afford  the  plaintiff  perfect 
indemnity.  Otherwise,  the  amount 
thus  paid  exceeds  the  amount  which 
the  covenantor  would  have  been 
bound  to  pay  if  the  plaintiff  had 
been  evicted.    For  instance,  we  will 


CHAP.    XXVI.] 


COVENANTS. 


1699 


posed  themselves  seised  were  sold  with  covenants  of  seisin  and 
warranty,  but  it  appeared  subsequently  that  they  had  no  title. 
The  grantee  sued  on  the  covenant  of  seisin,  six  years  after- 


suppose  the  case  of  a  conveyance 
with  the  usual  covenants  against 
encumbrances  and  covenants  of 
warranty.  There  is  an  outstanding 
mortgage,  and  the  mortgagee  is 
about  to  foreclose  and  oust  the 
mortgage,  and  the  mortgagee  is 
evicted.  If  he  is  evicted,  he  will 
have  a  remedy  on  his  covenant,  and 
recover  the  value  of  the  land  at  the 
time  of  the  eviction  and  interest. 
Now,  if  the  value  of  the  land  be 
$2,000,  and  the  amount  of  the  mort- 
gage, with  interest,  $2,500,  should 
the  grantee  redeem  and  pay  $2,500 
to  extinguish  the  imcumbrance,  he 
could  not  recover  that  sum  of  his 
warrantor,  although  the  encum- 
brance could  not  be  extinguished 
for  less,  because  the  covenantor  is 
liable  only  for  the  value  of  the 
land.  But  if  the  mortgage  should 
amount  to  $1,500,  and  the  grantee 
should  pay  that  sum  to  redeem,  it 
would  constitute  the  measure  of 
damages,  because  it  would  afford 
an  indemnity  to  the  plaintiff,  and 
bring  a  less  charge  on  the  cove- 
nantor than  if  the  grantee  had  per- 
mitted the  mortgagee  to  foreclose." 
The  court  then  referred  to  the 
case  of  Wyman  v.  Brigden,  4  Mass. 
150,  where  a  levy  was  rightfully 
made  upon  the  estate  s  the  prop- 
erty of  another  for  $1,800,  and  the 
plaintiff,  who  had  never  been  out 
of  actua'  possession,  redeemed  by 
paying  $1,800,  the  estate  being 
worth  $3,000,  in  which  it  was  held 
that  the  sum  paid  for  the  redemp- 
tion should  be  the  measure  of  dam- 


ages, and  continued :  "We  are  then 
to  apply  this  rule  to  the  present 
case,  and  the  result  will  be  that  if 
the  sum  of  $602.89,  paid  by  the 
plaintiff  to  extinguish  the  right  of 
redemption,  was  less  than  the  de- 
fendant would  have  been  liable 
for  had  the  plaintiff  permitted 
Phelps  to  redeem,  then  that  is  the 
measure  of  damages  for  which  the 
defendant  is  now  liable.  If  it  ex- 
ceeds that  amount,  then  he  is  lia- 
ble only  for  the  smaller  amount. 
.  .  .  Had  the  plaintiff  declined 
the  offer  to  pay,  what  would  have 
been  tlie  amount  of  damages?  As 
the  estate  granted  by  the  defendant 
to  the  plaintiff  actually  passed  by 
the  conveyance,  the  defendant  being 
seised,  and  having  good  right  to 
convey,  subject  only  to  redemption 
by  his  creditor,  the  amount  of  dam- 
ages he  would  have  been  liable  for 
'on  his  covenants  was  the  value  of 
the  land  at  the  time  of  the  eviction : 
Gore  V.  Brazier,  3  Mass.  543,  3  Am. 
Dec.  182.  The  value  of  the  land, 
independent  of  the  improvements, 
was  then  $1,200  and  the  value  of 
the  improvements  $500,  making  in 
round  numbers  $1,700.  By  im- 
provements, we  here  understand 
buildings  or  betterments,  other 
than  repairs  made  by  the  defendant 
or  the  plaintiff  after  the  levy,  and 
before  the  expiration  of  the  year 
allowed  by  law  for  the  redemption. 
The  great  difficulty  probably  arises 
from  the  fact  of  these  expensive 
betterments  made  upon  a  defeasi- 
ble estate.     We  are  of  the  opinion 


1700 


THE    LAW    OF   DEEDS. 


[chap.    XXVI. 


ward,  and  the  original  grantors  purchased  the  title  of  the  true 
owners,  and  tendered  a  new  deed  to  the  grantee,  but  he  re- 
fused to  accept  it.  They  then  filed  a  bill  in  equity  to  compel 
him  to  receive  the  conveyance  and  to  stay  his  proceedings  on 
the  covenant ;  but  it  was  held  that  the  court  possessed  no  pow- 
er to  compel  the  grantee  to  take  the  deed  or  to  disturb  his 
action  on  the  covenant.'  When  a  grantee  does,  however,  buy 
in  an  outstanding  title,  his  recovery  is  limited  to  the  amount 
paid  by  him  with  interest  from  the  time  of  payment,  provided 
this  sum  does  not  exceed  the  consideration  money  and  in- 
terest* 

§  904.  Keeping  public  street  open. — While  a  party 
may  maintain  an  action  for  damages  for  the  breach  of  a  cove- 
nant, it  does  not  follow  in  all  instances  that  he  can  secure 
relief  by  enforcing  the  specific  performance  of  a  covenant 


that  if  they  were  made  by  the  cred- 
itor after  the  levy,  the  debtor  could 
not  be  charged  with  them  on  re- 
demption, for  the  reasons  above 
stated;  and  being  annexed  to  the 
realty,  and  having  become  a  part  of 
the  freehold,  they  would  have  con- 
stituted a  part  of  the  actual  value 
at  the  time  of  the  redemption. 
Suppose  them  made  by  the  plaintiff, 
they  were'  made  by  him  after  he 
acquired  a  title  purporting  to  be 
absolute  and  indefeasible  under  the 
defendant's  deed  of  warranty;  and 
we  are  of  opinion  that,  as  between 
the  plaintiff  and  defendant,  the  loss 
must  fall  on  the  latter.  It  arises 
from  want  of  caution  in  giving  such 
a  deed,  when  in  fact  he  had  only  a 
defeasible  estate."  That  the  cov- 
enantee is  not  bound  to  wait  for  ac- 
tual dispossession,  but  may,  after 
such  assertion,  pay  off  or  extin- 
guish the  right  by  purchase  and  re- 


cover the  reasonable  value  of  the 
right  discharged  or  extinguished 
by  him :  See  Schnelle  etc.  Lumber 
Co.  V.  Barlow,  34  Fed.  853;  Ward 
v.  Ashbrook,  78  Mo.  517;  Hall  v. 
Bray,  51   Mo.  288. 

8  Tucker  v.  Clark,  2  Sand.  Ch.  96. 
See,  also.  Burton  v.  Reeds,  20  Ind. 
87;  Noonan  v.  Isley,  21  Wis.  138; 
Bingham  v.  Weiderwax,  1  Comst. 
513;  Blanchard  v.  Ellis,  1  Gray, 
195,  61  Am.  Dec.  417;  Porter  v. 
Hill,  9  Mass.  36,  6  Am.  Dec.  22; 
Kincaid  v.  Brittain,  5  Sneed,  123 ; 
Parker   v.    Brown,    IS    N.    H.    188. 

1  Brooks  V.  Mohl,  104  Minn. 
404,  17  L.R.A.(N.S.)  1195,  124 
Am.  St.  Rep.  629,  116  N.  W. 
931;  Dade  v.  Shively,  8  Kan.  277. 
See,  also,  Schnelle  etc.  Lumber  Co. 
V.  Barlow,  34  Fed.  853 ;  Fames  v. 
Armstrong,  146  N.  C.  1,  59  S.  E. 
165,  125  Am.  St.  Rep.  436. 


CHAP,    XXVI.]  COVENANTS.  '   1701 

or  agreement.  A  deed  conveyed  a  tract  of  land  describing  it 
by  metes  and  bounds,  and  at  the  close  of  the  description  of 
the  property  added,  "together  with  the  right  of  way  in,  upon, 
and  over  a  street  thirty-five  feet  in  width,  called  Minna  street, 
running  from  Tenth  street  to  the  southwesterly  line  of  the 
lot  of  land  thereby  conveyed  (to  wit,  said  last-described  parcel 
of  land),  said  street  forever  to  be  and  remain  free  and  open 
as  a  public  street."  After  the  death  of  the  grantor,  the  land, 
including  the  street,  was  distributed  to  his  heirs,  and  the  gran- 
tee requested  that  the  street  be  kept  open,  and  this  request  be- 
ing refused,  he  brought  an  action  for  specific  performance. 
The  court  held  that  if  the  language  constituted  a  covenant, 
it  was  one  of  seisin,  of  warranty,  or  of  quiet  enjoyment;  if 
it  should  be  regarded  as  a  covenant  of  seisin,  it  was  broken 
as  soon  as  executed,  and  a  claim  for  the  breach  should  have 
been  presented  to  the  administratrix  of  the  grantor's  estate, 
and  if  considered  as  a  covenant  of  warranty  or  quiet  enjoy- 
ment, the  breach  occurring  after  the  death  of  the  covenantor, 
the  heirs,  as  they  were  not  named  in  the  covenant,  were  not 
bound.* 

§  905.  Covenant  against  encumbrances. — This  cove- 
nant is  intended  to  protect  the  grantee  against  rights  or  in- 
terests in  third  persons,  which,  while  consistent  with  the  fee 
being  in  the  grantor,  yet  diminish  the  value  of  the  estate.'  As 
a  general  rule,  this  covenant  does  not  run  with  the  land,  be- 
cause, if  an  encumbrance  exists,  the  covenant  is  broken  as  soon 
as  it  is  made.*    In  South  Carolina,  however,  it  is  held  that  the 

2  McDonald  v.   McElroy,  60  Cal.  *  Blondeau    v.    Sheridan,   81    Mo. 

484.     It  was  also  held  in  this  case  545 ;  Cathcart  v.  Bowman,  5  Pa.  St. 

that  the  grantee   had  no   right  cf  317;   Clark  v.   Swift,   3   Met.  392; 

way  of  necessity  over  the  grantor's  Mc   Pike  v.   Heaton,   131   Cal.   109, 

lands.  63  Pac.  179,  82  Am.  St.  Rep.  335; 

'Carey   v.   Daniels,   8   Met.  482;  Woodward  v.  Brown,  119  Cal.  283, 

Prescott  V.  Trueman',  4  Mass.  629,  51  Pac.  2,  542,  63  Am.  St.  Rep.  108; 

3  Am    Dec.  246;  Chapman  v.  Kim-  Waters  v.  Bagley,  3  Neb.    (unof.) 

ball,  7  Neb.  399.  106,    92     N.    W.    637;     Sears    v. 


1702 


THE    LAW    OF    DEEDS. 


[chap.    XXVI. 


covenant  runs  with  the  land,  although  it  may  be  broken  at  once 
upon  the  making  of  the  deed.^  And  in  Indiana  the  same  doc- 
trine obtains.^  In  Iowa,  although  the  covenant  is  considered 
as  in  presenti,  nevertheless  if  a  second  or  third  grantee  from 
the  covenantee  be  compelled  to  remove  the  encumbrance  to 
protect  his  title,  he  may  sue  upon  the  covenant  and  recover 
what  he  has  been  forced  to  pay7  In  Illinois,  a  remote  gran- 
tee may  maintain  an  action  against  the  original  grantor,  if  the 
grantee  sustains  the  damage,  although  the  covenant  is  not  con- 
sidered as  running  with  the  land.*    In  Nebraska,  this  covenant 


Broady,  66  Neb.  207,  92  N.  W.  214 ; 
Thompson  v.  Richmond,  102  Me. 
335,  66  Atl.  649;  Brass  v.  Brande- 
car,  70  Neb.  35,  96  N.  W..1035.  But 
see  Cole  v.  Kimball,  52  Vt.  639; 
Boyd  V.  Belmont,  58  How.  Pr.  513. 

6  McGrady  v.  Brisbane,  1  Nott  & 
McC.  104.  See  also  Tucker  v.  Mc- 
Arthur,  103  Ga.  409,  30  S.  E.  283; 
Security  Bank  v.  Holmes,  68  Minn. 
538,  71  N.  W.  699;  Geiszler  v.  De- 
Graff,  166  N.  Y.  339,  59  N.  E.  993, 
82  Am.  St.  Rep.  659 ;  Libby  v.  Hut- 
chinson, 12  N.  H.  190,  55  Atl.  547 ; 
In  re  Hanlin,  133  Wis.  140,  17 
L.R.A.(N.S.)  1189,  113  N.  W.  411. 

6  Martin  v.  Baker,  5  Blackf .  232 ; 
Whitern  v.  Krick,  31  Ind.  App.  577, 
68  N.  E.  694. 

'  Knadler  v.  Sharp,  36  Iowa,  236. 

8  Richard  v.  Bent,  59  111.  43,  14 
Am.  Rep.  1.  Justice  Sheldon  said: 
"Where  the  covenant  of  seisin  is 
broken,  and  there  is  an  entire  fail- 
ure of  title,  the  breach  is  final  and 
complete,  the  covenant  is  broken 
once  for  all ;  actual  damages  and  all 
the  damages  that  can  result  from 
the  breach  have  accrued;  the  meas- 
ure of  damages  is  the  purchase 
money  and   interest,   which  are   at 


once  recoverable.  In  such  case  the 
right  of  action  is  substantial,  and 
its  transfer  may  well  be  held  to 
come  within  the  rule  prohibiting  the 
assignment  of  choses  in  action. 
But  as  the  covenant  against  encum- 
brances is  one  of  indemnity,  the 
covenantee  can  recover  only  nomi- 
nal damages  for  a  breach  thereof, 
unless  he  can  show  that  he 
has  sustained  actual  loss  or  injury 
thereby,  or  has  had  to  pay  money 
to  remove  the  encumbrance.  And 
where  there  is  the  barren  right 
of  recovery  of  only  nominal  dam- 
ages, the  right  of  action  is  one 
only  in  name,  and  is  essentially  no 
right  of  action.  It  is  distinguish- 
able from  an  ordinary  chose  in  ac- 
tion." 

^  Chapman  v.  Kimball,  7  Neb. 
399.  In  Massachusetts  this  cove- 
nant was  originally  not  assignable : 
Whitney  v.  Dinsmore,  6  Cush.  124; 
Tufts  v.  Adams,  8  Pick.  547; 
Thayer  v.  Clemence,  22  Pick.  490. 
But  this  is  now  changed  by  statute : 
Gen.  Stat,  c.  89,  §  17.  See  Foote 
V.  Burnet,  10  Ohio,  332,  36  Am.  Dec. 
90.  For  a  case  holding  that  the 
easement   of   the   public   over   flat- 


CHAP.    XXVI.]  COVENANTS.  1703 

is  considered  an  agreement  that  the  grantor  has  an  unen- 
cumbered title,  and  it  is  not  viewed  as  having  the  nature  of 
a  covenant  of  indemnity.^ 

§  906.  Encumbrance  defined. — It  is  sometimes  ex- 
tremely difticult  to  determine  whether  or  not  a  particular 
right  in  another  is  an  encumbrance,  within  the  meaning  of 
the  covenant  against  encumbrances.  This  difficulty  arises 
from  the  fact  that  the  word  "encumbrance"  does  not  admit 
of  a  general,  and  at  the  same  time  accurate,  definition.  Be- 
sides, the  circumstances  of  each  particular  case  must  be  con- 
sidered. Take,  for  instance,  the  case  of  an  outstanding  lease. 
It  can  easily  be  imagined  that,  in  many  cases,  the  fact  that  a 
piece  of  property  was  leased  for  a  number  of  years  would, 
were  the  property  sought  for  an  investment,  add  to  its  value; 
while,  if  the  purchaser  desired  the  present  possession  of  the 
property,  the  existence  of  a  lease  might  detract  from  its  mar- 
ket value.  The  definition  of  an  encumbrance  that  finds  the 
most  favor  is  thus  given  by  Bouvier :  "Any  right  to,  or  inter- 
est in,  land  which  may  subsist  in  third  persons,  to  the  diminu- 
tion of  the  value  of  the  estate  of  the  tenant,  but  consistently 
with  the  passing  of  the  fee."  ^  To  this  general  rule,  the  modi- 
fication has  been  added  that:  "Nothing  which  constitutes  a 
part  of  the  estate,  or  which,  as  between  the  parties,  is  to  be 
regarded  as  an  incident  to  which  the  estate  is  subject,  can  be 
deemed  an  encumbrance."  ^ 

not  built  upon  or  inclosed,  is  not  an  chell  v.  Warner,  5  Conn.  527;  Car- 
encumbrance  within  the  meaning  of  ter  v.  Denman,  3  Zab.  273;  Tuske- 
the  usual  covenant  against  encum-  gee  etc.  Co.  v.  Birmingham  etc.  Co. 
brances,  see  Montgomery  v.  Reed,  161  Ala.  542,  23  L.R.A.(N.S.)  992, 
69  J\Ie.  510.  49  So.  378,  see,  also,  Dieterlen  v. 
iBouv.  Law  Diet,  tit.  Encum-  Miller,  99  N.  Y.  Supp.  699,  114  App. 
brances;  2  Greenleaf  on  Evidence,  Div.  40. 

§   242.     See   Prescott  v.   Trueman,  2  Dunklee   v.    Wilton    R    R.   Co., 

4  Mass.  630,  3  Am.  Dec.  246;  Mit-  4  Post   (N.  H.)  489. 


1704 


THE    LAW    OF    DEEDS. 


[chap.    XXVI. 


§  907.     What  are  considered  encumbrances. — A  right 

to  cut  and  maintain  a  drain  is  deemed  an  encumbrance;'  so 
is  a  right  to  dam  up  the  water  of  a  stream  passing  through 
the  land ;  *  so  is  a  right  to  maintain  an  artificial  watercourse,* 
or  a  right  to  cut  timber  on  the  land  conveyed. °  A  right  of 
dower  is  also  an  encumbrance,  and  it  is  immaterial  whether  it 
is  inchoate  or  consummate  by  the  death  of  the  husband.'  The 
covenant  is  broken  by  the  existence  of  a  paramount  private 
right  of  way,*  or  by  the  existence  of  taxes,  due  at  the  time 
the  conveyance  is  executed,'  or  which  levied  subsequently 
have,  by  operation  of  law,  relation  back  to  the  date  of  the 


«  Smith  V.  Spragiie,  40  Vt.  43. 

*  Morgan  v.  Smith,  11  111.  199; 
Gin  V.  Hancock,  31  Me.  42.  See 
Isele  V.  Arlington  Five  Cents  Sav- 
ings Bank,  135  Mass,  142;  Gawtry 
V.  Leland,  31   N.  J.  Eq.  385. 

6  Prescott  V.  White,  21  Pick.  341, 
32  Am.  Dec.  266. 

^  Spurr  V.  Andrew,  6  Allen,  420 ; 
Cathcart  v.  Bowman,  5  Barr.  319. 

'Walker  v.  Deaver,  79  Mo.  664; 
Shearer  v.  Ranger,  22  Pick.  447; 
Jeter  v.  Glenn,  9  Rich.  376;  Bige- 
low  V.  Hubbard,  97  Mass.  195 ;  Russ 
V.  Perry,  49  N.  H.  549;  Fuller  v. 
Wright,  18  Pick.  405.  See  Donnell 
V.  Thompson,  10  Me.  170,  25  Am. 
Dec.  216;  Porter  v.  Noyes,  2  Greenl, 
26,  11  Am.  Dec.  30;  Smith  v.  Can- 
nel,  32  Me.  126;  Hatcher  v.  An- 
drews, 5  Bush.  561 ;  Blanchard  v. 
Blanchard,  48  Me.  177;  Runnells  v. 
Webber,  59  Me.  488;  Henderson  v. 
Henderson,  13  Mo.  152;  McAlpin 
V.  Woodruff,  11  Ohio  St.  120;  Car- 
ter V.  Denman,  3  Zab.  273.  See, 
also,  Selden  v.  Jones  Co.,  74  Ark. 
348,  85  S.  W.  778;  Fishel  v.  Brown- 
ing, 145  N.  C.  71,  58  S.  E.  759; 
and  compare  Cain  v.  R.  Co.,  124 
Ky.  449,  99  S.  W.  297.     But  see, 


Combs  V.  Combs,  130  Ky.  827,  114 
S.  W.  334.  But  see  Powell  v. 
Monson  Co.,  3  Mason,  355,  where 
Judge  Story  said  that,  in  his  opin- 
ion, the  covenant  against  encum- 
brances was  not  broken  by  an  in- 
choate right  of  dower.  See,  how- 
ever, Ward  V.  Ashbrook,  78  Mo. 
515. 

8  Russ  V.  Steele,  40  Vt.  310;  Wil- 
son V.  Cochran,  10  Wright,  233. 
See,  also,  Sherwood  v.  Johnson,  28 
Ind.  App.  277,  68  N.  E.  645.  But 
see  McMullin  v.  Wooley,  2  Lans. 
394;  Wetherbee  v.  Bennett,  2  Allen, 
428. 

» Fuller  V.  Jillette,  9  Biss.  296; 
Ingalls  V.  Cooke,  21  Iowa,  560; 
Plowman  v.  Williams,  6  Lea 
(Tenn.),  268;  Almy  v.  Hunt,  48 
111.  45;  Mitchell  v.  Pillsbury,  5 
Wis.  410.  And  see  Evans  v.  Saun- 
ders, 3  Lea  (Tenn.),  734;  Selden 
V.  Jones  Co.,  89  Ark.  234,  116  S. 
W.  217;  See,  also,  Rambo  v.  Arm- 
strong (Colo.)  100  Pac.  586;  White 
V.  Gibson,  146  Mich.  547,  109  N. 
W.  1049;  Cemansky  v.  Fitch,  121 
la.  186,  96  N.  W.  754;  Patterson 
V.  Capon,  125  Wis.  198,  102  N.  W. 
1083.  ■  -        • 


CHAP.    XXVI.] 


COVENANTS. 


1705 


deed.^  But,  of  course,  if  the  taxes  levied  subsequently  be- 
come  a  lien  only  from  the  time  they  are  levied,  or  do  not  re- 
late so  far  back  as  the  time  of  the  execution  of  the  deed,  they 
are  not  encumbrances.^  There  is  no  breach,  however,  if  a 
portion  of  the  land  conveyed  has  been  illegally  sold  for  taxes.' 
The  existence  of  a  mortgage,  a  judgment,  or  any  debt  which 
has  the  effect  of  a  lien  upon  the  land,  is  an  encumbrance.* 
To  make  a  mortgage  an  encumbrance,  it  is  essential  that  it 
should  be  a  lien.  If,  therefore,  for  any  cause,  the  mortgage 
is  not  a  lien  upon  the  premises,  its  existence  is  not  a  breach 
of  the  covenant.^  It  is  held  that  taxes  which  are  a  lien,  but 
not  payable  until  afterward,  are  not  an  encumbrance  within 
a  covenant  that  there  are  no  encumbrances  suffered  by  the 
grantor.^  This  covenant  is  broken  by  the  existence  of  a  prior 
covenant  to  which  the  land  is  subject,  that  a  particular  fence 
shall  be  erected  or  maintained,"'^  or  that  no  intoxicating  liquor 


iRundell  V.  Lakey,  40  N.  Y.514; 
Hutchins  v.  Moody,  30  Vt.  656,  34 
Vt.  433;  Long  v.  Moler,  5  Ohio 
St.  272;  Overstreet  v.  Dobson,  28 
Ind.  256;  Peters  v.  Myers,  22  Wis. 
602;  Blossom  v.  Van  Court,  34 
Mo.  394,  86  Am.  Dec.  114. 

2  Jackson  v.  Sassaman,  5  Casey, 
109;  Tull  V.  Royston,  30  Kan.  617. 
That  tax  must  be  a  lien,  see  White 
V.  Gibson,  146  Mich.  547,  109  N. 
W.  1049.  That  special  assessments 
constituting  a  lien  are  within  mean- 
ing of  the  covenant,  see  Foley  v. 
Haverhill,  144  Mass.  352,  11  N.  E. 
554;  Pierse  v.  Bronnenberg,  40  Ind. 
App.  662,  81  N.  E.  739,  82  N.  E. 
126;  Lafferty  v.  Milligan,  165  Pa. 
534,  30  Atl.  1030.  See,  also,  Bowers 
V.  Real  Estate  Co.,  28  R.  I.  329,  67 
.A.tl.  324.  That  lien  must  have  at- 
tached prior  to  conveyance,  see 
Maloy  V.   Holl,   190  Mass.  277.  Id 


N,  E.  452;  Bowers  v.  Real  Estate 
Co.,  28  R.  I.  329,  67  Atl.  521. 

3  Cummings  v.  Holt,  56  Vt.  384. 
See,  also,  in  this  connection,  White 
v.  Gibson,  146  Mich.  547,  109  N.  W. 
1049. 

*  Norton  v.  Babcock,  2  Met.  510; 
Bean  v.  Mayo,  5  Greenl.  94; 
Shearer  v.  Ranger,  22  Pick.  447; 
Jones  V.  Davis,  24  Wis.  229.  See, 
also,  McLaughlin  v.  Royce,  108  la. 
254,  78  N.  W.  1105;  Whittern  v. 
Krick,  31  Ind.  App.  577,  68  N.  E. 
694. 

5  Case  V.  Erwin,  18  Mich.  434. 

*  Smith  V.  Eigerman,  5  Ind.  App. 
269,  51  Am.  St.  Rep.  281.  But  see 
Cochran  v.  Guild,  106  Mass.  29,  8 
Am.  Rep.  296. 

^Burbank  v.  Pillsbury,  48  N.  H. 
475,  97  Am.  Dec.  633;  Kellogg  v. 
Robinson,  6  Vt.  276,  27  Am.  Dec. 
550.  But  see  Parish  v.  Whitney, 
3   Gray,  516. 


1706 


THE    LAW    OF    DEEDS. 


[chap.    XXVI. 


shall  be  sold  on  the  premises.*  Where  a  daughter  had,  under 
the  provisions  of  her  father's  will,  the  right  of  living  in  a 
part  of  a  house,  of  which  the  whole  was  afterward  conveyed 
by  the  residuary  devisee,  it  was  held  that  this  paramount  right 
of  the  daughter  was  a  breach  of  the  covenant  against  encum- 
brances made  by  such  residuary  devisee.^  A  restriction 
against  building,  unless  it  be  done  in  a  specified  way,  is  also 
an  encumbrance.^  A  covenant  against  encumbrances  will  ex- 
tend to  an  outstanding  lease.^  Where  the  grantee,  however, 
at  the  time  of  the  grant  takes  an  assignment  of  the  lease  the 
rule  would  be  different.'  Conditions  of  such  a  nature  that 
their  nonperformance  may  cause  a  forfeiture  of  the  estate 
are  encumbrances.*  So  are  covenants  which  run  with  the 
land.  Thus,  a  covenant  to  maintain  a  division  fence  along 
the  entire  land  between  the  premises  conveyed  and  certain 
adjoining  land,  is  an  encumbrance.^  An  action  on  the  cove- 
nant does  not  accrue  until  an  ouster  takes  place,  or  the  gran- 
tee has  been  compelled  to  extinguish  the  covenant  to  protect 
his  estate.^  As  a  general  rule  it  may  be  said  that  the  existence 
of  an  easement  on  the  land  conveyed  which  diminishes  its 


8  Hatcher  v.  Andrews,  5  Bush. 
561. 

9Jarvis  v.  Buttrick,  1  Met.  480. 

1  Roberts  v.  Levy,  3  Abb.  Pr.,  N. 
S.,  311.  See,  also,  Locke  v.  Hale, 
165   Mass.  20,  42  N.   E.  331. 

2  Fritz  V.  Pusey,  31  Minn.  368. 
See,  also,  Demars  v.  Koehler,  62 
N.  J.  L.  203,  41  Atl.  720,  72  Am.  St. 
Rep.  642;  Crawford  v.  McDonald, 
84  Ark.  415,  106  S.  W.  206;  La 
Rue  V.  Parmele,  73  Neb.  663,  103 
N.  W.  304;  Brown  v.  Taylor,  115 
Tenn.  1,  4  L.R.A.(N.S.)  309,  88 
S.  W.  933. 

3  Mann  v.  Montgomery,  6  CaL 
App.  646,  92  Pac.  875. 


4jenks  V.  Ward,  4  Met.  412. 
But  see  Estabrook  v.  Smith,  6  Gray, 
572,  66  Am.  Dec.  445. 

5  Kellogg  V.  Robinson,  6  Vt.  276, 
27  Am.  Dec.  550.  And  see  Bron- 
son  V.  Coffin,  108  Mass.  175,  187, 
11  Am.  Rep.  335;  Burbank  v.  Pills- 
bury,  48  N.  H.  475,  97  Am.  Dec.  633. 
But  see,  also.  Parish  v.  Whitney, 
3  Gray,  516;  Plymouth  v.  Carver, 
16  Pick.  183.  Such  an  agreement  is 
construed  as  a  covenant  and  not  as 
a  condition:  Hartung  v.  Witte, 
59  Wis.  285.  But  see  Floyd  v. 
Clark,  7  Abb.  N.  C.  136. 

6  Hunt  V.  Marsh,  80  Mo.  396; 
Patterson  v.  Yancy,  81  Mo.  379. 


CHAP.    XXVI.]  COVENANTS.  1707 

value  violates  the  covenant.''    An  easement  to  cut  ice  is  an  in- 
cumbrance,^ so  is  the  right  of  a  mechanic  to  file  a  lien.* 

§  908.  Water  rights. — A  right  to  erect  and  maintain 
a  dam  has  been  held  to  be  an  encumbrance.^  But  where  the 
owner  of  an  upper  and  lower  mill  and  dam  had  sold  them 
to  different  persons,  it  was  held  that  the  existence  of  the  lower 
dam,  with  the  right  of  raising  water  by  it  to  the  point  at  which 
it  stood  at  the  time  of  the  execution  of  the  deed,  was  not  a 
breach  of  the  covenant  against  encumbrances,  which  the  con- 
veyance of  the  upper  mill  contained.  "The  right  to  the  use 
of  the  water  below  the  granted  premises,  as  modified  by  the 
appropriation  previously  made  for  the  lower  mill,  was  not,  in 
legal  contemplation,  an  encumbrance,  but  rather  in  the  nature 
of  parcel  of  such  lower  estate."  ^  Where  a  millpond  caused 
by  a  dam  on  adjoining  property  had  flooded  a  tract  of  land 
for  a  sufficient  length  of  time  to  create  a  prescriptive  right,  it 
was  held  that  this  right  of  flooding  was  not  an  encumbrance.' 
It  has  been  held  that  if  a  millowner  above  certain  land  has 
the  right  to  have  a  natural  stream  of  water  pass  over  land 
below,  such  a  right  is  not  an  encumbrance.'*  This  covenant 
relates  to  rights  existing  in  the  property  conveyed  in  favor  of 
parties  other  than  the  grantor,  which,  as  against  the  grantor 

'Ensign   v.    Colt, '75    Conn.    Ill,  1  Ginn  v.  Heath,  31   Me.  42. 

52,Atl.  829;  Weiss  v.  Binnian,  178  2  Carey  v.  Daniels,  8  Met.  466. 

111.  241,  52  N.   E.  969;   Teague  v.  » Kutz  v.   McCune,  22  Wis.  628, 

Whaley,  20  Ind.  App.  26,  50  N.  E.  99  Am.  Dec.  85.    This  case  was  de- 

41 ;    Denman    v.    Mentz,    63    N.    J.  cided  on   the  principle  that   where 

Eq.   613,    52   Atl.    1117;    Ensign    v.  property   is   notoriously    subject   at 

Colt,  75   Conn.  811,  52  Atl.  829.  the  time  to  some  easement  or  servi- 

8  Weiss  V.   Binnian,   178  111.   241,  tude  affecting  its  physical  condition, 
52  N.  E.  969.  purchasers  take  it  subject  to  such 

9  Duffy    V.    Sharp,    11    Mo.    App.  rights.      But    this    principle    is    not 
316.    See  as  to  other  incumbrances  :  universally  accepted. 

Denman    v.    Mentz,    63    N.    J.    Eq.  *  Prescott    v.    Williams,    S    Met, 

613,  52  Atl.  1117;  Jones  v.  Adams,       429,  39  Am.  Dec.  63a 
162  Mass.  224,  38  N.  E.  437;  Pat- 
ten V.  Fitz,   138  Mass.  456. 


1708  THE    LAW    OF    DEEDS.  [CHAP.    XXVI. 

and  his  assigns,  may  be  exercised  upon  and  enforced  against 
such  property.  Hence,  where  a  millpond  and  surrounding 
lands,  portions  of  which  were  sometimes  flooded,  are  owned 
by  one  person,  the  idea  of  an  easement  does  not  attach  to 
such  use  of  the  water,  while  such  person  owns  all  the  land. 
The  land  with  the  stream  and  use  of  it  as  a  water  right  con- 
stitute an  entire  estate,  of  which  the  dam  and  its  use  are  par- 
cel, and  neither,  it  is  held,  can  be  considered  an  encumbrance 
within  the  meaning  of  the  covenant.^ 

§  909.  Right  to  use  stairway  in  common. — A  deed  was 
executed  with  covenants.  The  owner  of  adjoining  premises 
had  the  right  to  use  in  common  a  stairway  which  was  a  part 
of  the  premises  conveyed.  An  action  was  brought  for  a 
breach  of  the  covenant  against  encumbrances,  on  the  ground 
that  the  right  to  such  use  was  a  breach.  It  was  contended 
before  the  court  that,  because  the  stairway  was  not  in  exist- 
ence when  the  covenant  giving  the  adjoining  owner  the  use 
of  the  stairway  was  made,  the  encumbrance  did  not  run  with 
the  land,  but  was  simply  a  personal  covenant  between  the  im- 
mediate parties  to  it.  The  court,  however,  decided  that,  what- 
ever the  previous  condition  of  things  may  have  been,  there 
was  a  valid  subsisting  encumbrance,  in  the  nature  of  an  ease- 
ment, upon  the  premises,  and  that  the  covenant  against  en- 
cumbrances was  clearly  broken  by  the  existence  of  this  ease- 
ment,* 

§  910.  Public  highways  as  encumbrances.— The  de- 
cisions of  the  courts  as  to  whether  the  existence  of  a  public 
highway  should  be  considered  an  encumbrance  are  conflict- 
ing, and  in  the  same  State,  in  some  instances,  the  course  of 

BHarwood  v.  Benton,  32  Vt.  724,  gan  v.  Smith,  11  111.  194;  Fitch  v. 

For   other  cases   relative   to   water  Seymour,  9  Met.  462. 

rights,  see  Dunklee  v.  Wilton  R.  R.  ^  McGowen    v.    Myers,    60    Iowa, 

Co.,  4  Fost.    (N.   H.)    489;   Gould  256. 
V.  Boston  Co.,  13  Gray,  442;  Mor- 


CHAP.    XXVI.] 


COVENANTS. 


1709 


decision  has  been  vacillating.  Decisions  may  be  found  to  the 
effect  that  a  pubHc  road  is  not  an  encumbrance.'  And  in  In- 
diana, this  was  at  first  laid  down  as  the  law.^  But  subsequent- 
ly this  decision  was  overruled,  and  the  court  decided  that  a 
public  road  or  street  is  an  encumbrance.®    And  in  most  of  the 


"^  Peterson   v.    Arthurs,  9   Watts, 
152;  Wilson  v.  Cochran,  10  Wright, 
233;   Whitbeck  v.   Cook,   15  Johns. 
483,   8   Am.    Dec.    272;    Jordan    v. 
Eve,  31   Gratt.   1.     See,  also,  Har- 
rison V.   Des   Moines   etc.   R.    Co., 
91  la.  114,  58  N.  W.  1081.    In  Wil- 
son V.  Cochran,  supra,  Woodward, 
C.  J.,  speaking  for  the  court,  said: 
"Public  roads  are  laid  out  in  Penn- 
sylvania  by   authority   of    the    law, 
in   pursuance    of    the    authority    of 
Penn,  who   established  the  custom 
of    allowing   to    every    grantee    six 
acres  in  the  hundred  as  a  compen- 
sation   for   the    roads   that    should 
thereafter    be     opened,     and     they 
confer  on  the  public  merely  a  right 
of  passage,  whilst  the  title  to  the 
soil  is  left  undisturbed  in  the  owner 
of    the    land    through    which    they 
pass.     A  purchaser  who  sees  such 
a   road   that   has   been    used    thirty 
years  upon  the  land  he  is  buying, 
has  no  right  to  consider  it  an  en- 
cumbrance within  the  meaning  of 
a  covenant  against  encumbrances." 
In   Peterson  v.  Arthurs,  the  court, 
per  Mr.  Justice  Kennedy,  observed : 
"Although    a    public    highway,    no 
doubt,    is,    in    many    instances,    an 
injury   instead  of   a  benefit  to  the 
holder  or  owner  of  the  land  upon 
which  it  is  located,   and  therefore 
tends  to  lessen  its  value  in  the  esti- 
mation of  a  purchaser,  who,  before 
he  closes  his  contract  for  his  pur- 
chase of  land,  has  seen  it  and  made 


himself  acquainted  with  its  locality 
and  the  state  and  condition  of  it ; 
and,  consequently,  if  there  be  a  pub- 
lic road  or  highway  open  and  in 
use  upon  it,  he  must  be  taken  to 
have  seen  it,  and  to  have  fixed  in 
his  own  mind  the  price  that  he  was 
willing  to  give  for  the  land,  with 
a  reference  to  the  road,  either  mak- 
ing the  price  less  or  more,  as  he 
conceived  the  road  to  be  injurious 
or  advantageous  to  the  occupation 
or  enjoyment  of  the  land."  See, 
also,  Ake  v.  Mason,  101  Pa.  St. 
17;  Cincinnati  v.  Brachman,  35 
Ohio  St.  289. 

8  Scribner  v.  Holmes,  16  Ind.  142. 

9Burk  V.  Hill,  48  Ind.  52,  17 
Affl,  Rep.  731.  After  the  decision 
had  been  made,  a  petition  for  a 
rehearing  was  filed,  and  Chief  Jus- 
tice Buskirk,  in  delivering  the  opin- 
ion of  the  court  in  this  petition, 
said :  "It  is  insisted  that  our  ruling 
is  in  direct  conflict  with  Scribuer 
v.  Holmes,  16  Ind.  142.  That  case 
does  not  seem  to  have  received 
much  consideration.  The  opinion 
is  as  follows  :  'Per  curiam. — This 
case  was  tried  on  May  16th,  on 
which  day  a  motion  for  new  trial 
was  overruled,  exception  taken,  and 
leave  given  to  file  a  bill  of  excep- 
tions in  thirty  days.  The  bill  was 
not  filed  until  July  6th.  That  was 
too  late.  A  legal  public  highway  in 
actual  use  is  not  embraced  in  a 
general    covenant    against    encum- 


1710 


THE    LAW    OF    DEEDS. 


[chap.  XXVL 


States,  the  rule  prevails  that  a  public  highway  or  road  is  an 


brances.     It  would  be  unreasonable 
that  it  should  be.     See  Rawle  on 
Covenants,  141,  et  seq.'     The  court 
having  held   in  that  case   that  the 
bill  of  exceptions  did  not  constitute 
a  part  of  the  record,  there  was  no 
question  presented  for  decision,  and 
all   that   was   said   in   reference  to 
what  encumbrances  were  embraced 
in  the  covenants  of  a  deed  was  obi- 
ter.    Although  what  was  said  was 
in  direct  conflict  with  the  well-con- 
sidered   case    of    Medler   v.    Hiatt, 
8  Ind.  171,  no  reference  was  made 
to  such  case.     Besides,  the  authori- 
ties cited  do  not  sustain  the  ruling. 
Rawle,  after  referring  to  the  cases 
of  Whitbeck  v.  Cook,  15  Johns.  483, 
8  Am.   Dec.   272,   and   Peterson  v. 
Arthurs,  9  Watts,  152,  says:     'But 
whatever    weight    may    be    due    to 
these  decisions,  it  cannot  be  denied 
that  the   current   of    authority   has 
set  strongly  the  other  way,  and  the 
ruling    in    Kellogg    v.    Ingersoll,    2 
Mass.   101,  has  been  approved  and 
sustained    in    nearly    all    the    New 
England   States,  and  it  appears  to 
be    definitely    settled    there    that    a 
public   highway   does    constitute   at 
law  a  breach  of  this  covenant.    And 
in   a   very   recent   case   in   Illinois, 
these  decisions  have  been  approved 
and  applied  to  the  case  where  the 
encumbrance  complained  of  was  the 
right  granted  to  a  railway  company 
to  construct  their  road  across  the 
land  conveyed.'     Counsel  also  refer 
us  to  several  cases  in  Pennsylvania 
in  conflict  with  our  ruling.    In  the 
original  opinion,  it  was  stated  that 
the  ruling  had  been  uniform  in  that 
State  in  the  opposite  direction,  and 


the    reason    of    such    ruling    was 
stated.   In  Kutz  v.  McCune,  22  Wis. 
628,  99  Am.   Dec.  85,  the  rule  as 
it    exists    in    Pennsylvania    is    ap- 
proved and  applied.     On  the  other 
hand,    our    ruling   is    supported   by 
many   adjudged   cases   which   were 
not   cited    in   the   original   opinion, 
and  which  we  now  cite:     Herrick 
V.   Moore,   19  Me.  313;   Haynes  v. 
Young,  36  Me.  557;  Lamb  v.  Dan- 
forth,  59  Me.  322,  8  Am.  Rep.  426; 
Pritchard  v.  Atkinson,  3  N.  H.  335 ; 
Butler  V.   Gale,  27  Vt.  739;   Clark 
V.    Estate   of   Conroe,  38  Vt.   469; 
Parish    v.    Whitney,   3    Gray,    516; 
Harlow   v.   Thomas,    15    Pick.   66; 
Sprague   v.   Baker,    17   Mass.   586; 
Giles  V.  Dugro,  1  Duer,  331 ;  Hub- 
bard v.  Norton,  10  Conn.  422;  Kel- 
logg v.  Malin,  50  Mo.  496,  11  Am. 
Rep.  426.     In  the  last  cases  cited, 
the    court,    after    referring    to    the 
rule  as  it  exists  in  the  New  England 
States,  saj's:     'Where  the  question 
has  come  up,  the  same  doctrine  has 
been     approved     in     the     Western 
States.'    The  court  then  reviews  the 
cases   in   Illinois   and   Iowa,   which 
are   cited    in    the    original    opinion. 
.    .    .     Then,  as  a  highway  or  rail- 
way located  and  running  over  one's 
land  is  an  encumbrance,  and,  to  a 
greater  or  less  degree,  obstructs  and 
encumbers  the  free  use  and  enjoy- 
ment of  the  land,  it  follows  that  a 
person    selling    land    thus    encum- 
bered,   and    covenanting   that   it    is 
not,  must  be   held   to  perform  his 
covenants    by    its    removal,    or    re- 
spond in  damages.     The  seller  may 
protect  himself   by  excepting   such 
encumbrances  from  the  operation  of 


CHAK    XXVI.] 


COVENANTS. 


1711 


encumbrance,  whose  existence  is  a  breach  of  the  contract.^ 
The  existence  of  the  habihty  of  land  to  be  assessed  for  street 


the  covenants  of  his  deed."  And 
see  Gillfillan  v.  Snow,  51  Ind.  305, 
308. 

1  Haynes  v.  Young,  36  Me.  557 ; 
Butler  V.  Gale,  1  Williams  (Vt), 
742;  Herrick  v.  Moore,  19  Me.  313; 
Pritchard  v.  Atkinson,  3  N.  H.  335 ; 
Parish  v.  Whitney,  3  Gray,  516; 
Hubbard  v.  Norton,  10  Conn.  422; 
Kellogg  V.  Ingersoll,  2  Mass.  101. 
In  Butler  v.  Gale,  1  Williams  (Vt), 
742,  the  opinion  of  the  court  was 
delivered  by  Chief  Justice  Redfield, 
who,  in  the  course  of  it,  said :  "In 
this  country,  where  our  tenures  are 
strictly  allodial,  we  are  very  much 
accustomed  to  consider  that,  if  an- 
other really  possesses  any  rights  in 
our  land,  it  is  so  far  forth  an  en- 
cumbrance upon  our  title.  WHiether 
it  be  small  or  large  in  amount, 
whether  it  be  a  mortgage  or  a  right 
to  flow  a  portion  or  all  of  the  land 
for  a  shorter  or  longer  period  dur- 
ing the  year,  or  to  draw  water  from 
a  well  or  spring,  or  to  water  cattle 
at  a  brook,  or  to  pass  across  the 
land  on  foot,  or  with  teams,  or  to 
draw  wood  in  winter  only  across 
the  land,  or  to  build  and  maintain 
a  railway  perpetually,  or  a  highway, 
is  certainly  of  no  importance  in 
determining  the  mere  technical 
question  of  encumbrance  or  no  en- 
cumbrance. And  it  can  make  no 
difference  whether  this  right  is  no- 
torious or  not.  If  the  question  of 
an  encumbrance  were  to  be  de- 
termined by  its  notoriety,  or  what 
is  the  same  thing,  by  its  being 
known  to  the  purchaser,  it  must, 
to  preserve  consistency,  be  extended 


to  all  encumbrances.  And,  in  that 
view,  the  grantee  could  not  recover 
upon  this  covenant  for  paying  a 
mortgage  which  he  knew  existed 
at  the  time  of  his  purchase.  But 
the  contrary  is  perfectly  well  estab- 
lished, and  in  regard  to  these  rights 
of  way,  if  they  existed  only  in  a 
prior  grant,  and  were  not  known 
to  the  grantee  at  the  time  of  pur- 
chase, no  one  could  claim  that  they 
did  not  constitute  a  breach  of  the 
covenant  against  encumbrances. 
And  if  the  question  whether  a  high- 
way is  an  encumbrance  upon  land 
is  to  be  determined  by  the  fact  of 
its  being  open  and  notorious,  it 
resolves  itself  into  this,  whether  it 
was  the  intention  of  the  parties  to 
treat  it  as  an  encumbrance  or  not. 
And  the  same  rule  should  equally 
apply  to  a  mortgage  which  the  pur- 
chaser agreed  to  pay.  But  no  law- 
yer will  contend  that  in  such  a 
case,  if  the  grantor  covenants 
against  all  encumbrances,  he  is  not 
liable  to  refund  the  money  paid 
upon  the  mortgage  by  the  grantee ; 
that  is,  he  is  so  liable  at  law.  This 
is  the  written  contract  of  the  par- 
ties, and  it  cannot  be  set  right  in 
a  court  of  law,  where  the  writing 
is  the  exclusive  evidence  of  the 
contract.  But  in  such  a  case,  the 
party  must  resort  to  a  court  of 
equity  to  restrain  the  other  party 
from  claiming  indemnity  against  an 
encumbrance  which  was  intended  to 
be  excepted  from  the  covenant. 
And  the  same  is  no  doubt  true 
of  a  covenant  against  encumbrances 
so  far  as  highways  are  concerned. 


1712  THE    LAW    OF    DEEDS.  [CHAP.    XXVI. 

improvements  is  a  breach  of  this  covenant,  contained  in  a  deed 
which  was  executed  between  the  time  of  improving  the  street 
and  levying  the  assessment.* 

§  911.  Right  of  way  for  railroad. — On  the  same  princi- 
ple which  declares  that  the  existence  of  a  public  road  is  an 
encumbrance,  it  is  held  that,  also,  is  a  right  of  way  for  a  rail- 
road.^ The  supreme  court  of  Illinois,  after  stating  that  a  pub- 
lic highway  is  an  encumbrance,  says  the  same  rule  must  apply 
to  a  right  of  way  for  a  railroad,  and  observes :  "When  a  pur- 
chaser obtains  title  by  deed  without  covenant,  he,  of  course, 
takes  it  subject  to  all  defects  and  encumbrances  it  may  be  un- 
der at  the  time  of  the  conveyance."  One  of  the  arguments 
that  may  be  adduced  in  support  of  the  proposition,  that  a  right 
of  way  for  a  railroad  should  not  be  considered  as  an  encum- 
brance within  the  meaning  of  this  covenant,  is  the  fact  that 
such  right  of  way  must  have  been  known  to  the  parties.  We 
have  considered  this  point  in  a  previous  section,  and  found 
that  knowledge  of  the  existence  of  the  encumbrance  was  no 
defense  to  an  action  upon  the  covenant.  If  the  grantor  sees 
proper  to  insert  covenants  in  his  deed,  he  does  so  voluntarily, 
and  should,  in  case  of  a  breach,  suffer  all  the  consequences 

Ordinarily,  a  court  of  equity  would  ^  Barlow  v.    McKinley,  24   Iowa, 

readily  suppose  the  encumbrance  of  69;   Beach  v.   Miller,  51  111.  206,  2 

an  existing  highway  or  railway,  or  Am.    Rep.    290;    Van    Wagner    v. 

any    other    known    and    notorious  Van  Nostrand,  19  Iowa,  422;  Wil- 

right  of   a  similar  character,   as   a  liamson  v.  Hall,  62  Mo.  405;  Kel- 

right  to  draw  water  from  a  spring,  logg  v.  Malin,  50  Mo.  500,  11  Am. 

exercised  by  another  at  the  time  of  Rep.   426,    s.    c.   62    Mo.   429.      See 

the    conveyance,    could    not    have  Haynes    v.    Young,    36    Me.    557; 

been    intended    to    be    indemnified  Giles  v.  Dugro,  1  Duer,  331 ;  Har- 

against,  and  therefore  should  have  low  v.  Thomas,  15  Pick.  66;  Lamb 

been   excepted   from  the  operation  v.    Danforth,   59    Me.    322,   8   Am. 

of    the    covenant,    and    would,    no  Rep.  426.     See,  also,  Tuskegee  etc. 

doubt,    so    require    the    parties    to  Co.    v.    Birmingham    etc.    Co.,    161 

treat  the  deed."  Ala.   542,  23  L.R.A.(N.S.)   992,  49 

2  Fagan  v.  Cadmus,  46  N.  J.  L.  So.  378 ;  Whiteside  v.  Magruder,  75 

441.  Mo.  App.  364. 


I 


CHAP.    XXYI.]  COVENANTS.  1713 

which  ordinarily  follow.  The  reason  which  may  induce  a  pur- 
chaser to  insist  on  a  covenant,  is  that  he  fears  a  failure  of,  or 
some  defect  in  the  title,  and  seeks  to  protect  himself  in  this 
mode.  The  grantor  may  covenant  for  a  good  title  when  both 
he  and  the  grantee  know  that  the  title  is  defective.  As  said 
by  the  court  in  Illinois  :  "If  he  were  perfectly  assured  on  these 
questions,  he  would  seldom  be  tenacious  in  obtaining  a  cove- 
nant or  warranty.  If,  then,  a  private  or  public  way  is  an  en- 
cumbrance, and  we  have  seen  that  it  is,  it  follows  that,  in  prin- 
ciple, a  turnpike  or  railway  legally  located,  and  running  over  a 
piece  of  land,  upon  the  same  ground  and  for  the  same  reasons 
must  be  held  to  be  an  encumbrance,  as  it  in  an  equal  or  great- 
er degree  obstructs  or  encumbers  the  free  use  of  the  lands."  * 

§  912.  Right  to  light.— One  of  the  chief  difficulties  in 
harmonizing  the  decisions  upon  the  subject  of  what  things  are 
to  be  considered  encumbrances,  consists  in  the  fact  that  differ- 
ent courts  take  different  views  of  the  importance  to  be  at- 
tached to  easements  that  are  known  to  the  purchaser  at  the 
time  of  the  conveyance.  In  the  case  of  highways,  some  courts, 
in  deciding  them  not  to  be  encumbrances,  have  been  led  to 
this  conclusion  by  the  consideration  that  their  existence  was 
notorious.  On  the  other  hand,  it  has  been  stated  that  this  cir- 
cumstance was  entitled  to  no  weight,  in  determining  what 
were  encumbrances.  On  the  ground  that  "the  parties,  in  the 
absence  of  anything  to  the  contrary,  are  presumed  to  have 

*  Beach  v.  Miller,  51  111.  206,  2  ment  was  made  in  regard  to  plain- 
Am.  Rep.  290.  Land  for  right  of  tiff's  having  a  pass.  It  was  held 
way  was  conveyed  to  a  railroad  that  though  the  grantee  furnished 
company  in  consideration,  among  a  pass  for  a  while,  plaintiff  could 
other  things,  of  free  passage  for  not  recover  damages  from  it  for 
plaintiff  at  all  times  over  the  road,  failure  to  continue  the  pass,  as  his 
and  the  deed  provided  for  a  for-  right  of  action  was  against  the  com- 
feiture  on  failure  to  comply  with  pany  to  whom  the  conveyance  was 
any  condition.  The  road  was  con-  originally  made:  Eddy  v.  Hinnant, 
veyed  to  another,  but  no  agree-  82  Tex.  354. 
Deeds,  Vol.  n.~108 


1714 


THE  LAW    OF   DEEDS. 


[chap.  XXVH, 


contracted  with  reference  to  the  then  condition  and  state  of 
the  property,  and  if  an  easement  to  which  it  is  subject  be 
open  and  visible,  and  of  a  continuous  character,  the  pur- 
chaser is  supposed  to  have  been  wiHing  to  take  the  property, 
as  it  was  at  the  time,  subject  to  such  burthen,"  in  a  case  where 
the  owner  of  two  adjoining  lots  leased  one  of  them  for  a 
term  of  years,  and  covenanted  that  the  lessee  should  have  the 
right  to  open  certain  windows,  obtaining  their  light  from 
the  adjoining  lot,  and  subsequently  conveyed  this  adjoining 
lot,  with  a  covenant  of  warranty  against  his  acts,  it  was  held 
that  the  existence  of  the  windows,  and  the  right  to  their  pres- 
ervation, was  not  a  breach  of  the  covenant.^ 

§  913.     Purchaser's    knowledge    of    encumbrance. — It 

has  sometimes  been  intimated  that  if  the  purchaser  has  notice 
.of  encumbrances  at  the  time  he  takes  his  deed,  he  should 
be  deemed  to  take  the  land  subject  to  them,  and  if  he  desires 
protection  against  them,  they  should  be  expressly  mentioned 
in  the  covenant.^  But  notwithstanding  some  statements  to 
the  contrary,  it  seems  to  be  settled  by  authority  that  the  fact 
that  encumbrances  are  known  to  the  purchaser  to  exist  at  the 
time  of  the  execution  of  the  deed  does  not  affect  his  right  to 
recover  on  the  covenant  against  encumbrances,  unless  they  are 
excepted  in  terms  from  its  operation.''    "It  is  no  answer  to  the 


*  James  v.  Jenkins,  34  Md.  1,  6 
Am.  Rep.  300.  "As  the  wall  had 
been  erected,"  said  the  court,  "and 
the  lights  therein  were  plainly  to 
be  seen  when  the  appellant  pur- 
chased the  property  overlooked  by 
them,  it  is  but  rational  to  conclude 
that  he  contracted  with  reference 
to  that  condition  of  the  property, 
and  that  the  price  was  regulated 
accordingly.  ,  .  .  The  grantor, 
by  his  covenant,  warranted  the 
premises  as  they  were,  and  by  no 
means  intended  to  warrant  against 


an  existing  easement,  which  was 
'open  and  visible  to  the  appellant, 
and  over  which  the  former  had  no 
power   or   control   whatever." 

6  2  Sugden  on  Vendors,  449.  And 
see  as  to  covenant  of  warranty, 
Bennett  v.  Buchan,  76  N.  Y.  386. 

'Snyder  v.  Lane,  10  Ind.  424; 
Funk  V.  Voneida,  11  Serg.  &  R. 
112,  14  Am.  Dec.  617;  Hubbard  v. 
Norton,  10  Conn.  422;  Lloyd  v. 
Quimby,  5  Ohio  St.  265;  Suydam 
V.  Jones,  10  Wend.  185,  25  Am.  Dec. 
552;   Perkins  v.  Williams,  5  Cold. 


CHAP.    XXVI.] 


COVENANTS. 


1715 


purchaser's  complaint  to  say  it  was  his  duty  to  search  the  rec- 
ord, and  to  have  protected  himself  by  some  special  covenant 
against  this  specific  encumbrance.  It  was  no  part  of  this 
case  that  he  had  actual  notice,  but  if  he  had,  it  could  make  no 
difference."  ^  It  has  been  held,  however,  by  a  divided  court, 
that  a  breach  of  the  usual  covenants  found  in  a  deed  does  not 


513;  Sargent  v.  Gutterson,  13  N.  H. 
473;  Worthington  v.  Curd,  22  Ark. 
285;  Harlow  v.  Thomas,  15  Pick. 
70;  Medler  v.  Hiatt,  8  Ind.  173; 
Shanahan  v.  Perry,  130  Mass.  460. 
A  covenant  against  encumbrances 
covers  those  known  as  well  as 
those  unknown :  Burr  v.  Lancaster, 
30  Neb.  688,  27  Am.  St.  Rep.  488; 
Clark  V.  Monroe,  38  VL  469;  Butler 
V.  Gale,  27  Vt.  739;  Watts  v. 
Fletcher,  107  Ind.  391,  8  N.  E.  Rep. 
Ill;  Burk  v.  Hill,  48  Ind.  52,  17 
Am.  Rep.  731 ;  Quick  v.  Taylor, 
113  Ind.  540,  16  N.  E.  Rep.  588; 
Kellogg  V.  Malin,  50  Mo.  496,  11 
Am.  Rep.  426;  Miller  v.  Desverges, 
75  Ga.  407;  Smith  v.  Eason,  46  Ga. 
r^l6;  Prichard  v.  Atkinson,  3  N.  H. 
335;  Fletcher  v.  Chamberlin,  61  N. 
H.  438;  Foster  v.  Foster,  62  N.  H. 
.^32;  Van  Wagner  v.  Van  Nostrand, 
19  Iowa,  422;  Gerald  v.  Elley,  45 
Iowa,  322;  Barlow  v.  McKinley,  24 
Iowa,  69;  McGowen  v.  Myers,  60 
Iowa,  256 ;  Farrington  v.  Tourtelott, 
39  Fed.  Rep.  738;  Barlow  v.  De- 
laney,  40  Fed.  Rep.  97;  Beach  v. 
Alillcr,  51  111.  206,  2  Am.  Rep.  290; 
Long  V.  Moler,  5  Ohio  St.  271; 
Doctor  V.  Darling,  22  N.  Y.  Rep. 
594;  Huyck  v.  Andrews,  113  N.  Y. 
81,  3  L.R.A.  789,  10  Am.  St.  Rep. 
432;  Butt  v.  Rifife,  78  Ky.  252; 
Hubbard  v.  Norton,  10  Conn.  422; 
Herrick  v.  Moore,  19  Me.  313; 
Haynes    v.    Young,    36    Me.    557; 


Lamb  v.  Dan  forth,  59  Me.  322,  8 
Am.  Rep.  426 ;  Kellogg  v.  Inger- 
soU,  2  Mass.  97 ;  Parish  v.  Whitney, 

3  Gray,  516;  Sprague  v.  Baker,  17 
Mass.  586;  Harlow  v.  Thompson, 
15  Pick.  66;  Ladd  v.  Noyes,  137 
Mass.  151.  But  see,  as  to  a  public 
road,  Heymes  v.  Estey,  116  N.  Y. 
501,  15  Am.  St.  Rep.  421;  Huyck 
v.  Andrews,  113  N.  Y.  81,  3  L.R.A. 
789,  10  Am.  St.  Rep.  432;  Bennett 
v.  Keehn,  67  Wis.  154.  See,  also, 
Browne    v.    Taylor,    115    Tenn.    1, 

4  L.R.A. (N.S.)  309,  and  note,  88 
S.  W.  933;  McCall  v.  Wilkes,  121 
Ga.  722,  49  S.  E.  722;  Allen  v. 
Taylor,  121  Ga.  S41,  49  S.  E.  799; 
Yancey  v.  Tatlock,  93  la.  386,  61 
N.  W.  997;  Newburn  v.  Lucas, 
126  la.  85,  101  N.  W.  730;  Demars 
v.  Koehler,  62  N.  J.  L.  203,  41  Atl. 
720,  72  Am.  St.  Rep.  642;  Osburn 
v.  Pritchard,  104  Ga.  145,  30  S.  E. 
656;  Whittern  v.  Krick,  31  Ind. 
App.  577,  68  N.  E.  694;  Sherwood 
v.  Johnson,  28  Ind.  App.  277,  62 
N.  E.  645;  Weiss  v.  Binnian,  178 
111.  241,  52  N.  E.  969. 

8  Funk  v.  Voneida,  11  Serg.  &  R. 
110,  14  Am.  Dec.  617,  per  Duncan, 
J.  See,  also,  Taylor  v.  Gilman,  25 
Vt.  413;  Dunn  v.  White,  1  Ala. 
645;  Morgan  v.  Smith,  11  111.  200; 
Grice  v.  Scarborough,  2  Spear,  649, 
42  Am.  Dec.  391;  Barlow  v.  Mc- 
kinley, 24  Iowa,  70;  Van  Wagner 
v.  Van  Nostrand,  19  Iowa,  427. 


1716  THE   LAW    OF  DEEDS.  [CHAP.    XXVL 

arise  from  the  fact  that  a  pubHc  road  has  been  laid  out  across 
the  land,  as  the  grantee  has  constructive  notice  of  this  from 
the  public  records.®  And  it  is  also  held  that  no  breach  of  the 
usual  covenants  in  a  deed  is  caused  by  the  existence  of  rail- 
w^ays  over  the  land  at  the  time  of  its  sale,  the  purchaser  being 
presumed  to  have  taken  the  land  with  knowledge  of  them.^ 

§  914.  Parol  evidence  to  exclude  encumbrance  from 
covenant. — It  is  a  well  settled  rule  that  parol  evidence  is 
inadmissible  to  contradict  «i  written  contract.  Accordingly, 
where  it  is  intended  by  the  parties  that  a  certain  encumbrance 
is  to  be  excluded  from  the  general  operation  of  the  covenant, 
such  fact  should  be  mentioned  in  the  deed.  When  both  par- 
ties are  cognizant  of  encumbrances  existing  on  the  land  to  be 
conveyed,  this  covenant  is  frequently  made  and  accepted.  The 
grantor  may  intend  to  discharge  them  from  the  purchase 
money,  or  to  remove  them  at  some  future  period,  and  the  pur- 
chaser has  a  right  to  rely  on  the  language  of  the  covenant.* 
In  some  states,  parol  evidence  is  admissible  to  show  that  the 
plaintiff,  at  the  time  of  the  execution  of  the  deed,  agreed  him- 
self to  discharge  the  encumbrance.^  In  a  case  in  Missouri,  the 
deed  contained  a  covenant  against  encumbrances,  and  the  pur- 
chaser having  paid  certain  taxes,  brought  an  action  to  recover 
the  amount  so  paid.  The  court,  however,  permitted  the  de- 
fendant to  show  that  the  amount  of  the  taxes  was  a  portion  of 
the  consideration  price,  and  that  the  purchaser  agreed  to  as- 

9Ake  V.  Mason,  101  Pa.  St.  117.       McLeod    v.    Skiles,    81    Mo.    595; 

1  Smith  V.  Hughes,  50  Wis.  620.       Dunn  v.  White,  1  Ala.  645;  Rawle 

2  See,     generally,     McGowen     v.       on    Covenants,   tit.    121. 

Myers,  60  Iowa,  256;    Burbank  v.  3  pitzgj-    y.    Fitzer,   29    Ind.    468; 

Pillsbury,  48  N.  H.  483,  97  Am.  Dec.  Pitman    v.    Conner,    27    Ind.    ZZ7 ; 

633;    Long   v.    Moler,   5    Ohio    St.  Allen  v.  Lee,  1  Ind.  58,  48  Am.  Dec. 

274;   Harlow  v.  Thomas,   15   Pick.  352;    Sidden  v.   Riley,  22   111.    111. 

70;   Refeld  v.  Woodfolk,  22  How.  See  Leland  v.  Stone,  10  Mass.  459, 

326;    Keith    v.    Day,    15    Vt.    670;  afterward  limited  in  the  later  case 

Jaques  v.  Esler,  3  Green  Ch.  463 ;  of  Spurr  v.  Andrew,  6  Allen,  422. 
Skinner  v.  Starner,  12  Harris,  123; 


CHAP.    XXVI.]  COVENANTS.  1717 

sume  their  payment.*  But  while  the  rule  is  not  universal,  it 
is  generally  held  that  aside  from  the  question  of  fraud  or  mis- 
take, parol  evidence  is  not  admissible  to  show  that  a  covenant 
against  encumbrances,  where  no  exception  is  contained  in  the 
deed  itself,  was  not  intended  by  the  parties  to  apply  to  a  par- 
ticular encumbrance.^  It  has  been  held  that  the  declarations  of 
the  grantor  made  before  the  execution  of  the  deed,  are  admis- 
sible  in  evidence  for  the  purpose  of  showing  that  the  warranty 
was  intended  to  cover  certain  liens  or  defects  in  title  of  which 
the  grantee  had  knowledge.^ 

§  915.  Comments. — On  purely  equitable  principles,  it 
seems  harsh  to  say  that  where  there  is  a  well-known  easement 
or  encumbrance,  the  covenant  should  embrace  it.  But  if  the 
rule  which  prohibits  the  introduction  of  parol  evidence  to  vary 
or  contradict  a  written  agreement  were  departed  from,  disas- 
trous consequences  would  result.  It  is  safer  to  declare  that 
the  covenant  against  encumbrances  shall  apply  to  all  encum- 
brances, whether  known  to  exist  or  not,  than  it  is  to  admit  pa- 
rol evidence  to  determine  what  were  the  unexpressed  and  se- 
cret intentions  of  the  parties  in  each  particular  case.  When  it 
is  once  understood  that  this  covenant  means  just  what  its 
language  indicates,  every  encumbrance  desired  to  be  excluded 
from  its  operation  can  be  excepted  by  express  terms  in  the 
deed.  Where  the  covenantor  attempted  to  show  that  it  was 
agreed,  at  the  time  the  deed  was  executed,  that  the  security  of 
the  covenantee  should  consist  in  the  assignment  of  a  certain 
judgment,  and  that  the  covenantor  should  incur  no  liability  on 

4  Laudman  v.  Ingram,  49  Mo.  212.  v.    Sturgis,   3    Cush.   203 ;    Long  v. 

« Harlow  v.  Thomas,  15  Pick.  70;  Moler,  5  Ohio   St.  271.     And  see, 

Spurr    V.    Andrew,    6    Allen,    422 ;  also.  Van  Wagner  v.  Van  Nostrand, 

Townsend   v.    Weld,  8   Mass.    146;  19  Iowa,  428;  Grice  v.  Scarborough, 

McKennan  v.   Doughman,   1    Penn.  2    Spear,    649,    42    Am.    Dec.    391; 

417;  Donnell  v.  Thompson,  10  Me.  Suydam  v.  Jones,  10  Wend.  185,  25 

177,  25  Am.  Dec.  216;  CollingAvood  Am.   Dec.  552. 
V.  Irwin,  3  Watts,  306;  Batchelder  6  Skinner  v.  Moye,  69  Ga.  476. 


1718 


THE  LAW   OF   DEEDS. 


[chap.    XXVI. 


his  covenant,  the  court  said:  "It  is  impossible  to  avoid  see- 
ing that  to  admit  such  proof  would  not  only  be  admitting  evi- 
dence to  contradict,  but  to  alter  and  change  most  materially  the 
character  and  effect  of  the  deed.  Instead  of  being  a  deed 
with  covenant  of  general  warranty,  as  it  purports  on  its  face, 
it  would,  by  the  operation  of  the  evidence  proposed  to  be 
given,  become  a  deed,  without  any  engagement  whatever  on 
the  part  of  the  grantor  for  the  goodness  of  the  title."  '  But 
if  through  fraud  or  mistake  the  deed  does  not  contain  the 
true  agreement  of  the  parties,  it  may  be  reformed  in  equity.' 

§  916.  Damages  for  breach  of  covenant  against  en- 
cumbrances.— This  covenant  is  considered  to  be  one  of 
indemnity.  If  the  covenantee  has  not  removed  the  encum- 
brance, it  may  be  that  he  will  never  be  disturbed  by  it  He 
may  discharge  the  encumbrance,  but  if  he  does  not  do  so  the 
universal  rule  is  that  while  it  remains  undischarged  and  he  has 
suffered  no  actual  injury,  he  is  entitled  to  only  nominal  dam- 
ages.^   "The  doctrine  is  well  settled  that  in  an  action  of  cove- 


'  Collingwood  v.  Irwin,  3  Watts, 
306. 

8  Busby  V.  Littlefield,  11  Post  (N. 
H.)  199;  Haire  v.  Baker,  1  Seld. 
360;  Stanley  v.  Goodrich,  18  Wis. 
505;  Taylor  v.  Gilman,  25  Vt.  413; 
Butler  V.  Gale,  27  Vt.  744;  Metcalf 
V.    Putnam,   9    Allen,   99. 

'  De  La  Vergne  v.  Norris,  7 
Johns.  358,  5  Am.  Dec.  281;  Sel- 
leck  V.  Griswold,  57  Wis.  291; 
Reasoner  v.  Edmundson,  5  Ind.  393; 
Baldwin  v.  Munn,  2  Wend.  405,  20 
Am.  Dec.  627;  Brady  v.  Spruck,  27 
111.  478;  Andrews  v.  Davison,  17  N. 
H.  413,  43  Am.  Dec.  606;  Mills  v. 
Saunders,  4  Neb.  190;  Brooks  v. 
Moody,  20  Pick.  574 ;  Bean  v.  Mayo, 
5  Greenl.  94;  Davis  v.  Lyman,  6 
Conn.  255;  Pitcher  v.  Livingston,  4 


Johns.  1,  4  Am.  Dec.  229;  Robbins 
V  Arnold,  11  111.  App.  434;  Hall 
v  Dean,  13  Johns.  105;  Randall  v. 
Mallett,  14  Me.  51;  Prescott  v. 
Trueman,  4  Mass.  627,  3  Am.  Dec. 
246;  Snell  v.  Iowa  Homestead  Co., 
59  Iowa,  701 ;  Wyman  v.  Ballard, 
12  Mass.  304;  Richardson  v.  Dorr, 
5  Vt.  20;  Eaton  v.  Lyman,  30  Wis. 
41 ;  Stewart  v.  Drake,  4  Halst.  141 ; 
Garrison  v.  Sandford,  12  N.  J.  L. 
261 ;  Braman  v.  Bingham,  26  N.  Y. 
483;  Foote  v.  Burnett,  10  Ohio, 
317,  36  Am.  Dec.  90;  Johnson  v. 
Collins,  116  Mass.  392;  Jenkins  v. 
Hopkins,  8  Pick.  348;  Cormings  v. 
Little,  24  Pick.  269;  Tufts  v. 
Adams,  8  Pick.  547;  Leffingwell  v. 
Elliott,  8  Pick.  457,  19  Am.  Dec. 
343;   Clark  v.   Swift,   3   Met  390; 


CHAP.    XXVI.] 


CO\^NANTS. 


1719 


nant  against  encumbrances,  if  the  plaintiff  has  extinguished 
the  encumbrance,  he  is  entitled  to  recover  the  amount  paid  for 
it;  but  if  he  has  not  bought  it  in,  he  is  only  entitled  to  nomi- 
nal damages."  ^  And  the  cost  of  extinguishing  the  encum- 
brance is  always  the  measure  of  damages,  irrespective  of  the 
value  of  the  land  or  the  purchase  price.^  Where  an  unexpired 
lease  is  the  breach,  the  value  of  the  occupation  of  the  premises 
during  the  time  for  which  the  grantee  has  been  deprived  of 
their  use  is  the  measure  of  damages.' 


Thayer  v.  Clemence,  22  Pick.  490; 
Patterson  v.  Stewart,  6  Watts  & 
S.  528,  40  Am.  Dec.  SS6;  Willetts 
V.  Burgess,  34  111.  500;  Cheney  v. 
City  National  Bank,  11  111.  562; 
Richard  v.  Bent,  59  111.  38,  14  Am. 
Rep.  1;  Osgood  v.  Osgood,  39  N. 
H.  209;  Smith  v.  Jefts,  44  N.  H. 
482;  Willson  v.  Willson,  25  N.  H. 
235,  57  Am.  Dec.  320;  Standard  v. 
Eldredge,  16  Johns.  254;  Smith  v. 
Ackerman,  5  Blackf,  541 ;  Pomeroy 
V.  Burnett,  8  Blackf.  142;  Pills- 
bury  V.  Mitchell,  5  Wis.  17;  Her- 
rick  V.  Moore,  19  Me.  313;  Clark 
V.  Perry,  30  Me.  151;  Runnells  v. 
Webber,  59  Me.  488;  Reed  v.  Pierce, 
36  Me.  455,  58  Am.  Dec.  761; 
Edington  v.  Nix,  49  Mo.  134;  St. 
Louis  V.  Bissell,  46  Mo.  157;  Funk 
V.  Voneida,  11  Serg.  &  R.  110,  14 
Am.  Dec.  617;  Beecher  v.  Baldwin, 
55  Conn.  419,  3  Am.  St.  Rep.  57; 
Marsh  v.  Thompson,  102  Ind.  272; 
Sac.  County  Bank  v.  Hooper,  11 
Iowa,  435;  Harwood  v.  Lee,  85 
Iowa,  622;  Lane  v.  Richardson,  104 
N.  C.  642;  Bradshaw  v.  Crosby,  151 
Mass.  235;  Johnson  v.  Colins,  116 
Mass.  392;  Ensign  v.  Colt  (Conn.) 
52  Atl.  829,  946;  McGuckin  v.  Mil- 
bank,  152  N.  Y.  297,  46  N.  E.  490; 
Brown  v.  Taylor,    115   Tenn.    1,  4 


L.R.A.(N.S.)  309,  112  Am.  St.  Rep. 
811,  88  S.  W.  933,  In  re  Hanlin, 
133  Wis.  140,  17  L.R.A.(N.S.)  1189, 
113  N.  W.  411 ;  Fishel  v.  Browning, 
145  N.  C.  71,  58  S.  E.  759 ;  Mand-.go 
V.  Conway,  90  N.  Y.  Supp.  324,  45 
Misc.  Selden  v.  Jones  Co.,  89 
Ark.  234,  116  S.  W.  217;  Eagan  v. 
Yeoman  (Tenn.)  46  S.  W.  1012). 

1  Pillsbury  v.  Mitchell,  5  Wis.  17, 
21,  per  Cole,  J.  See,  also.  Price 
V.  Deal,  90  N.  C.  290. 

2  Walker  v.  Deaver,  79  Mo.  664; 
Morehouse  v.   Heath,  99  Ind.  509. 

3  Fritz  V.  Pusey,  31  Minn.  368. 
See,  also.  Browning  v.  Stillwell,  86 
N.  Y.  Supp.  707,  42  Misc.  346; 
Toch  V.  Horowitz,  87  N.  Y.  Supp. 
455;  Wragg  v.  Mead,  120  Iowa,  319, 
94  N.  Wi  856;  Brown  v.  Tailor, 
115  Tenn.  1,  4  L.R.A.(N.S.)  309, 
88  S.  W.  933,  112  Am.  St.  Rep.  811 
The  damages  awarded  should  be 
such  as  to  indemnify  the  person  for 
the  loss  actually  sustained;  Har- 
rington V.  Bean,  89  Me.  470,  36 
Atl.  986;  Loiseau  v.  Threlstad,  14 
S.  Dak.  257,  85  N.  W.  189;  New- 
burn  V.  Lucas,  126  Iowa,  85,  101 
N.  W.  730;  McCrillis  v.  Thomas, 
110  Mo.  App.  699,  85  S.  W.  673; 
Brass  v.  Vandecar,  70  Neb.  35,  96 
N.  W.  1035;  Browning  v.  Stillwell, 


1720 


THE   LAW    OF   DEEDS. 


[chap.    XXVI. 


§  917.  Special  injury. — The  rule  just  enunciated  ap- 
plies where  there  is  a  technical  breach  of  the  covenant  by  the 
existence  of  the  encumbrance,  but  where  it  has  not  been  dis- 
charged, and  no  actual  injury  has  resulted.  But  if  the  cove- 
nantee has  been  really  injured,  he  may  recover  damages  for 
such  injury,  notwithstanding  the  fact  that  the  encumbrance 
continues  undischarged.  A  good  illustration  of  this  princi- 
ple is  found  in  a  case  where  there  was  a  paramount  mortgage 
having  a  number  of  years  to  run  upon  a  piece  of  land,  cove- 
nanted to  be  free  from  encumbrances,  and  the  creditors  of  the 
covenantee  believing  that  the  property  he  held  might  not  be 
sufficient  to  pay  off  the  encumbrance  and  all  his  debts,  began 
to  seek  the  collection  of  their  claims.  The  covenantee  in  con- 
sequence made  an  assignment,  and  the  court  held  that  if  the 
land  was  sold  by  process  of  law  for  so  much  less  than  the 
value  of  the  mortgage,  a  recovery  could  be  had  on  the  cove- 
nant for  the  full  amount  of  the  mortgage.* 

§  918.  Removal  of  encumbrance  by  purchase. — Where 
fhe  encumbrance  has  been  removed  or  paid  off  by  the  cove- 
nantee, the  rule  is  that  he  is  entitled  as  damages  for  a  breach 
of  the  covenant,  the  amount  that  he  has  paid  for  this  end,  if  the 
amount  was  reasonable  and  fair.^    "In  the  absence  of  fraud," 


86  N.  Y.  Supp.  707,  42  Misc.  346. 
In  Bailey  v.  Agawam  etc.  Bank, 
190  Mass.  20,  3  L.R.A.(N.S.)  98, 
76  N.  E.  449,  the  court  says:  "A 
covenant  against  encumbrances,  if 
broken,  is  broken  at  the  date  of 
the  deed  (Jenkins  v.  Hopkins,  9 
Pick.  543),  and  the  damages  accrue 
at  that  date.  The  damages  .  .  . 
are  a  just  compensation  for  the 
injury  actually  suffered  at  that 
time." 

*  Funk  V.  Voneida,  11  Serg.  &  R. 
110,  14  Am.  Dec.  617.  See  Braman 
V.   Bingham,  26  N.  Y.  483.     See, 


also,  Sewall  v.  Clarke,  51  Cal.  227; 
Levitsky  v.  Johnson,  35  Cal.  41. 
See  in  this  connection,  Dana  v. 
Goodfellow,  51  Minn.  375,  53  N.  W. 
656;  Daggott  v.  Reas,  79  V\^is.  60, 
48  N.  W.  127. 

5  Grant  v.  Tallman,  20  N.  Y.  191, 
75  Am.  Dec.  384 ;  Stoddard  v.  Gage, 
41  Me.  287;  Brandt  v.  Foster.  5 
Iowa,  287;  Farnum  v.  Peterson,  111 
^Mass.  148;  Brown  v.  Broadhead,  3 
W^hart.  104;  Andrews  v.  Appel,  22 
Hun,  429;  Henderson  v.  Hender- 
son, 13  Mo.  151;  Kent  v.  Cantrall, 
44  Ind.  452;  Harlow  v.  Thomas,  15 


CHAP.    XXVI.]  COVENANTS.  1721 

says  Strong,  J.,  "a  party  who  has  purchased  real  estate,  and 
received  a  deed  for  it,  containing  a  covenant  that  it  is  free 
from  any  encumbrance,  and  has  subsequently  paid  off  and  dis- 
charged an  encumbrance,  may  set  off  what  has  been  paid  by 
him  against  the  amount  due  on  any  mortgage  for  the  purchase 
money.  In  order  to  avail  himself  of  such  defense,  however, 
he  would  be  bound  to  prove  either  what  had  been  paid  by  him 
was  actually  due,  or  that  he  had  given  notice  to  his  vendor  re- 
quiring that  such  vendor  should  pay  off  the  encumbrance  with- 
in a  limited  time,  or  that  otherwise  the  purchaser  would  pay  a 
specified  amount.  Some  of  the  authorities  lay  down  the  rule 
that  the  purchaser  may  set  off  or  recover  the  amount  paid 
without  any  qualification;  but  it  seems  to  me  reasonable  that 
a  vendor  who  has  been  innocent  of  any  fraud  should  have  an 
opportunity  to  set  himself  right  before  he  should  be  obliged  to 
pay  or  allow  more  than  the  amount  actually  due.  It  is,  I 
think,  well  settled  that  where  the  encumbrance  has  not  been 
paid  off  by  the  purchaser  of  the  land,  and  he  has  remained  in 
quiet  and  peaceable  possession  of  the  premises,  he  cannot  have 
relief  against  his  contract  to  pay  the  purchase  money,  or  any 
part  of  it,  on  the  ground  of  defect  of  title.    The  reason  is,  that 

Pick.  66;  Snyder  v.  Lane,  10  Ind.  109  111.  46;  Bradshaw  v.  Crosby, 
424;  Rardin  v.  Walpole,  38  Ind.  151  Mass.  237;  Johnson  v.  Collins, 
146;  Stambaugh  v.  Smith,  23  Ohio  116  Mass.  392;  Coburn  v.  Litch- 
St.  584;  Norton  v.  Babcock,  2  Met.  field,  132  Mass.  449;  Harrington  v. 
516;  Baker  v.  Corbett,  28  Iowa,  Murphy,  109  Mass.  299;  Smith  v. 
320;  Spring  v.  Chase,  22  Me.  505,  Carney,  127  Mass.  179;  Harwood  v. 
39  Am.  Dec.  595;  Garrison  v.  Sand-  Lee,  85  Iowa,  622;  Kelsey  v.  Remer, 
ford,  12  N.  J.  L.  261;  Thayer  v.  43  Conn.  129,  21  Am.  Rep.  638; 
Clemence,  22  Pick.  490;  Chapel  v.  Smith  v.  Jefts,  44  N.  H.  482;  Fagan 
Bull,  17  Mass.  213;  Davis  v.  Ly-  v.  Cadmus,  46  N.  J.  L.  441;  Hart- 
man,  6  Conn.  255;  Batchelder  v.  shorn  v.  Cleveland,  52  N.  J.  L. 
Sturgis,  3  Cush.  205 ;  Lane  v.  Rich-  473.  See,  also,  Win  etc.  Lumber 
ardson,  104  N.  C.  642;  Corbett  v.  Co.  v.  Deshon,  65  Ark.  103,  44 
Wrenn,  25  Or.  305;  Barnhart  v.  S.  W.  1036;  Richmond  v.  Ames, 
Hughes,  46  Mo.  App.  318;  Beecher  164  Mass.  467,  41  N.  E.  671; 
V.  Baldwin,  55  Conn.  419,  3  Am.  Thomas  v.  Ellison  (Tex.)  116  S. 
St.    Rep.   57;   Wadhams   v.    Swan,  W.  1141.  110  S.  W.  934. 


1722 


THE  LAW   OF  DEEDS. 


[chap.   XXVL 


the  encumbrance  may  not,  if  let  alone,  ever  be  asserted  against 
the  purchaser,  as  it  may  be  paid  off  or  satisfied  in  some  other 
way;  and  then  it  would  be  inequitable  that  any  part  of  the 
purchase  money  should  be  retained."  ^ 

§  919.  Burden  of  proof. — It  does  not  follow  that  the 
price  paid  was  the  fair  and  reasonable  value  of  the  encum- 
brance. The  covenantee  is  not  entitled  to  the  price  that  he 
has  been  compelled  to  pay,  or  has  seen  proper  to  pay,  but  only 
to  this  amount  when  he  has  fairly  and  reasonably  paid  it.  It 
accordingly  results  that  he  has  the  burden  of  showing  this 
fact.  "It  was  incumbent  on  him  to  prove,"  said  Chilton,  J., 
in  one  of  these  cases,  "in  order  to  recover  more  than  nominal 
damages,  not  only  the  amount  paid,  but  that  such  payment  was 
the  reasonable  value  of  the  interest  acquired.  To  hold  that 
it  was  reasonable,  from  the  bare  fact  of  payment,  is  to  as- 
sume as  true  the  fact  to  be  proved."  "^ 

§  920.     When    encumbrance    cannot    be    removed. — 

Where  the  encumbrance  is  of  such  a  character,  as  a  right  of 
dower,  or  an  easement,  that  it  cannot  be  removed  at  the  op- 
tion of  the  grantor  or  grantee,  damages  are  awarded  for  the 
injury  that  proximately  is  caused  by  the  encumbrance.*     If 


6  Grant  v.  Tallman,  20  N.  Y.  191, 
194,  75  Am.  Dec.  384.  See,  also, 
McGary  v.  Hastings,  39  Cal.  360, 
2  Am.  Rep.  456 ;  Eaton  v.  Tallmage, 
22  Wis.  502;  Kurd  v.  Hall,  12  Wis. 
112;  Bailey  v.  Scott,  13  Wis.  618; 
Waldo  V.  Long,  7  Johns.  173;  Reed 
V.  Pierce,  36  Me.  455,  58  Am.  Dec. 
761;  Kelly  v.  Low,  18  Me.  244; 
Wetmore  v.  Green,  11  Pick.  462; 
Dimmick  v.  Lockwood,  10  Wend. 
142;  Monahan  v.  Smith,  19  Ohio 
St.  384;  Smith  v.  Dixon,  27  Ohio 
St.  471 ;  Moseley  v.  Hunter,  15  Mo. 
322;   Guthrie   v.   Russell,  46  Iowa, 


269,  26  Am.  Rep.  135;  Knadler  v. 
Sharp,  36  Iowa,  232;  Jenkins  v; 
Hopkins,  8  Pick.  346;  Smith  v. 
Dixon,  27  Ohio  St.  471;  Morrison 
V.  Underwood,  20  N.  H.  369 ;  Stan- 
ard  V.  Eldridge,  16  Johns.  254.  And 
see  Connell  v.  Boulton,  25  Op.  Can. 
Q.  B.  444. 

'  Anderson  v.  Knox,  20  Ala.  156, 
161.  See,  also.  Pate  v.  Mitchell, 
23  Ark.  590.  79  Am.  Dec.  114;  Dick- 
son V.  Desire,  23  Mo.  167;  Harlow 
V.  Thomas,  15  Pick.  69;  Lawless  v. 
Collier,  19  Mo.  480. 

8  Prescott    V.    Trueman,   4    Mass. 


CHAP.    XXVI.] 


COVENANTS. 


1723 


the  encumbrance  consists  of  a  right  of  way  over  the  land 
for  the  purpose  of  obtaining  water  from  a  spring  thereon, 
damages  should  be  awarded  upon  the  assumption  that  just 
compensation  should  be  made  for  the  injury  resulting  from 
the  continued  existence  of  the  easement.'  The  value  of  tim- 
ber for  the  purposes  of  a  farm  at  the  time  of  the  execution 
of  the  deed,  will  be  taken  as  the  amount  of  compensation  to 
which  the  covenantee  is  entitled  for  an  encumbrance,  consist- 
ing of  a  prior  grant  of  the  timber  with  the  right  of  enter- 
ing to  cut  it  during  a  future  term.^  If  the  encumbrance  is  a 
life  estate,  for  the  existence  of  which  damages  are  sought,  the 
purchaser  is  entitled  to  compensation  for  the  value  of  such  es- 
tate for  the  time  that  he  is  deprived  of  the  enjoyment  of  the 
property.^  In  the  case  of  an  outstanding  lease,  the  purchaser 
may  be  allowed  the  annual  value,  or  interest  on  the  purchase 
money,  during  the  length  of  time  his  enjoyment  is  suspended, 


627,  3  Am.  Dec.  246;  Greene  v 
Creighton,  7  R.  I.  1;  Kellogg  v 
Malin,  50  Mo.  496,  11  Am.  Rep 
426;  Hubbard  v.  Norton,  10  Conn 
422;  Giles  v.  Dugro,  1  Duer,  335 
Barlow  v.  McKinley,  24  Iowa,  69; 
Van  Wagner  v.  Van  Nostrand,  19 
Iowa,  427;  Butler  v.  Gale,  27  Vt. 
739;  Chapel  v.  Bull,  17  Mass.  212; 
Beach  v.  Miller,  51  111.  206,  2  Am. 
Rep.  290;  Batchelder  v.  Sturges,  3 
Cush.  205;  Harlow  v.  Thomas,  15 
Pick.  66;  Richmond  v.  Ames,  164 
Mass.  467,  41  N.  E.  671 ;  Newburn 
V.  Lucas,  126  Iowa,  85,  101  N.  W. 
730. 

9  Harlow  v.  Thomas,  15  Pick.  66. 

1  Cathcart  v.  Bowman,  5  Pa.  St. 
317;  See  as  to  damages  for  breach 
of  covenant  against  encumbrances : 
Bohlcke  v.  Buchanan,  94  Mo.  App. 
320,  68  S.  W.  92;  Loiseau  v.  Threl- 
stead,  14  S.  D.  257,  85  N.  W. 
189;  Brown  v.  Taylor,  115  Tenn.  1, 


4  L.R.A.(N.S.)  309,  88  S.  W.  933, 
112  Am.  St.  Rep.  811;  Ensign  v. 
Colt,  75  Conn.  Ill,  52  At).  829, 
946;  Lloyd  v.  Sandusky,  203  111. 
621,  68  N.  E.  154,  affirming  95  111. 
App.  593;  McGuckin  v.  Milbank, 
152  N.  Y.  297,  46  N.  E.  490,  affirm- 
ing 31  N.  Y.  Supp.  1049,  83  Hun, 
473 ;  Utica  C.  &  S.  Ry.  Co.  v.  Gates, 
47  N.  Y.  Supp.  231,  21  Misc.  Rep. 
205 ;  De  Long  v.  Spring  Lake  & 
Sea  Girt  Co.,  65  N.  J.  L.  1,  47  Atl. 
491;  Whittern  v.  Krick,  31  Ind. 
App.  577,  68  N.  E.  694;  Harring- 
ton V.  Bean,  89  Me.  470,  36  Atl. 
896;  Bailey  v.  Agawam  Nat.  Bank, 
190  Mass.  20,  3  L.R.A.(N.S.)  98, 
76  N.  E.  449,  112  Am.  St.  Rep. 
296;  McCrillis  v.  Thomas,  110  Mo. 
App.  699,  85  S.  W.  673;  J.  Wragg 
&  Sons  V.  Mead,  120  Iowa,  319,  94 
N.  W.  856;  Brass  v.  Vandecar,  70 
Neb.  35,  96  N.  W.  1035. 
2  Christy  V.  Ogle,  33  111.  295. 


1724 


THE  LAW    OF   DEEDS, 


[chap.    XXVI. 


or  what  would  be  a  fair  rent  for  the  land.'  Only  nominal 
damages,  however,  can  be  recovered  for  the  existence  of  a 
mere  inchoate  right  of  dower,  because  until  the  death  of  the 
husband  no  real  damage  can  result.*  The  decrease  in  the 
market  value  of  the  land  may  usually  be  taken  as  a  proper  cri- 
terion by  which  to  measure  the  damages  caused  by  the  exist- 
ence of  an  easement.®  If  the  covenant,  however,  is  in  the 
form  of  an  agreement  to  pay  and  discharge  the  encumbrances, 
the  covenantee,  although  he  has  not  extinguished  them,  is  en- 
titled to  recover  the  amount  of  the  encumbrances.^ 

§  921.     Covenant  for  quiet  enjoyment. — In  the  United 
States,  the  principal  or  sweeping  covenant  in  deeds  is  consid- 


3  Rickert  v.  Snyder,  9  Wend.  416; 
Porter  v.  Bradley,  7  R.  I.  542.  See 
Grice  v.  Scarborough,  2  Spear,  649, 
42  Am.  Dec.  391 ;  Moreland  v.  Metz, 
24  W.  Va.  119,  49  Am.  Rep.  346; 
Wragg  V.  Mead,  120  Iowa,  319,  94 
N.  W.  856;  Brown  v.  Tailor,  115 
Tenn.  1,  112  Am.  St.  Rep.  811,  4 
L.R.A.(N.S.)  309,  88  S.  W.  933. 

4  Sheaf  V.  O'Neil,  9  Mass.  13; 
Hazelrig  v.  Huston,  18  Ind.  481; 
Runnells  v.  Webber,  59  Me.  488. 

5  Williamson  v.  Hall,  62  Mo.  405 ; 
Giles  V.  Dugro,  1  Duer,  331;  Kel- 
logg V.  Malin,  62  Mo.  429.  See 
Burbanks  v.  Pillsbury,  48  N.  H. 
475,  97  Am.  Dec.  633;  Bronson  v. 
Coffin,  108  Mass.  175,  11  Am.  Rep. 
335 ;  Wetherbee  v.  Bennett,  2  Allen, 
428;  Richmond  v.  Ames,  164  Mass. 
467,  41  N.  E.  671;  Newburn  v. 
Lucas,  126  Iowa,  85,  101  N.  W. 
730. 

6Hogan  V.  Calvert,  21  Ala.  199; 
Booth  V.  Starr,  1  Conn.  249,  6 
Am.  Dec.  233 ;  Gilbert  v.  Wyman, 
1  Comst.  550;  Gardner  v.  Niles, 
16    Me.    279;    Webb    v.    Pond,    19 


Wend.  423;  Ex  parte  Negus,  7 
Wend.  499;   Lithbridge  v.   Mytton, 

2  Barn.  &  Adol.  772;  Gennings  v. 
Norton,  35  Me.  308;  Lathrop  v.  At- 
wood,  21  Conn.  123;  Ardesco  Oil 
Co.  V.  N.  A.  Mining  Co.,  66  Pa. 
St.  381 ;  Monahan  v.  Smith,  19  Ohio 
St.  384;  Dorsey  v.  Dashiell,  6  Md. 
204 ;  Scobey  v.  Finton,  39  Ind.  275. 
But  if  the  agreement  is  not  to  dis- 
charge the  debt,  but  to  sav2  harm- 
less from  damage,  the  covenant  be- 
comes one  of  indemnity  only;  Chase 
V.  Hinman,  8  Wend.  452;  Mann  v. 
Eckford,  15  Wend.  502;  Kip  v. 
Brigham,  6  Johns.  158;  Booth  v. 
Starr,  1  Conn.  244,  6  Am.  Dec.  233 ; 
Thomas  v.  Allen,  1  Hill,  145 ;  Rock- 
feller  V.  Donnelly,  8  Cowen,  623. 
And  see  Stewart  v.  Clark,  11  Met. 
384;  Hodgson  v.  Bell,  7  Term  Rep. 
97;  Sparkes  v.  Martindale,  8  East, 
593;  Holmes  v.  Rhodes,  1  Bos.  & 
P.  638;  Devol  v.  Mcintosh,  23  Ind. 
529;  Warwick  v.  Richardson,  10 
Mees.  &  W.  284;  Churchill  v.  Hunt, 

3  Denio,  321. 


CHAP.    XXVI.]  COVENANTS.  1725 

ered  to  be  the  covenant  of  warranty ;  but  In  England,  the  cove- 
nant for  quiet  enjoyment  occupies  this  place.  It  is  the  cove- 
nant generally  inserted  in  leases,  however.  This  covenant  is 
generally  expressed  in  this  form :  "And  that  the  said  prem- 
ises shall  at  all  times  remain  and  be  to  the  use  of  the  said 
(purchaser),  his  heirs  and  assigns,  and  be  quietly  entered  into 
and  upon,  and  held  and  enjoyed,  and  the  rents  and  profits 
thereof  received  by  the  said  (purchaser),  his  heirs  and  as- 
signs, accordingly,  without  any  interruption  or  disturbance  by 
him,  the  said  (vendor),  or  any  person  or  persons  whomso- 
ever." '  Or  in  this  form:  "And  that  the  said  (purchaser), 
his  heirs  and  assigns,  shall  and  may  at  all  times  hereafter, 
freely,  peaceably,  and  quietly  enjoy  the  same  without  moles- 
tation or  eviction  of  him,  the  said  (vendor),  or  any  person  or 
persons  whomsoever,"  and  sometimes  the  clause  is  added, 
"lawfully  claiming,  or  to  claim  the  same  by,  from,  or  under 
him,  them,  or  any  of  them,  or  by  or  with  his  or  their  acts, 
means,  consent,  default,  privity,  or  procurement."  '  Where 
taxes  had  been  assessed  against  property  before  the  de- 
fendant owned  it,  it  was  held  that  this  claim  for  taxes  did  not 
come  within  his  covenant,  "against  the  lawful  claims  and 
demands  of  all  persons  claiming  by,  through,  or  under  him, 
and  against  no  other  claims  and  demands."  ^  Where  no  le- 
gal right  to  use  a  sewer  leading  from  the  property  conveyed 
to  and  across  adjoining  premises  owned  by  another  exists,  an 
apparent  right  to  such  use  is  not  a  legal  appurtenance  within 
the  meaning  of  a  deed  containing  a  covenant  of  warranty.* 
When,  at  the  time  of  the  execution  of  a  deed  conveying  with 
a  covenant  of  quiet  enjoyment  a  tract  of  land,  with  a  mill, 
a  dam,  and  pond  for  supplying  the  water,  "with  the  appurte- 

'  Davidson's  Precedents  and  Forms  ^  West  v.  Spaiilding,  11  Met.  556. 

of  conveyancing;   Rawle  on  Cove-  ^  Green  v.  Collins,  86  N.  Y.  246, 

nants,  tit.   (4lli  ed.)  25;  Housman's       40  Am.  Rep.  531. 
Handbook    of    Conveyancing,    1860. 

8  Rawle   on    Covenants,   tit.    (4th 
ed.)   28,  125. 


1726 


THE  LAW   OF  DEEDS. 


[chap.  XXVL 


nances,"  there  were  flush-boards  on  the  dam,  by  the  ase  of 
which  the  pond  overflowed  the  land  adjoining,  of  which  fact 
the  grantee  at  time  of  purchase  was  ignorant,  and  the  owner 
of  the  adjacent  property  recovered  against  the  grantee  for 
overflowing  his  land,  thereby  compelling  him  to  reduce  the 
lieight  of  the  dam,  an  action  may  be  maintained  for  breach  of 
the  covenant.' 


§  922.     Not  broken  by  wrongful  acts  of  others.— By 

the  covenant  for  quiet  enjoyment,  the  grantor  covenants  only 
against  the  acts  of  those  claiming  by  title.  The  covenantee 
has  a  remedy  for  any  tortious  disturbance  by  a  trespasser, 
and  it  is  said  that  he  should  not  also  have  a  remedy  against 
his  covenantor.  Besides,  to  hold  the  grantor  liable  for  a  torti- 
ous disturbance  of  a  stranger  would  be  to  make  him  liable  for 
an  act  he  could  neither  foresee  nor  prevent,  and  it  would  en- 
able the  covenantee  to  make  a  tortious  disturbance  by  collu- 
sion with  another.  Then  the  covenant  generally  expresses 
that  the  covenantee  shall  lawfully  enjoy  the  premises,  and 
contains  no  express  covenant  against  the  tortious  acts  of  oth- 
ers. For  these  reasons,  it  is  settled  that  the  tortious  act  of  a 
stranger  is  not  a  breach  of  this  covenant.^    But  all  acts  of  the 


2  Adams  v.  Conover,  87  N.  Y. 
422,  41  Am.  Rep.  381.  In  Combs 
V.  Combs,  130  Ky.  827,  114  S.  W. 
334,  As  a  widow's  dower  is  a  mere 
life  estate,  it  held  not  to  be  an 
encumbrance  on  lands  of  a  dece- 
dent and  the  existence  of  such  a 
dower  right  was  held  not  a  breach 
of  a  covenant  of  warranty  in  a 
deed  by  an  heir  to  a  coheir  con- 
veying the  interest  formerly  owned 
by  the  decedent. 

3  Underwood  v.  Birchard,  47  Vt 
305;  Wilder  v.  Ireland,  8  Jones  (N. 
C.  88;  Greenby  v.  Wilcocks,  2 
Johns.  1,  3  Am.  Dec.  379;  Davis  v. 
Smith,  5  Ga.  274,  47  Am.  Dec  279; 


Kelly  V.  Dutch  Church,  2  Hill,  111 
Hoppes    V.    Cheek,    21    Ark.    585 
Meeks  v.  Bowerman,   1  Daly,  100 
Beebe  v.  Swartwout,  3  Gilm.   180 
Brick  V.  Coster,  4  Watts  &  S.  499 
Yancey  v.  Lewis,  4  Hen.  &  M.  395 
Noonan  v.  Lee,  2  Black.  507 ;  Bran- 
ger  v.  Manciet,  30  Cal.  624 ;  Playter 
V.   Cunningham,  21    Cal.  232;   Fol- 
Hard    v.    Wallace,    2    Johns,    402; 
Gleason  v.  Smith,  41  Vt.  293 ;  Gard- 
ner v.  Keteltas,  3  Hill,  330,  38  Am. 
Dec.    637;     Surget    v.    Arighi,     11 
Smedes  &  M.  96,  49  Am.  Dec.  46; 
Spear    v.    Allison,    8    Harris,    200; 
Rantin  v.   Robertson,  2   Strob.  336. 
See,  also,  Wotten  v.  Hele,  2  Saund. 


CHAP.    XXVI.] 


COVENANTS. 


1727 


covenantor  himself,  or  of  others  done  at  his  command,  wheth- 
er they  are  wrongful  or  not,  fall  within  this  covenant.*     But 


178,  n;  Lewis  v.  Smith,  9  Mann. 
G.  &  S.  610;  Nokes  v.  James,  Cro. 
Eliz.  675;  Schuylkill  R.  R.  v. 
Schmoele,  7  Smith,  P.  F.  273;  Tis- 
dale  V.  Essex,  Hob.  34;  Knapp  v. 
Marlboro,  34  Vt.  235;  Adams  v. 
Conover,  22  Hun,  424.  See,  also. 
Bedell  v.  Christy,  62  Kan.  760,  64 
Pac.  629,  in  which  the  court  says : 
"An  entry  by  an  intruder,  or  by 
any  one  else,  without  lawful  right 
and  superior  title,  is  not  a  breach 
of  the  covenants,  and  in  such  case 
the  remedy  of  the  grantee  is 
against  the  wrongdoers,  and  not  the 
covenantor." 

*  Sedgwick  v.  Hollenback,  7 
Johns.  376;  Crosse  v.  Young,  2 
Show.  425;  O'Keefe  v.  Kennedy,  3 
Cush.  325;  Mayor  of  New  York  v. 
Mabie,  3  Kern,  156,  64  Am.  Dec. 
538;  Levitzky  v.  Canning,  33  Cal. 
299;  Seaman  &  Browning's  Case,  1 
Leon.  157 ;  Cave  v.  Brooksby,  Jones, 
W.  360.  See,  also,  Cassada  v.  Stab- 
el,  90  N.  Y.  Supp.  533,  98  App.  Div. 
600;  Lloyd  v.  Tomkies,  1  Tenn.  671 ; 
Andrew's  case,  Cro.  Eliz.  214;  Wot- 
ten  V.  Hele,  2  Saund.  180,  n ;  Rawle 
on  Covenants,  135.  In  Levitsky  v. 
Canning,  33  Cal.  299,  where  a  cove- 
nant for  quiet  enjoyment  was  con- 
tained in  a  lease,  Sanderson,  J.,  in 
delivering  the  opinion  of  the  court, 
said :  "In  its  terms  the  covenant 
is  very  general,  but  no  set  formula 
is  required;  any  language  which  ex- 
presses the  intent  to  promise  a  quiet 
and  peaceable  enjoyment  is  suffi- 
cient, however  brief  it  may  be : 
Rawle  on  Covenants,  184.  Whether 
it     is     broad     enough     to     include 


strangers  or  not  is  immaterial,  for 
the  breach  alleged  was  committed, 
if  at  all,  by  the  lessor.  The  cove- 
nant for  quiet  enjoyment  goes  only 
to  the  possession,  and  hence  the 
general  rule  that  there  is  no  breach 
unless  there  has  been  an  eviction 
or  an  evasion,  or  disturbance  of  the 
possession :      Waldron   v.    McCarty, 

3  Johns.  473 ;  Picket  v.  Weaver,  5 
Johns.  120;  Sedgwick  v.  Hollen- 
back, 7  Johns,  380;  Whitbeck  v. 
Cook,  15  Johns.  485,  8  Am.  Dec. 
272;  St.  John  v.  Palmer,  5  Hill, 
601.  The  eviction  need  not  be  by 
legal  process  :    Greenvault  v.  Davis, 

4  Hill,  644.  Nor  need  there  be  a 
complete  ouster  or  expulsion;  an 
invasion,  disturbance,  or  prevention, 
in  whole  or  in  part,  will  constitute 
a  breach  of  the  covenant:  Piatt 
on  Covenants,  327.  There  must  be 
some  act  of  molestation,  affecting, 
to  his  prejudice,  the  possession  of 
the  covenantee.  Forbidding  a  ten- 
ant of  the  covenantee  to  pay  him 
rent  will  not  amount  to  a  breach,  if 
the  tenant,  notwithstanding,  after- 
ward pays  the  rent:  Witchcot  v. 
Nine,  1  Brownl.  81.  But  suppose 
the  tenant  had  not  paid  the  rent,  but 
in  consequence  of  the  covenantor's 
prohibition  had  refused  to  pay? 
The  case  cited  certainly  implies  very 
strongly  that  it  would  then  have 
amounted  to  a  breach,  and  there 
can  be  little  doubt  but  that  it  would 
have  been  so  declared.  An  act  of 
molestation,  whether  committed  by 
the  covenantor  himself  or  by  an- 
'other  at  his  command,  will  alike 
amount   to   a  breach  of   the  cove- 


1728 


THE   LAW    OF   DEEDS. 


[chap.    XXVI. 


a  covenant  against  the  acts  of  a  particular  person,   who  is 
named  in  the  covenant,  will  not  be  limited  to  his  lawful  acts.* 


§  923.  Exercise  of  right  of  eminent  domain. — The  ob- 
ject of  the  covenant  for  quiet  enjoyment  is  to  indemnify  the 
grantee  for  an  eviction  or  disturbance  caused  by  a  defect  in 
the  grantor's  title.  But  where  the  property  is  taken  by  the 
State  by  virtue  of  the  power  of  eminent  domain,  the  vendee 
is  not  deprived  of  his  land  because  there  was  any  defect  in 
the  vendor's  title.  The  title  that  the  grantee  possesses  is,  pre- 
sumably, undoubtedly  good,  and  the  State,  by  the  exercise  of 


nant :  Seamon  v.  Browning,  1  Leon. 
157.  But  from  the  third  count  in 
the  complaint  it  appears  that  the 
defendant  had  slandered  the  plain- 
tiff's possession,  giving  out  and 
pretending  publicly  that  he  had  no 
right  to  the  possession  of  the  de- 
mised premises,  and  that  he  had 
brought  two  actions  at  law  to  re- 
cover the  possession  of  the  premises 
from  the  plaintiff  and  his  tenants, 
under  the  pretense  that  his  lease 
had  expired.  That  in  consequence 
of  these  actions  brought  against 
himself  and  his  tenants,  he  had 
been  put  to  great  expense  in  de- 
fending the  same,  and  his  tenants 
had  quit  the  premises,  leaving  the 
same  vacant,  and  that  he  had  been 
unable  to  rent  the  same  to  other 
parties,  by  reason  of  their  doubts  as 
to  the  lawfulness  of  his  possession, 
caused  by  the  acts  of  the  defendant 
in  bringing  said  suits,  and  publicly 
declaring  that  the  possession  of  the 
plaintiff  was  unlawful,  and  that  he 
had  no  legal  right  to  let  the  prem- 
ises. Was  this  a  breach  of  his 
covenant  within  the  rule  already 
stated  and  the  cases  which  we  have 


cited  ?  That  it  was  does  not  admit 
of  doubt.  Those  acts,  if  performed 
by  him,  were  as  much  a  molestation, 
disturbance,  and  invasion  of  the 
plaintiff's  possession  as  a  taking  by 
the  shoulders  and  a  forcible  evic- 
tion of  the  plaintiff's  tenants  would 
have  been.  The  character  of  the 
act  must  be  determined  by  the  re- 
sults which  follow  it,  and,  in  view 
of  the  results  which  are  alleged  to 
have  followed  the  acts  of  the  de- 
fendant, there  can  be  no  question 
that  he  disturbed  and  interrupted 
the  possession  of  the  plaintiff  to  his 
injury,  which  is  precisely  what  he 
had  covenanted  not  io  do." 

5  Nash  v.  Palmer,  5  Maule  &  S. 
374;  Foster  v.  Mapes,  Cro.  Eliz. 
212.  And  see  Rawle  on  Covenants, 
139;  Perry  v.  Edwards,  1  Strange, 
400;  Fowle  v.  Welch,  1  Barn.  &  C. 
29;  Patton  v.  Kennedy,  1  Marsh.  A. 
K.  389,  10  Am.  Dec.  744;  Pence 
v.  Duvall,  9  Mon.  B.  49.  Another 
exception  to  the  general  rule  is 
where  the  language  of  the  covenant 
is  "claiming  or  pretending  to 
claim":  Chaplain  v.  Southgate,  10 
Mod.  383. 


CHAP.    XXVI.] 


COVENANTS. 


1729 


this  power,  takes  it  away  from  him,  making  him  just  com- 
pensation. If  the  exercise  of  the  right  of  eminent  domain 
were  a  breach  of  the  covenant  for  quiet  enjoyment,  the  re- 
sult would  be  that  the  grantee  would  receive  full  compensa- 
tion from  the  State  for  his  premises,  and,  at  the  same  time, 
would  have  the  right  to  recover  from  his  grantor.  But  the 
covenantee  can  have  no  such  right.  His  remedy  is  to  look 
to  the  provisions  of  the  legislature  made  to  give  him  compen- 
sation for  his  land,  and  not  to  the  covenant  for  quiet  enjoy- 
ment. It  is  therefore  settled  that  this  covenant  is  not  broken 
by  the  exercise  of  the  right  of  eminent  domain.^ 

§  924.  Actual  eviction. — To  operate  as  a  breach  of  the 
covenant  for  quiet  enjoyment,  an  eviction,  as  it  is  technically 
understood,  is  necessary.  Legal  process,  however,  is  not  es- 
sential to  an  evictioru"'^    Where  a  grantee  who  has  been  evict- 


8  Frost  V.  Earnest,  4  Whart.  86 ; 
Ellis  V.  Welch,  6  Mass.  246,  4  Am. 
Dec  122;  Bailey  v.  Miltenberger, 
7  Casey,  37;  Brimmer  v.  Boston, 
102  Mass.  19;  Folts  v.  Huntley,  7 
Wend.  210;  Dobbins  v.  Brown,  2 
Jones,  75.  And  see  Schuylkill  R. 
R.  V.  Schmoele,  7  Smith,  P.  F.  273 ; 
Dyer  v.  Wightman,  16  Smith,  P. 
F.  427.  Where  slaves  have  been 
sold  with  covenants,  it  has  been 
held  that  they  were  not  broken  by 
emancipation:  Whitworth  v.  Car- 
ter, 43  Miss.  61 ;  Osborn  v.  Nichol- 
son, 13  Wall.  655,  20  L.  ed.  693; 
Philips  V.  Evans,  38  Mo.  305 ;  Fitz- 
patrick  v.  Hearne,  44  Ala.  171,  4 
Am.  Rep.  128;  Mayfield  v.  Barnard, 
43  Miss.  270;  Walker  v.  Gatlin,  12 
Fla.  9;  Haskill  v.  Sevier,  25  Ark. 
152;  Willes  v.  Halliburton,  25  Ark. 
173.  See,  also.  Weeks  v.  Grace, 
194  Mass.  296,  9  L.R.A.(N.S.)  1092 
and  note.  80  N.  E.  220.:  Porter  v. 
Deeds,  Vol.  H.— 109 


Ralston,  6  Bush,  655 ;  Hand  v. 
Armstrong,  34  Ga.  232 ;  Bass  v. 
Ware,  34  Ga.  386.  In  Osborn  v. 
Nicholson,  supra,  Mr.  Justice 
Sw^ayne  said :  "Emancipation  and 
eminent  domain  work  the  same  re- 
sult as  regards  the  title  and  posses- 
sion of  the  owner.  Both  are  put  an 
end  to.  Why  should  the  seller  be 
liable  in  one  case  and  not  in  the 
other?  We  can  see  no  foundation 
in  reason  or  principle  for  such 
a  claim." 

'  Greenvault  v.  Davis,  4  Hill,  645 ; 
Parker  v.  Dunn,  2  Jones  (N.  C), 
204;  Ware  v.  Lithgow,  71  Me  62; 
Coble  v.  Wellborn,  2  Dev.  390; 
Leary  v.  Durham,  4  Ga.  593 ;  INIoore 
V.  Frankenfield,  25  Minn.  540.  And 
see,  also.  Grist  v.  Hodges,  3  Dev. 
200;  Booth  v.  Star,  5  Day,  282,  5 
Am.  Dec.  149;  Funk  v.  Creswell, 
5  Clarke,  86;  Hagler  v.  Simpson, 
Busb.  386. 


1730 


THE   LAW    OF   DEEDS. 


[chap.    XXVI. 


ed  from  part  of  the  land  brings  an  action  upon  the  covenants, 
the  fact  that  he  took  possession  of  the  land  described  in  the 
deed,  and  made  no  complaint  as  to  the  quantity  of  land  con- 
veyed, accepting  the  same  as  a  fulfillment  of  the  covenants 
alleged  to  be  broken,  is  no  defense  to  the  action.'  The  cove- 
nantee is  not  obliged  to  withhold  the  possession  from  the 
rightful  owner,  nor  to  enter  into  litigation  with  the  party 
who  has  the  title.  He  may  surrender  his  possession  to  the 
true  owner,  and  this  will  be  a  sufficient  ouster  to  enable  him 
to  recover  on  his  covenant.^  But  to  have  this  effect  there  must 
have  been  a  hostile  assertion  of  the  paramount  title.*  In  a 
case  in  Illinois,  Mr.  Justice  Eaton,  after  adverting  to  the  fact 
that  there  might  be  a  constructive  eviction,  as  where  the  prera- 


•  Walterhouse  v.  Garrard,  70  Ind. 
400.  The  court  says  in  Durbin  v. 
Shenners,  133  Wis.  134,  113  N.  W. 
421:  "The  covenant  for  quiet  en- 
joyment is  prospective  in  its  opera- 
tion, and  is  not  breached  by  the 
mere  existence  of  an  incumbrance, 
nor,  in  fact,  by  anything  short  of 
eviction  actual  or  constructive  from 
a  whole  or  a  part  of  the  premises : 
Falkner  v.  Woodard,  104  Wis.  608, 
80  N.  W.  940."  See,  also,  Hayden 
V.  Patterson,  39  Colo.  15,  88  Pac. 
437. 

»Axtel  V.  Chase,  83  Ind.  546; 
Fowler  v.  Poling,  6  Barb.  168; 
Drew  v.  Towle,  10  Post.  (N.  H.) 
537,  64  Am.  Dec.  309;  Loomis  v. 
Bedel,  11  N.  H.  83;  Woodward  v. 
Allen,  3  Dana,  164;  Stone  v.  Hook- 
er, 9  Cowen,  157;  Haffey  v.  Bir- 
chetts,  11  Leigh.  83;  Sterling  v. 
Peet,  14  Conn.  254;  Poyntell  v. 
Spencer,  6  Barr.  254;  Patten  v. 
McFarlane,  3  Pa.  425.  And  see 
Slater  v.  Rawson,  1  Met.  450,  455 ; 
Steiner  v.  Baughman,  2  Jones.  106 ; 
Ferriss  v.  Harshea,   1   Mart.  &  Y. 


SO,  17  Am.  Dec.  782;  McDowell  v. 
Hunter,  Dud.  (Ga.)  4;  Blyden- 
burgh  V.  Cotheal,  1  Duer,  196; 
Hamilton  v.  Cutts,  4  Mass.  350,  3 
Am.  Dec.  222;  Leary  v.  Durham, 
4  Ga.  593,  606.  But  see  Beebe  v. 
Swartwout,  3  Gilm.  182,  183;  Hoy 
V.  Taliaferro,  8  Smedes  &  M.  541 ; 
Dennis  v.  Heath,  11  Smedes  &  M. 
218,  49  Am.  Dec.  51. 

1  Knepper  v.  Kurtz,  8  Smith,  P. 
F.  480;  Sprague  v.  Baker,  17  Mass. 
590 ;  Dupuy  v.  Roebuck,  7  Ala.  488. 
Where  the  only  covenant  in  a  deed 
is  one  for  quiet  enjoyment,  the  gran- 
tee who  has  remained  in  possession 
since  the  execution  of  the  deed  can 
not  defend  an  action  to  foreclose  a 
purchase  money  mortgage  on  the 
ground  that  his  vendor  had  no  title 
to  a  portion  of  the  land,  the  theory 
being  that  it  cannot  be  assumed  that 
the  vendee  has  suflfered  or  ever  will 
suffer  any  actual  damage  by  reason 
of  such  want  of  title:  Falkner  v. 
Hackett,  104  Wis.  608,  80  N.  W. 
940. 


CHAP.    XX\^.]  COVENANTS.  1731 

ises  were,  at  the  time  of  the  execution  of  the  covenant,  in  the 
possession  of  another,  holding  them  under  a  paramount  title, 
in  which  case  the  covenant  would  be  broken  as  soon  as  made, 
proceeded  to  say :  "But  this  is  not  the  only  case  of  construc- 
tive eviction  which  may  now  be  considered  as  well  settled  by 
authority,  and  sustained  by  sound  principles  of  morality  and 
justice.  If  the  covenantee  be  in  the  actual  possession  of  the 
estate,  he  has  the  right  to  yield  that  possession  to  one  who 
claims  it  under  a  paramount  title,  without  resisting  him  by 
force  or  litigation;  and  this  is  sustained  by  the  same  reasons 
of  justice  and  good  government  which  are  applicable  to  the 
first  exception.  This,  however,  is  not  to  be  understood  as 
holding  that  the  mere  existence  of  a  paramount  title  consti- 
tutes a  breach  of  the  covenant,  or  that  it  will  authorize  the 
covenantee  to  refuse  to  take  possession  when  it  is  quietly  ten- 
dered to  him,  or  when  he  can  do  so  peaceably,  and  then  claim 
that  by  reason  of  such  paramount  title  and  his  want  of  pos- 
session, the  covenant  is  broken;  nor  will  it  justify  him  in 
abandoning  the  possession  without  demand  or  claim  by  the 
one  holding  the  real  title.  His  possession  under  the  title  ac- 
quired with  the  covenant  is  not  disturbed  by  the  mere  exist- 
ence of  that  title ;  and  he  has  no  right  to  assume  that  it  ever 
will  be,  until  he  actually  feels  its  pressure  upon  him.  He  must 
act  in  good  faith  toward  his  covenantor,  and  make  the  most 
of  whatever  title  he  has  acquired,  until  resistance  to  the  para- 
mount title  ceases  to  be  a  duty  to  himself  or  his  covenantor."  ^ 
The  surrender  must  be  made  to  the  holder  of  the  paramount 
title,  and  not  to  the  vendor.'  Where  the  land  is  unoccupied, 
and  a  covenant  of  warranty  is  executed,  and  the  land  remains 
vacant,  and  the  owner  of  the  true  title,  for  the  purpose  of  de- 
termining the  title,  commences  actions  of  ejectment,  the  cove- 
nantee may  waive  the  objection  of  his  nonoccupation  to  this 

8  Moore  v.  Vail,  17  111.  190.     And  '  Axtel  v.   Chase,  83   Ind.   546. 

see,    also,    Hagler    v.    Simpson,    I 
Busb.   386. 


1732  THE  LAW    OF   DEEDS.  [CHAP.    XXVL 

form  of  action.  He  may  try  the  title  in  these  actions,  and  if 
judgment  be  awarded  against  him  on  the  question  of  title,  he 
may  abandon  any  further  claim  to  the  land,  and  a  breach  of 
the  covenant  results.*  Where  a  grantee  has  never  secured,  nor 
been  able  to  secure,  possession  of  the  land  conveyed,  by  rea- 
son of  the  existence  of  a  paramount  title  in  another,  and  pos- 
session by  him,  these  facts  are  equivalent  to  an  eviction.^ 

§  925.  Purchaser  has  burden  of  proof  if  he  yields  to 
adverse  title. — If  the  purchaser  refuses  to  yield  possession 
to  the  paramount  title  until  it  has  been  established  by  a  judg- 
ment, and  the  covenantor  has  been  properly  notified  of  the 
suit,  then  the  validity  of  the  paramount  title  is  conclusively 
shown  by  the  judgment  or  decree  when  introduced  in  evi- 
dence.® But  if  he  elects  to  yield  to  the  paramount  title  before 
it  has  been  judicially  established,  he  does  so  at  his  peril.  He 
has,  in  such  a  case,  the  burden  of  proof  when  attempting  to 
recover  from  his  covenantor,  and  must  clearly  establish  the 
adverse  title  which  he  has  thus  recognized.'  "While  he  is  not 
bound  to  contest  where  the  contest  would  be  hopeless,  or  re- 
sist where  resistance  would  be  wrong,  yet  always  where  he 
yields  without  a  contest  or  a  resistance,  he  must  take  upon 
himself  the  burden  of  showing  that  the  title  was  paramount, 
and  that  he  yielded  the  possession  to  the  pressure  of  that  title. 
Whenever  he  does  yield  quietly,  he  does  so  at  his  peril."  *  If 
in  an  action  for  a  breach  of  a  covenant  of  quiet  enjoyment  the 

4AlHs  V.  Ninirger,  25  Minn.  525.  50  Am.  Dec.  788;  Callis  v.  Coghill, 

SBlondeau   v.    Sheridan,   81    Mo.  9  Lea    (Tenn.),   137;   Hamilton  v. 

545.     See,  also,  m.  this  connection,  Cutts,   4    Mass.    350,    3    Am.    Dec. 

Carpenter  V.  Carpenter,  88  Ark.  169,  222;   Thomas  v.   Stickle,  32  Iowa, 

113  S.  W.  1032.  76;  Stone  v.  Hooker,  9  Cow.  157; 


6  Miner  v.  Clark,  15  Wend.  427 
Bridger  v.  Pierson,  45  N.  Y.  603 
Wilson  V.   McElwee,   1   Strob.  65 


Peck  V.  Hensley,  20  Tex.  678; 
Greenvault  v.  Davis,  4  Hill,  643; 
Witty  V.  Hightower,  12  Smedes  & 


Middleton   v.    Thompson,    1    Spear,       M.  481. 

67.  SxMoore  v.  Vail,   17  111.   190,  per 

'George  v.  Putney,  4  Cush.  355,       Eaton,  J. 


CHAP.    XXVI.]  COVENANTS.  1733 

plaintiff  does  not  claim  interest  on  the  purchase  price,  the  de- 
fendant may  be  refused  credit  for  rent.' 

§  926.  Comments. — This  rule  is  obviously  a  reason- 
able one.  The  covenantor  must,  certainly,  have  an  opportu- 
nity of  contesting  the  validity  of  the  title  alleged  to  be  para- 
mount title.  Where  the  covenantee  is  sued  and  the  covenantor 
is  notified  and  thus  enabled  to  defend,  it  is  his  own  fault  if 
he  does  not  do  so,  and  he  ought  to  be  bound  by  the  judgment. 
But  where  the  covenantee  yields  possession  to  what  he  is 
pleased  to  suppose  is  a  superior  title,  he  should  be  compelled 
to  make  out  that  title  with  as  great  a  degree  of  particularity 
as  if  he  were  suing  for  the  possession  of  the  premises. 

§  927.  Premises  in  possession  of  another. — If  at  the 
time  the  conveyance  is  executed  the  premises  are  in  the  pos- 
session of  a  person  other  than  the  grantor,  claiming  by  a  para- 
mount title,  the  covenant  for  quiet  enjoyment  or  warranty  is 
broken  at  once  by  this  very  fact.*  If  this  were  not  so,  the 
only  redress  which  the  covenantee  could  have,  would  be  either 
to  become  a  trespasser  by  entering  or  to  bring  a  needless  suit. 
It  is  therefore  settled  law,  that  there  is  an  eviction  eo  instanti, 
if  the  premises  are  actually  in  the  possession  of  a  third  person, 

sWyche  v.  Ross,  119  N.  C.  174.  Caldwell  v.  Kirkpatrick,  6  Ala.  60, 

25  S.  E.  878.    See,  also,  as  to  dam-  41    Am.    Dec.    36;    Cummings    v. 

ages:     Holmes  v.  Seaman,  72  Neb.  Kennedy,  3  Litt.  123,  14  Am.  Dec. 

300,  101  N.  W.  1030.  45;  Loomis  v.  Bedel,  11  N.  H.  74; 

iMurphy  v.  Trice,  48  Mo.  250;  Small  v.  Reeves,  14  Ind.  164;  Rea 

Grist  V.  Hodges,  3  Dev.  200;  Russ  v.  Minkler,  5  Lans.  296;  University 


V.  Steele,  40  Vt.  315;  Duvall  v, 
Craig,  2  Wheat.  62,  4  L.  ed.  184 
Park  V.  Bates,  12  Vt.  381,  36  Am 
Dec.  347;  Clark  v.  Conroe,  38  Vt 
475  ;  Phelps  v.  Sawyer,  1  Aiken,  318 
Noonan  v.  Lee,  2  Black.  507;  Bar- 
nett  V.  Montgomery,  6  Mon.  328 
Curtis  v.  Deering,  12  Me.  501 
Blanchard  v.  Blanchard,  48  Me.  174; 


of  Vermont  v.  Joslyn,  21  Vt.  522; 
Wilder  v.  Ireland,  8  Jones  (N.  C), 
87.  And  see  Randolph  v.  Meeks, 
Mart  &  Y.  58;  Miller  v.  Halsey, 
2  Green,  59;  Playter  v.  Cunning- 
ham, 21  Cal.  229;  Witty  v.  High- 
tower,  12  Smedes  &  M.  478 ;  Banks 
V.  Whitehead,  7  Ala.  83. 


1734 


THE  LAW   OF  DEEDS. 


[chap.    XXVI. 


claiming  under  a  paramount  title  at  the  time  the  covenant  is 
made.  Still,  some  decisions  may  be  found  to  the  contrary, 
which  hold  or  countenance  the  idea  that  the  covenantee  in  a 
case  of  this  kind  cannot  recover  on  the  covenant  for  quiet 
enjoyment.^  The  possesion,  however,  must  be  under  an  ac- 
tually paramount  title,  and  not  merely  an  adverse  possession.' 

§  928.  Purchase  of  paramount  title. — As  has  been  ob- 
served, the  purchaser  may  surrender  possession  to  the  owner 
of  the  paramount  title,  and  this  is  an  eviction,  which  entitles 
him  to  a  recovery  on  his  covenant.  But  he  may  also  purchase 
the  paramount  title,  in  a  proper  case,  without  yielding  posses- 
sion, and  be  entitled  to  recover  from  his  covenantor.*  In  a 
case  in  California,  Mr.  Justice  Temple  observed,  after  an  ex- 
amination of  a  number  of  cases:  "The  true  rule  deducible 
from  the  recent  cases  is,  that  the  covenant  is  broken  when- 
ever there  has  been  an  involuntary  loss  of  possession  by  rea- 
son of  the  hostile  assertion  of  an  irresistible  paramount  title. 
Nor  is  it  necessary  that  the  paramount  title  should  have  been 
established  by  a  judgment  before  the  covenantee  will  be 
authorized  to  surrender  the  possession.    It  is  enough  that  the 


2  St.  John  V.  Palmer,  5  Hill,  601 ; 
Kortz  V.  Carpenter,  5  Johns.  120; 
Day  V.  Chism,  10  Wheat.  452,  6 
L.  ed.  364.  See  Holder  v.  Taylor, 
Hob.  12. 

3  Beebe  v.  Swartwout,  3  Gilm. 
183;  Phelps  v.  Sawyer,  1  Aiken, 
57;  Rindskopf  v.  Farmers'  Loan 
Co.,  58  Barb.  49;  Jenkins  v.  Hop- 
kins, 8  Pick.  350;  Moore  v.  Vail, 
17  111.  185.  The  owner  of  wild 
and  uncultivated  lands  is  considered 
in  possession,  on  the  ground  that 
that  legal  seisin  carries  with  it  the 
possession,  provided  that  they  are 
not,  at  the  time,  in  the  actual  adverse 
possession  of  another:  Proprietors 
of  Kennebeck  v.  Call,!  Mass,  484; 


Bush  V.  Bradley,  4  Day,  306;  Van 
Brunt  v,  Schenck,  11  Johns.  385; 
Mather  v.  Trinity  Church,  3  Serg. 
&  R.  514,  8  Am.  Dec.  663. 

*  Turner  v.  Goodrich,  26  Vt.  709; 
Kansas  Pacific  Ry.  Co.  v.  Dun- 
meyer,  24  Kan.  725 ;  White  v.  Whit- 
ney, 3  Met.  81 ;  Sprague  v.  Baker, 
17  Mass.  586;  Bemis  v.  Smith,  10 
Met.  194;  Stewart  v.  Drake,  4 
Halst.  139;  Estabrook  v.  Smith,  6 
Gray,  572,  66  Am.  Dec.  445;  Kelly 
v.  Low,  18  Me.  244;  Cole  v.  Lee, 
30  Me.  392;  Haflfey  v.  Birchetts, 
11  Leigh,  88;  Claycomb  v.  Munger, 
51  111.  374;  Gunter  v.  Williams,  44 
111.  572;  Whitney  v.  Dinsraorc,  6 
Gush.  124. 


CHAP.    XXVI.]  COVENANTS.  1735 

true  owner  asserts  his  title,  and  demands  the  possession.  If 
it  is  his  right  to  have  possession,  it  certainly  is  the  duty  of 
the  covenantee  to  surrender  it  to  him.  The  covenant  is  for 
quiet  possession,  and  against  a  rightful  eviction.  To  consti- 
tute a  breach  of  this  covenant,  it  cannot  be  required  that  the 
covenantee  should  maintain  a  wrongful  possession,  and  sub- 
ject himself  to  be  treated  as  a  trespasser.  The  object  of  a 
suit  by  the  true  owner  would  be  to  compel  the  covenantee  to 
do  that  which  he  ought  to  have  done  without  suit.  It  could 
not  have  been  contemplated  by  the  parties  to  the  covenant  that 
the  covenantee  should  refuse  to  do  what  the  law  enjoins  upon 
him  as  a  duty.  Nor  can  we  perceive  how  the  covenantor  would 
be  benefited  by  an  eviction  under  a  judgment.  It  was  never 
considered  necessary  that  the  covenantor  should  have  notice  of 
the  pendency  of  the  suit.  The  judgment  might  be  obtained 
without  any  real  trial  of  the  merits  of  the  title;  and,  besides, 
in  the  action  upon  the  covenant,  it  is  incumbent  upon  the  plain- 
tiff to  establish  that  the  title  to  which  he  has  submitted  is  a 
paramount  title.  Although  there  must  be  an  eviction,  it  is 
not  necessary  that  there  should  be  an  actual  dispossession  of 
the  grantee.  If  the  paramount  title  is  so  asserted  that  he  must 
yield  to  it  or  go  out,  the  covenantee  may  purchase  or  lease  of 
the  true  owner,  and  this  will  be  considered  a  sufficient  eviction 
to  constitute  a  breach.  He  then  no  longer  claims  under  his 
former  title.  So  far  as  that  title  is  concerned,  he  has  been 
evicted,  and  is  in  under  the  paramount  title."  ^  A  mortgagee 
threatened  to  sue  the  purchaser  of  the  land,  whose  deed  con- 
tained covenants  of  warranty  and  quiet  enjoyment,  and  to  pre- 
vent a  suit,  the  purchaser  paid  the  amount  of  the  mortgage. 


l/zt 


5  In  McGary  v.  Hastings,  39  Cal.  586 ;    Rawle   on   Ccvenants,  278,   et 

360,    366,    2   Am.    Rep.    456,    citing  seq.,    and    cases    cited ;    Noonan    v. 

Sugden  on  Vendors,  745,  and  note ;  Lee,  2  Black,  507 ;  Funk  v.  Cress- 

Lomis  V.  Bedell,  11  N.  H.  74;  Ham-  well,  5  Clarke,  86;  Brady  v.  Spurck, 

ilton  V.  Cutts,  4  Mass.  349,  3  Am.  27   111.   478;    Stewart   v.   Drake,   4 

Dec.   222;   Turner  v.   Goodrich,  26  Halst.    139. 
Vt  709 ;  Sprague  v.  Baker,  17  Mass. 


1736 


THE  LAW    OF  DEEDS, 


[chap.    XXVI. 


The  court  said :  "The  plaintiff  has  been  disturbed  in  the  en- 
joyment of  his  possession,  and  he  has  been  compelled  to  pur- 
chase in  another  title  for  his  own  security,  which  we  think 
very  clearly  has  been  a  lawful  interruption,  and  a  breach  of 
the  covenant  of  quiet  enjoyment."  °  This  is  believed  to  be 
the  general  rule  supported  by  the  weight  of  authority,  al- 
though decisions  may  be  found  which  countenance  or  uphold 
a  different  doctrine.'^ 


«  Sprague  v.  Baker,  17  Mass.  590. 
See,  also,  Harding  v.  Larkin,  41 
111.  422;  McConnell  v.  Downs,  48 
111.  271. 

'Thus,  in  Waldron  v.  McCarty, 
3  Johns.  471,  a  demurrer  was  inter- 
posed to  a  complaint  which  alleged 
that  the  premises  were  encumbered 
with  a  mortgage  at  the  time  the 
deed  to  plaintiff  was  executed ;  that 
afterward  they  were  sold  under  a 
decree  of  foreclosure  of  the  mort- 
gage, and  the  plaintiff  had  been 
compelled  to  purchase  them  to  pre- 
vent his  ouster.  The  demurrer  was 
sustained  on  the  ground,  as  stated 
by  the  court,  that  "the  covenant  for 
quiet  enjoyment  has  reference 
merely  to  the  undisturbed  posses- 
sion, and  not  to  the  grantor's  title." 
The  court  further  said  in  its  opin- 
ion, per  Spencer,  J.:  "From  prece- 
dents, and  as  no  authority  has  been 
shown  that  the  covenant  for  quiet 
enjoyment  is  broken  by  any  other 
acts  than  an  entry  and  eviction,  or 
a  disturbance  of  a  possession  itself, 
we  are  of  opinion  that  the  demur- 
rer is  well  taken."  See,  also,  Witty 
V.  Hightower,  12  Smedes  &  M.478; 
Hannah  v.  Henderson,  4  Ind.  174; 
Reasoner  v.  Edmundson,  5  Ind.  393 ; 
Burrus  v.  Wilkinson,  31  Miss.  537; 
Hunt  V.  Amidon,  1  Hill,  147.    The 


buying  in  of  an  invalid  tax  claim 
will  not  entitle  the  purchaser,  who 
is  the  grantee  in  the  warranty 
deed,  to  recover  the  amount  paid 
from  his  warrantor:  Bruington  y. 
Barber,  63  Kan.  28,  64  Pac  963 
(citing   text). 

The  case  of  Waldron  v.  McCar- 
ty, 3  Johns.  471,  has  been  severely 
criticised.  In  McGary  v.  Hastings, 
39  Cal.  360,  364;  2  Am.  Rep.  456, 
it  is  said :  "The  principal  question 
involved  in  this  appeal,  is  whether 
the  acts  set  out  in  the  complaint 
constitute  a  breach  of  the  covenant 
of  quiet  enjoyment.  The  defendant 
contends  that  there  must  have  been 
an  actual  eviction  by  a  title  para- 
mount, under  the  judgment  of  a 
competent  court.  Many  early  cases, 
especially  in  the  State  di  New 
York,  seem  to  sustain  this  view, 
and  two  cases  are  cited  from  our 
own  reports.  The  first  is  the  case 
of  Fowler  v.  Smith,  2  Cal.  39. 
That  was  an  attempt  to  resist  the 
payment  of  purchase  money  for 
premises  conveyed,  without  special 
warranty,  prior  to  the  adoption  of 
the  common  law  in  this  State,  and 
it  was  claimed  that  by  the  civil  law 
certain  covenants  were  implied. 
Justice  Murray,  in  discussing  the 
question,-  said    that    no    covenants 


CHAP.    XXVI.] 


COVENANTS. 


1737 


§  929.  Redemption  on  tax  sales. — In  a  case  in  New 
York,  a  deed  was  executed  for  certain  land,  with  a  covenant 
for  quiet  enjoyment.     A  portion  of  it  had  been  before  the 


were  implied,  except  those  for  quiet 
possession,  and  that  to  constitute  a 
breach  of  that  covenant,  there  must 
be  an  eviction  under  a  judgment 
of  a  competent  court,  founded  upon 
a  paramount  title.  He  relies  upon 
the  case  of  Waldron  v.  McCarty, 
3  Johns.  471.  In  that  case,  there  was 
a  foreclosure  and  sale  of  the  prem- 
ises, under  a  mortgage  which  exist- 
ed at  the  time  of  the  covenant.  The 
covenantee  purchased  at  this  sale, 
and  brought  suit  upon  his  covenant. 
The  court  held  that  there  had  been 
no  eviction.  It  was  not  necessary 
in  that  case  to  hold  that  eviction 
must,  in  all  cases,  be  by  legal  proc- 
ess. This  is  a  leading  case  upon 
that  side  of  the  question,  and  was 
followed  by  several  others  in  that 
State.  When  understood,  however, 
as  establishing  the  general  proposi- 
tion that  there  must  be  an  actual 
eviction  under  a  judgment,  these 
cases  are  contrary  to  the  more  re- 
cent decisions  of  that  State,  as  we 
shall  presently  show.  The  other 
case  from  our  reports  is  Norton 
V.  Jackson,  5  Cal.  262.  It  was  a 
suit  for  the  purchase  money,  and 
was  resisted  on  the  ground  that 
there  had  been  a  breach  of  cove- 
nant of  warranty,  which  for  all  the 
purposes  of  this  case  is  identical 
with  the  covenant  for  quiet  enjoy- 
ment. The  purchaser  was  still  in 
possession.  Mr.  Justice  Heyden- 
feldt,  in  delivering  the  opinion  of 
the  court,  says :  'There  is  no  breach 
of  the  covenant  without  eviction, 
because  there  would  be  no  correct 


measure  of  damages.  It  would  be  a 
hardship  to  allow  the  purchaser  to 
remain  in  possession,  and  recover 
the  purchase  money  also.'  In  this 
case,  there  had  been  no  eviction, 
either  actual  or  constructive ;  the 
purchaser  was  still  in  possession 
under  the  title  of  his  covenantor, 
and  no  question  can  be  raised  as  to 
the  correctness  of  the  decision.  The 
broad  statement  in  the  conclusion 
of  the  opinion,  that  there  must  be 
an  eviction,  by  process  of  law,  can- 
not be  sustained  by  authority,  either 
in  this  country  or  in  England :  Copp 
V.  Wellburn,  2  Dev.  390;  Foster 
V.  Pierson,  4  Lev.  617;  Stewart  v. 
Drake,  4  Halst.  141 ;  Rawle  on  Cov- 
enants, 242.  Indeed,  there  are  many 
cases  where  an  eviction  without 
process  of  the  law  has  always  been 
considered  a  breach  of  the  cove- 
nant, as  in  the  case  where  the  true 
owner  at  common  law  had  the 
right  to  enter  without  suit,  and 
where  the  covenantee  was  never 
able  to  obtain  possession  of  the 
granted  premises  which  were  in 
possession  of  the  owner  of  the 
paramount  title.  The  case  of  Wal- 
dron v.  McCarty,  as  understood,  is 
contrary,  to  the  doctrine  laid  down 
in  Greenvault  v.  Davis,  4  Hill,  643. 
In  that  case  Mr.  Justice  Bronson 
says :  'There  are  some  dicta  in  the 
books  that  there  must  be  an  evic- 
tion by  process  of  law,  but  I  have 
met  with  no  case  where  it  was  so 
adjudged.'  And  again:  'Upon  prin- 
ciple, I  can  see  no  reason  for  re- 
quiring an  eviction  by  legal  proc- 


1738 


THE  LAW   OF  DEEDS. 


[chap.    XXVI. 


execution  of  the  deed  sold  for  unpaid  taxes.  On  the  last  day 
for  the  redemption  of  the  land  the  purchaser  paid  the  amount 
of  taxes  and  accruing  costs.     The  plaintiff  brought  an  action 


ess.  Whenever  the  grantee  is  oust- 
ed of  possession  by  one  having  a 
lawful  right  to  the  property  para- 
mount to  the  title  of  the  grantor,  the 
covenants  of  warranty  and  for  quiet 
enjoyment  are  broken,  and  the  cov- 
enantee may  sue.  .  .  .  When 
the  grantee  surrenders  or  suffers 
the  possession  to  pass  from  him 
without  a  legal  contest,  he  takes 
upon  himself  the  burden  of  show- 
ing that  the  person  who  entered 
had  a  title  paramount  to  that  of  his 
grantor.  But  there  is  no  reason 
why  such  surrender,  without  the 
trouble  and  expense  of  a  lawsuit, 
should  deprive  him  of  a  remedy  on 
the  covenant.  The  grantor  is  not 
injured  by  such  an  amicable  ouster. 
On  the  contrary,  it  is  a  benefit  to 
him,  for  he  thus  saves  the  expenses 
of  an  action  against  the  grantee  to 
recover  the  possession.  It  may  be 
inferred  in  this  case  that  the  prem- 
ises were  unoccupied.  Blodget 
then  entered  and  still  holds  the 
land.  This  was  an  ouster  or  dis- 
seisin of  the  plaintiff,  and  he  is  well 
entitled  to  an  action  on  the  defend- 
ant's covenant.'  In  the  case  of 
Fowler  v.  Poling,  6  Barb.  165,  Mr. 
Justice  Edmunds,  after  reviewing 
the  decisions  in  that  State,  says : 
From  these  conflicting  authorities, 
I  deduce  the  true  rule  in  this  State 
to  be  that  there  must  be  an  actual 
disturbance  of  the  possession ;  and 
where  the  covenantee  is  rightfully 
out  of  possession,  either  by  due 
process  of  law,  or  by  an  entry  of 
the  rightful  owner,  or  by  a  surren- 


der to  one  having  a  paramount  title, 
there  is  an  eviction,  the  covenant 
is  broken,  and  an  action  will  lie.*  ** 

In  Brown  v.  Dickerson,  2  Jones, 
372,  it  is  said  by  Burnside,  J :  "The 
rule,  as  settled  in  Waldron  v.  M:- 
Carty,  3  Johns.  471,  has  not  met  the 
approbation  of  the  profession  in 
many  States  of  this  Union.  It  is 
too  technical,  and  puts  a  grantee  to 
unnecessary  expense  and  trouble, 
and  has  been  properly  overruled  in 
many  of  the  courts." 

In  Loomis  v.  Bedel,  11  N.  H.  74, 
the  opinion  was  delivered  by  Par- 
ker, C.  J.,  who  said:  "It  is  well  set- 
tled that  an  entry  under  the  para- 
mount title  amounts  to  a  breach  of 
a  covenant  of  warranty;  and  the 
grantee  may,  upon  demand,  surren- 
der the  land  to  a  claimant  having  a 
good  title,  and  resort  to  his  action : 
Hamilton  v.  Cutts,  4  Mass.  349,  3 
Am.  Dec.  222.  But  in  Waldron  v. 
McCarty,  3  Johns.  471,  where  there 
was  an  outstanding  mortgage  at 
the  time  of  the  conveyance  to  the 
plaintiff,  and  the  premises  were 
afterward  sold  upon  the  mortgage 
in  pursuance  of  a  decree  of  the 
court  of  chancery,  and  purchased 
by  the  plaintiff,  who  then  brought 
his  action  upon  the  covenant  of 
warranty  in  his  deed,  the  court  held 
that  an  entry  and  expulsion  were 
necessary,  and  that  there  was  no 
sufficient  eviction  or  disturbance  of 
the  possession.  In  our  opinion  this 
is  carrying  the  principle  too  far. 
If  the  claimant  holding  the  para- 
mount title  should  enter  upon  the 


CHAP.    XXVI.]  COVENANTS.  1739 

on  his  covenant,  but  it  was  held  that  in  the  absence  of  a  cove- 
nant against  encumbrances  the  plaintiff  could  not  acquire  a 
claim  against  the  defendant  by  making  a  voluntary  payment 
without  the  defendant's  request.*  "The  plaintiffs'  covenant 
for  quiet  enjoyment,"  said  Greene,  J.,  "has  never  been  broken, 
for  the  reason  that  there  never  was  any  eviction.  .  .  .  And 
as  they  had  no  covenant  against  encumbrances,  they  had  no 
right  to  pay  them  voluntarily,  and  without  any  request  on 
the  part  of  the  defendant,  and  charge  him  with  such  pay- 
ment. It  is  no  answer  to  say  that  it  would  be  a  hardship 
for  the  plaintiffs  to  be  compelled  to  wait  until  they  were 
evicted,  and  then  sue  for  the  purchase  money,  and  lose  the 
enhanced  value  of  the  land  and  improvements.  But  for  the 
covenant  for  quiet  enjoyment  they  could  not  even  recover  the 
purchase  rrioney  in  a  case  free  from  fraud;  and  if  they  de- 
sired a  remedy  adequate  to  other  contingencies  they  should 
have  provided  for  it  by  appropriate  covenants."  ^  But  if,  by 
statute,  one  form  of  covenant  is  made  to  include  them  all,  the 

land,  and  the  grantee  should  there-  enant  is  attached,  and  under  which 

upon    yield    up    the   possession,    he  he   originally   entered,   is   as   much 

would  immediately  have  a  right  of  defeated  in  the  one  case  as  in  the 

action  upon  the  covenant  of  war-  other.     He  is,  in  fact,  dispossessed, 

ranty   in  his   deed;   and  this   right  so    far   as   that   title   is   concerned, 

would  not   be  barred   or   forfeited  He  is  still  in  possession,  but  he  is  so 

should   he   forthwith   purchase   the  under    another    title,    adverse    and 

premises     from    the    claimant,     to  paramount  to  his  former  one;  and 

whose    superior    title    he    has    thus  his  purchase  is,   therefore,   equiva- 

yielded  the  possession.     He  might,  lent  to   an   entry   of   the   claimant, 

on  such  repurchase,  immediately  re-  It  is  an  ouster  by  his  consent,  and 

enter  into  the  possession,  and  still  a    re-entry    by    himself    under    the 

maintain  his  action  on  the  covenant.  superior  title  without  going  through 

If,    instead    of    this    formality,    he  what    would    be,    at    best,    a    mere 

yields  to  the  claims  of  a  paramount  formality,  where,  conscious  of  the 

title,  and  purchases  without  an  ac-  defect  of  the  title  under  which  he 

tual  entry  of  the  claimant  under  it,  originally    entered,    he    chooses    to 

where  is  the  substantial  difference?  yield  peaceably  to  the  assertion  o^ 

For  all  practical   purposes  his  title  a  better  tile  and  to  purchase  it." 
under  the  grant  to  which  his  cov-  *  McCoy  v.  Lord,  19  Barb.  18. 


1740 


THE  LAW   OF   DEEDS. 


[chap.    XXVI. 


grantee  may,  of  course,  pay  off  a  tax  on  the  land,  and  re- 
cover the  amount  paid  on  his  covenant.^ 

§  930.  Covenant  for  further  assurance. — This  cove- 
nant which,  however,  is  seldom  used  in  the  United  States, 
is  defined  as  "one  by  which  the  covenantor  undertakes  to  do 
such  reasonable  acts,  in  addition  to  those  already  performed, 
as  may  be  necessary  for  the  completion  of  the  transfer  made, 
or  intended  to  be  made,  at  the  requirement  of  the  covenantee. 
It  relates  both  to  the  title  of  the  vendor  and  the  instrument 
of  conveyance  to  the  vendee,  and  operates  as  well  to  secure 
the  performance  of  all  acts  for  supplying  any  defects  in  the 
former,  as  to  remove  all  objections  to  the  sufficiency  and  se- 
curity of  the  latter."  ^  Its  object  is  to  give  effect  and  opera- 
tion to  the  estate  conveyed  but  not  to  enlarge  that  estate.^ 
The  acts  which  under  this  covenant  the  covenantor  will  be 
required  to  perform,  must  be  necessary  and  practicable.*  A 
purchaser  cannot  recover  as  damages  the  expenses  incurred  by 
him  in  removing  a  cloud  upon  the  title  as  a  covenant  for 
further  assurance  relates  only  to  those  defects  which  the  vendor 
himself  can  supply.^ 

§  931.  Covenant  of  warranty. — This  covenant,  which 
is  considered  the  broadest  and  most  effective,  and  is  the  one 
in  general  use,  is  equivalent  to  a  covenant  for  quiet  enjoy- 
ment.®    It  is  "an  assurance  by  the  grantor  of  an  estate  that 


5  McCoy  V.  Lord  supra.  But  see 
Hall  V.  Dean,  13  Johns.  105. 

iFunk  V.  Cresswell,  5  Clark,  91. 
Further   Assurance;    Piatt   onETA 

2  Bouv.  Law.  Diet.  tit.  Covenant 
for  Further  Assurance;  Piatt  on 
Covenants,  341. 

3  Uhl  V.  Ohio  etc.  Co.,  51  W.  Va. 
106,  41  S.  E.  340. 

*Gwynn  v.  Thomas,  2  Gill  &  J. 
420;    Warn  v.   Beckford,   7   Price, 


550;  Pet  and  Cally's  Case,  1  Leon. 
304. 

6  Luther  v.  Brown,  66  Mo.  App. 
227. 

6  Fowler  v.  Poling,  2  Barb.  303; 
6  Barb.  165;  Emerson  v.  Proprie- 
tors, 1  Mass.  464,  2  Am.  Dec.  34; 
Bostwick  V.  Williams,  36  111.  70,  .85 
Am.  Dec.  385;  Athens  v.  Nale,  25 
111.  198;  Rea  v.  Minkler,  5  Lans. 
196.     See  Williams  v.  Wetherbee,  1 


CHAP.    XXVI.] 


COVENANTS. 


1741 


the  grantee  shall  enjoy  the  same  without  interruption  by  vir- 
tue of  paramount  title."  "^  The  covenant  is  extinguished  by 
a  reconveyance  to  the  grantor  before  a  breach,  and  a  new 
conveyance  will  not  revive  it  in  the  absence  of  a  new  express 
covenant.^  The  covenant  does  not  extend  to  claims  which 
possess  no  legal  foundation.®  Where  a  deed  purports  to  con- 
vey only  the  right,  title,  and  interest  of  the  grantor,  the  scope 
of  the  covenant  of  warranty  may  be  limited  by  the  subject 
matter  of  the  conveyance.^  Laches  in  bringing  suit  does  not 
commence  until  the  party  has  been  damnified.^     The  grantor 


Aiken,  240;  Dobbins  v.  Brown,  2 
Jones,  75;  Russ  v.  Steele,  40  Vt. 
310.  Real  v.  Hollister,  20  Neb.  112, 
29  N.  W.  189;  Thompson  v.  Rich- 
mond, 102  Me.  335,  66  Atl.  649; 
Cain  V.  Fisher,  57  W.  Va.  492,  50 
S.  E.  752 ;  Oliver  v.  Rush,  125  Ala. 
537,  27  So.  923.  This  section  was 
cited  with  approval  in  Reynolds  v. 
Shaver,  59  Ark.  299,  43  Am.  St. 
Rep.  36. 

"^  Bouv.  Law  Diet.  tit.  Cov.  War. 
See  Moore  v.  Lanham,  3  Hill 
(S.  C),  304;  Rindskopf  v.  Far- 
mers' Loan  Co.,  58  Barb.  36;  Hull 
V.  Hull,  35  W.  Va.  155,  29  Am.  St. 
Rep.  800,  13  S.  E.  Rep.  49;  Adams 
V.  Ross,  30  N.  J  L.  510,  82  Am. 
Dec.  237. 

8  Brown  v.  Metz,  33  111.  339,  85 
Am.   Dec.   277. 

9  Gleason  v.  Smith,  41  Vt.  296. 

1  Allen  V.  Holton,  20  Pick.  458; 
Blanchard  v.  Brooks,  12  Pick.  47; 
Adams  v.  Ross,  1  Vroom,  510,  82 
Am.  Dec.  237;  Raymond  v.  Ray- 
mond, 10  Cush.  134;  Wight  v. 
Shaw,  5  Cush.  56;  Sweet  v.  Brown, 
12  Met  175;  45  Am.  Dec.  243; 
Brown  v.  Jackson,  3  Wheat.  452, 
4  L.  ed.  432;  Hoxie  v.  Finney,  16 
Gray,  332;  Van  Rensselaer  v.  Kear- 


ney, 11  How.  325,  13  L.  ed.  715; 
McNear  v.  McComber,  18  Iowa,  12 ; 
Merritt  v.  Harris,  102  Mass.  328; 
Blodgett  V.  Hildreth,  103  Mass. 
488;  Bates  v.  Foster,  59  Me.  157, 
8  Am.  Rep.  406.  In  Bates  v.  Fos- 
ter, 59  Me.  157,  8  Am.  Rep. 
406,  the  holder  of  an  equity  of 
redemption  granted  to  him  by  an- 
other, conveyed  the  estate  and 
title  which  his  grantor  had  giv- 
en him,  by  metes  and  bounds,  with 
covenants  of  warranty.  It  was  held 
that  his  covenant  did  not  warrant 
title  against  the  mortgage.  In  a 
case  where  property  was  conveyed 
by  the  use  of  the  words  "grant,  bar- 
gain, and  sell,"  and  the  deed  con- 
tained a  covenant  "to  warrant  and 
defend  the  title  to  the  conveyed 
premises  against  the  claim  of  every 
person  whomsoever,"  it  was  held 
that  an  action  for  breach  of  cove- 
nant would  not  lie  because  of  the 
existence  of  an  outstanding  deed  of 
trust  on  the  land :  Koenig  v.  Bran- 
son, 73  Mo.  634.  A  warranty  of 
title  to  land  conveyed  does  not  ex- 
tend to  a  tract  included  by  mistake. 
Laufer  v.  Aloppins,  44  Tex.  Civ. 
App.  472,  99  S.  W.  109. 
2  Post  V.   Campau,  42   Mich.  90. 


1742 


THE   LAW    OF  DEEDS. 


[chap.    XXVI. 


is  not  liable  for  a  mortgage  where  the  hahenduin  clause  states 
that  the  conveyance  is  subject  to  it,  followed  by  a  warranty 
not  expressly  excepting  the  mortgage.^  Where  the  land  is 
subject  to  the  lien  of  a  judgment,  which  is  subsequently  as- 
signed to  the  grantor,  the  grantee  has  no  right  to  any  part 
of  the  judgment  save  to  the  measure  to  which  the  proceeds 
of  the  sale  of  the  land  conveyed  is  applicable  to  its  payment.* 
A  grantor  is  not  liable  for  defending  against  an  unfounded 
claim  under  a  covenant  to  defend  against  lawful  claims.'* 


§  932.  Breach  of  covenant  of  warranty. — As  the  cove- 
nant of  warranty  is  considered  tantamount  to  that  for  quiet 
enjoyment,  what  is  a  breach  of  the  latter  is  also  a  breach  of 
the  former,  and  therefore  something  equivalent  to  an  eviction 
must  occur  to  operate  as  a  breach  of  this  covenant.^  The  ef- 
fect of  full  covenants  of  warranty  is  not  to  be  limited  by  a 
subsequent  clause  of  ambiguous  signification,  and  which  may 
be  construed  as  an  affirmation  of  the  previous  recitals."'  The 
covenant,  however,  is  not  broken  by  the  act  of  a  mere  stranger 
having  no  valid  title,  though  he  may  pretend  to  have  one.' 


8  Hopper  V.  Smyser,  90  Md.  363, 
45  Atl.  206. 

4  Flanary  v.  Kane,  102  Va.  547,  46 
S.  E.  312. 

'Rittmaster  v.  Richner,  14  Colo. 
App.  361,  60  Pac.  189.  See  as  to 
other  cases  of  general  warranty, 
Thorne  v.  Clarke.  112  Iowa,  548,  84 
N.  W.  701,  84  Am.  St.  Rcii.  356; 
Lehman  v.  Given,  177  Pa.  St.  580, 
35  Atl.  864;  Hynes  v.  Packard,  92 
lex.  44.  45  S.  W.  562;  Balch  v. 
Arnold,  9  Wyo.  17,  59  Pac.  434. 

6  Scott  V.  Kirkcndall,  88  111.  465, 
30  Am.  Rep.  562;  Townsend  v. 
Morris,  6  Cowen,  126;  Caldwell  v. 
Kirkpatrick,  6  Ala.  60,  41  Am. 
Dec.  Z6.  See  Green  v.  Collins,  20 
Hun,   474.      See,    also,    Lennig    v. 


Land  &  Imp.  Co.  107  Va.  458,  59 
S.  E.  400;  Cain  v.  Fisher,  57  W. 
Va.  492,  50  S.  E.  752;  Britten  v. 
Ruffin,  123  N.  C.  67,  31  S.  E.  271; 
Merrill  v.  Suing,  66  Neb.  404,  92 
N.  W.  618;  Oliver  v.  Rush,  125 
Ala.  537,  27  So.  923;  Ravenel  v. 
Ingram,  131  N.  Y.  549,  42  S.  E. 
967;  Burns  v.  Vereen,  132  Ga. 
349,  64  S.  E.  113;  Brown  v. 
Thompson,  81  S.  C.  380,  62  S.  E. 
440;  Savage  v.  Cauthorn,  109  Va. 
694,  64  S.  E.  1052.  For  mono- 
graphic note  on  Breach  "of  Cove- 
nant of  Warranty  by  Eviction,  see 
122  Am.  St.  Rep.  852  et  seq. 

7  Locke    V.    White,    89    Ind.    492. 

8  Hannah    v.    Henderson,    4    Ind. 
174;  Hale  v.  New  Orleans,  13  La. 


CHAP.    XXVI.] 


COVENANTS. 


1743 


But  the  existence  of  a  public  or  private  way,'  or  the  right 
to  use  a  wall  situated  on  the  premises  for  a  party  wall,  are 
breaches  of  the  covenant.^  So  likewise  a  sale  of  the  land 
for  nonpayment  of  taxes  charged  thereon  against  the  grantor 
prior  to  the  conveyance  and  while  he  owned  the  land,  is  a 
breach  of  a  covenant  of  special  warranty.^  And,  generally, 
what  in  the  case  of  a  covenant  for  quiet  enjoyment  is  consid- 
ered an  eviction,  is  deemed  such  under  a  covenant  of  war- 
ranty. If  a  deed  contains  a  covenant  of  general  warranty, 
and  at  the  time  it  is  made  another  has  actual  possession  of 
the  premises,  holding  them  by  a  paramount  title,  an  eviction 
occurs  eo  instanti,  and  an  action  can  be  immediately  com- 
menced.'    If  a  person  executes  a  deed  with  a  covenant  of 


Ann.  499;  Loughran  v.  Ross,  45 
N.  Y.  792,  6  Am.  Rep.  173.  See 
Kincaid  v.  Brittain,  5  Sneed,  124; 
Norton  v.  Jackson,  5  Cal.  262; 
Gleason  v.  Smith,  41  Vt.  293.  A 
covenant  of  warranty  does  not 
protect  the  grantee  against  claims 
for  which  the  grantor  is  not  re- 
sponsible, but  only  against  claims 
based  upon  a  legal  foundation. 
Thorne  v.  Clark,  112  la.  548,  84 
N.  W.  701,  84  Am.  St.  Rep.  356. 

9  Butt  V.  Riffe,  78  Ky.  352;  Russ 
V.  Steele,  40  Vt.  310;  Haynes  v. 
Young,  36  Me.  561;  Harlow  v. 
Thomas,  15  Pick.  66. 

iLamb  v.  Danforth,  59  Me.  324, 
8  Am.  Rep.  426.  See  Hendricks 
V.  Stark,  Z7  N.  Y.  106,  93  Am. 
Dec.  549.  The  right  in  another 
to  draw  water  from  the  premises 
is  a  breach:  Day  v.  Adams,  42 
Vt.  510;  Clark  v.  Conroe,  38  Vt. 
469.  So  is  suffering  taxes  to  re- 
main unpaid:  Rinehart  v.  Rine- 
hart,  91  Ind.  89.  Where  a  deed 
purports  to  convey  only  the  right, 
title,   and   interest   of   the  grantor, 


a  general  covenant  will  not  en- 
large the  conveyance :  Young  v. 
Clippinger,  14  Kan.  148;  Gee  v. 
Moore,  12  Cal.  472;  Sweet  v. 
Brown,  12  Met.  175,  45  Am.  Dec. 
243;  Locke  v.  White,  89  Ind.  492; 
Habig  v.  Dodge,  127  Ind.  31,  25 
N.  E.  Rep.  182;  Bryan  v.  Utland, 
101  Ind.  477;  Reynolds  v.  Shaver, 
59  Ark.  299,  43  Am.  St.  Rep.  36; 
Hanrick  v.  Patrick,  119  U.  S.  156, 
30  L.  ed.  396;  Bates  v.  Foster,  59 
Me.  157,  8  Am.  Rep.  406;  Kimball 
V.  Semple,  25  Cal.  440;  McNear  v. 
McComber,  18  Iowa,  12;  McDon- 
ough  V.  Martin,  88  Ga.  675;  Bowen 
v.  Thrall,  28  Vt.  382;  Cummings  v. 
Dearborn,  56  Vt.  441 ;  Marsh  v. 
Fish,  66  Vt.  213;  Stockwell  v. 
Couillard,  129  Mass.  231;  Allen  v. 
Ilolton,  20  Pick.  458. 

2  Carr  v.  Fischer,  57  W.  Va.  4^2, 
50  S.  E.  752. 

3  Rex  V.  Creel,  22  W.  Va.  373 
See,  also,  Harr  v.  Shaffer,  52  W. 
Va.  207,  43  S.  E.  89.  But  other- 
wise where  the  holder  of  the  para- 
mount title  is  not  in  possession  of 


1744 


THE  LAW   OF  DEEDS. 


[chap.    XXVI. 


warranty,  and  the  deed  under  which  he  holds  contains  a  con- 
dition against  the  erection  of  buildings  on  a  portion  of  the 
land,  there  is  a  breach  of  the  covenant.*  A  grantor  who  has 
become  the  purchaser  of  an  existing  mortgage  is  not  com- 
pelled to  foreclose  the  mortgage  for  his  protection,  but  may 
recover  on  his  covenants  of  warranty.^  A  general  warranty 
in  a  deed  relates  to  the  title  of  the  land,  not  its  quantity.^  A 
judgment  of  injunction  depriving  grantees  of  the  beneficial 
enjoyment  of  a  part  of  the  land  granted  is  a  constructive 
eviction  and  a  breach  of  a  covenant  of  warranty.'  So,  also, 
a  purchase  of  a  paramount  title  asserted  against  the  cove- 
nantee is  an  eviction  sufficient  to  amount  to  a  breach  of  the 
covenant,' 


the  land  nor  positively  asserting 
title  against  the  grantee:  Jones  v. 
Paul,  59  Tex.  41.  That  plaintiff 
to  prove  a  prima  facie  case  is  re- 
quired merely  to  prove  that  he 
has  either  been  evicted  or  kept 
out  of  possession  by  one  in  actual 
possession  claiming  title  para- 
mount to  his  own  in  an  action  for 
breach  of  covenants  of  quiet  en- 
joyment and  warranty  see  Heyn 
V.  Ohman,  42  Neb.  693,  60  N.  W. 
952.  The  covenant  is  broken  by 
eviction,  actual  or  constructive 
under  a  lawful  and  paramount 
title.  Sheppard  v.  Reese,  114  Ga. 
411,  40  S.  E.  282;  Messervey  v. 
Reese,  94  la.  222,  62  N.  W.  767, 
58  Am.  St.  Rep.  391;  Leonard  v. 
Gary  (Ky.)  65  S.  W.  124;  Mc- 
Lennan V.  Prentice  (Wis.)  55  N. 
VV.  764.  See,  also,  Garpenter  v. 
Garpenter,  88  Ark.  169,  113  S  .W. 
1032 ;  White  v.  Stewart,  131  Ga. 
460,  62  S.  E.  590;  Lennig  v.  Land 
etc.  Go.,  107  Va.  458,  59  S.  E.  400. 
*  Kramer  v.  Carter,  136  Mass. 
504.     Where  the  premises  conveyed 


were  not  described  as  a  millsitc, 
but  a  waterpower  and  flouring- 
mill  were  situated  on  them,  the 
exercise  subsequently  by  an  ad- 
joining owner  of  a  right  possessed 
by  him  to  raise  the  dam,  thus 
throwing  the  water  back,  injuring 
the  buildings  and  overflowing  the 
land,  constitutes  a  breach;  Scriver 
V.  Smith,  30  Hun,  129. 

6  Royer  v.  Foster,  62  Iowa,  321. 

6  Adams  v.  Baker,  50  W.  Va. 
249,  40  S.  E.  356;  Burbridge  v, 
Sadler,  46  W.  Va.  39,  32  S.  E. 
1028;  Maxwell  v.  Wilson,  54  W. 
Va.  495,  46  S.  E.  349. 

'Ensign  v.  Golt,  75  Gonn.  HI, 
52  Atl.  829.  See  as  to  breach  by 
enforcement  of  tax  or  assess- 
ment lien :  Goleman  v.  Ins.  Go. 
(Ky.)  82  S.  W.  616;  Gonley  v. 
Asphalt  Go.  130  Ky.  262,  113  S. 
W.  125;  Bigelow  v.  Stearns,  137 
Mich.  26,  100  N.  W.  125;  Gars- 
well  V.  Habberzettle,  99  Tex.  1, 
86  S.  W.  738,  122  Am.  St.  Rep. 
597. 

8  Hayden  v.   Patterson,  39  Colo. 


CHAP.    XXVI.] 


COVENANTS. 


1745 


§  933.  Right  of  joint  possession. — ^'A  person  suing 
upon  a  covenant  of  warranty  must  of  course  have  an  interest 
which  has  been  injured  or  disturbed.  But  where  a  deed  con- 
tains a  proviso  that  the  right  of  possession  shall  be  reserved 
to  the  mother  and  sister  of  the  grantee  as  well  as  to  himself, 
for  use  as  a  homestead  until  he  arrives  as  majority,  he  has 
such  an  interest  as  entitles  him  to  sue  upon  the  covenant  for 
a  breach.' 

§  934.  Damages  for  breach  of  covenants  of  quiet  en- 
joyment and  of  warranty. — In  some  of  the  States  the 
measure  of  damag^es  for  a  breach  of  these  covenants  is  the 
value  of  the  land  at  the  time  of  injury  by  defect  of  title  and 
eviction,^     But  the  general  rule  now  is  that  the  damages  for 


15,  88  Pac.  437;  Brown  v.  Thomp- 
son, 81  S.  C.  380,  62  S.  E.  440; 
Morgan  v.  Haley,  107  Va.  331, 
13  L.R.A.(N.S.)  732,  58  S.  E.  564. 
9  Mason  v.  Kellogg,  38  Mich. 
132.  Said  Graves,  J.,  in  delivering 
the  opinion  of  the  court:  "The 
grantors  do  not  appear  to  have  re- 
tained anything.  The  grant  was 
to  the  plaintiff,  in  fee,  with  a  quali- 
fied use  to  him  and  his  mother  and 
sister  for  a  term  limited  to  a  few 
months,  and  which  might  be  cut 
short  by  the  occurrence  of  his 
mother's  death  sooner.  Let  it  be 
admitted  that  plaintiff  and  his 
mother  and  sister  were  vested  with 
a  right  to  the  land  itself  under  this 
clause :  Shep.  Touch.  93 ;  Co.  Litt. 
4  b;  Green  v.  Biddle,  8  Wheat.  1, 
7(),  5  L.  ed.  547,  566.  Let  it  be 
conceded  that  in  virtue  of  being 
entitled  to  the  described  special 
kind  of  use  and  enjoyment  for  the 
time  limited,  they  were  by  force 
of  the  deed  and  the  statute  (Comp. 
Laws,  §§  4116,  4118)  vested  for 
Deeds,  Vol.  IL— 110 


such  time  with  a  legal  estate  of 
the  same  quality  and  duration,  and 
subject  to  the  same  conditions  as 
the  beneficial  interest  as  meant  by 
the  grantor;  and  still  the  plaintiff 
had  all  the  estate  and  right  not 
embraced  by  the  clause  in  question, 
and  likewise  the  right  under  that 
clause  to  present  possession  and 
enjoyment  in  common  with  his 
mother  and  sister.  His  interest 
was  severable  from  theirs.  It  was 
much  more  extensive.  It  covered 
everything  except  the  trifling  mat- 
ter of  their  right  to  use  and  enjoy 
with  him  in  the  special  mode  lim- 
ited up  to  August  9,  1876.  That 
he  had  an  interest  and  present 
right  capable  of  being  so  disturbed 
and  infringed  as  to  give  him  an 
immediate  right  of  action  upon  the 
covenant  cannot  be  doubted,  and 
the  nature  of  his  right  and  inter- 
est entitled  him  to  sue  alone : 
Rawle  on  Gov.  599;  Barbour  on 
Parties,  33." 
iPark  V.  Bates,   12  Vt.  381,  36 


1746 


THE  LAW    OF   DEEDS. 


[chap.  XXVL 


a  breach  of  these  covenants  are  measured  by  the  considera- 
tion, or  what  the  land  was  worth  as  determined  by  the  par- 
ties or  by  the  consideration  price,  together  with  interest  for 
the  time  the  purchaser  has  lost  the  mesne  profits,  and  also  the 
costs  and  expenses  incurred  by  the  covenantee  in  defending 
the  suit  to  evict  him.^    For  a  partial  breach,  damages  are  re- 


Am.  Dec.  347;  Keeler  v.  Wood, 
30  Vt.  242;  Keith  v.  Day,  15  Vt. 
660 ;  Drury  v.  Shumway,  Chip.  D. 
Ill,  1  Am.  Dec.  704;  Sterling  v. 
Peet,  14  Conn.  245;  Horsford  v. 
Wright,  Kirby,  3,  1  Am.  Dec.  8; 
Sweet  V.  Patrick,  12  Me.  9;  Do- 
herty  v.  Dolan,  65  Me.  87 ;  20  Am. 
Rep.  677;  Cushman  v.  Blanchard, 
2  Greenl.  268,  11  Am.  Dec.  16; 
Hardy  v.  Nelson,  27  Me.  525;  El- 
der V.  True,  30  Me.  104;  Caswell 
V.  Wendell,  4  Mass.  108;  Norton 
V.  Babcock,  2  Met.  516;  White  v.. 
Whitney,  3  Met.  81 ;  Gore  v.  Braz- 
ier, 3  Mass.  523,  3  Am.  Dec.  182; 
Bigelow  V.  Jones,  4  Mass.  512. 
And  see,  also,  where  once  recog- 
nized. Nelson  v.  Matthews,  2  Hen. 
&  M.  164,  3  Am.  Dec.  620;  With- 
erspoon  v.  McCalla,  3  Desaus.  Eq. 
245;  Liber  v.  Parsons,  1  Baj^  19; 
Mills  V.  Bell,  3  Call,  277;  Guerard 
V.  Rivers,  1  Bay,  265 ;  Erebright  v. 
Still,  1  Bay,  92.  See,  also,  Farwell 
V.  Bean,  82  Vt.  172,  72  Atl.  731; 
Olmstead  v.  Rawson,  188  N.  Y. 
517,  81  N.  E.  456. 

2  McGary  v.  Hastings,  39  Cal. 
360,  2  Am.  Rep.  456;  Tong  v. 
Matthews,  23  Mo.  437;  McClure 
V.  Gamble,  27  Pa.  St.  288;  Drew 
V.  Towle,  30  N.  H.  531,  64  Am. 
Dec.  309;  Brown  v.  Dickerson,  12 
Pa.  St.  372;  Cathcarf  v.  Bowman, 
5  Pa.  St.  317;  Cox  v.  Henry.  32 
Pa.    St    18;    Williamson    v.    Test, 


24  Iowa,  138;  Hallam  v.  Tod- 
hunter,  24  Iowa,  166;  Elliott  v. 
Thompson,  4  Humph.  99,  40  Am. 
Dec.  630;  Dalton  v.  Bowker,  8 
Nev.  190;  Phillips  v.  Reichert,  17 
Ind.  120,  79  Am.  Dec.  463;  Clark 
V.  Burr,  14  Ohio,  188;  Harding  v. 
Larkin,  41  111.  413;  Whitlock  v. 
Crew,  28  Ga.  289;  Marshall  v.  Mc- 
Connell,  1  Litt.  419;  Cummins  v. 
Kennedy,  3  Litt.  118,  14  Am.  Dec. 
45 ;  Lloyd  v.  Quimby,  5  Ohio  St. 
262;  Wade  v.  Comstock,  11  Ohio 
St.  71;  Swafford  v.  Whipple,  3 
Greene,  G.  261.  54  Am.  Dec.  498; 
Gridley  v.  Tucker,  Freem.  Ch.  209; 
Pence  v.  Duvall,  9  Mon.  B.  48; 
Robertson  v.  Lemon,  2  Bush,  301 ; 
Davis  V.  Smith,  5  Ga.  274,  47  Am. 
Dec.  279;  Wood  v.  Kingston  Coal 
Co.  48  111.  356,  95  Am.  Dec.  554; 
Bond  v.  Quattlebaum,  1  McCord, 
584,  10  Am.  Dec.  702;  Cox's  Heirs 
v.  Strode,  2  Bibb,  277,  5  Am.  Dec. 
603;  Booker  v.  Bill,  3  Bibb,  173, 
6  Am.  Dec.  641;  Davis  v.  Hall,  2 
Bibb,  590;  Robards  y.  Netherland, 
3  Bibb,  529;  Holmes  v.  Senneck- 
son,  15  N.  J.  L.  313;  Pearson  v. 
Davis,  1  McMull.  Zl ;  Grist  v. 
Hodges,  3  Dev.  198;  Bennett  v. 
Jenkins,  13  Johns.  50;  Burton  v. 
Reeds,  20  Ind.  87;  Cincinnati  etc. 
R.  R.  Co.  V.  Pearce,  28  Ind.  502; 
Threkheld  v.  Fitzhugh,  2  Leigh, 
451;  Jackson  v.  Turner,  5  Leigh, 
127;    Foster   v.   Thompson,   41    N. 


CHAP.    XXVI.] 


COVENANTS. 


1747 


coverable,  according  to  the  same  rule,  in  proportion  to  the  ex- 
tent of  the  breach.^  If  the  eviction  is  by  a  paramount  hen, 
damages  may  be  recovered  to  the  extent  of  the  hen,  if  this 
does  not  exceed  the  amount  that  could  be  recovered  for  an 
eviction  for  faiku-e  of  title.*  If  the  adverse  title  has  been 
extinguished,    the    covenantee    may    recover    what    he    has 


H.  373;  Wallace  v.  Talbot,  1  Mc- 
Cord,  466;  Talbot  v.  Bedford, 
Cooke,  447;  Lowther  v.  Common- 
wealth, 1  Hen.  &  M.  202;  Earle  v. 
Middleton,  1  Cheves,  127;  Cren- 
shaw V.  Smith,  5  Munf.  415;  Mc- 
Millan V.  Ritchie,  3  Mon.  348,  16 
Am.  Dec.  107 ;  Kennedy  v.  Davis, 
7  Mon.  1^;  Hanson  v.  Buckner,  4 
Dana,  251,  29  Am.  Dec.  401 ;  Mor- 
ris V.  Rowan,  17  N.  J.  L.  304; 
Taylor  v.  Holton,  1  Mont.  688; 
Stebbins  v.  Wolf,  IZ  Kan.  765; 
Rogers  v.  Golson  (Tex.  Civ.  App.) 
31  S.  W.  Rep.  200;  Sheffey  t. 
Gardiner,  79  Va.  313;  Barnett  v. 
Hughey,  54  Ark.  195,  15  S.  W. 
Rep.  464;  Taylor  v.  Wallace,  20 
Colo.  211,  2>1  Pac.  Rep.  693;  Rhea 
V.  Swain,  122  Ind.  272;  Bellows  v. 
Litchfield,  83  Iowa,  Id,  48  N.  W. 
Rep.  1062;  Boyers  v.  Amet,  41  La. 
Ann.  721,  6  So.  Rep.  734;  Cook  v. 
Curtis,  68  Mich.  611;  Devine  v. 
Lewis,  38  Minn.  24,  35  N.  W.  Rep. 
711;  Matheny  v.  Stewart,  108  Mo. 
11,  17  S.  W.  Rep.  1014;  Hoffman 
V.  Bosch,  18  Nev.  360,  4  Pac.  Rep. 
703;  Taylor  v.  Holter,  1  Mont. 
688;  Winnipiseogee  Paper  Co.  v. 
Eaton,  65  N.  H.  13,  18  Atl.  Rep. 
171;  Ramsey  v.  Wallace,  100  N. 
C.  75,  6  S.  E.  Rep.  638;  Rash  v. 
Jenne,  26  Or.  169,  37  Pac.  Rep. 
538;  Thiele  v.  Axell,  5  Tex.  Civ. 
App.  548.  See,  also,  Herington  v. 
Qark,  60   Kan.   855,   55    Pac.  462; 


Parkinson  v.  Woulds,  125  Mich. 
325,  84  N.  W.  292;  Madden  v. 
Land  Co.  16  Ida.  59,  21  L.R.A. 
(N.S.)  332,  100  Pac.  358;  Folk 
V.  Graham,  82  S.  C.  66,  62  S.  E. 
1106;  Blanten  v.  Nunley  (Tex.) 
119  S.  W.  881;  Mfg.  Co.  v.  Imp. 
Co.  31  Wash.  610,  72  Pac.  455; 
Cheney  v.  Straube,  35  Neb.  521,  53 
N.  W.  479  (citing  text.) 

*  Mayor  v.  Donnovant,  25  111. 
262;  Griffin  v.  Reynolds,  17  How. 
609,  15  L.  ed.  229;  Dougherty  v. 
Duvall's  Heirs,  9  Mon.  B.  57 ;  Raines 
V.  Calloway,  27  Tex.  678;  Boyle  v. 
Edwards,  114  Mass.  ZTi;  Dickins  v. 
Sheppard,  3  Mui-ph.  526;  Morris  v. 
Harris,  9  Gill.  19;  Hunt  v.  Orwig, 
17  Mon.  B.  IZ,  66  Am.  Dec.  144; 
Dimmick  v.  Lockwood,  10  Wend. 
142;  Williams  v.  Beeman,  2  Dev. 
483;  Hoot  v.  Spade,  20  Ired.  326; 
Brooks  V.  Mohl,  104  Minn.  404, 
17  L.R.A.(N.S.)  1195,  116  N.  W. 
931,  124  Am.  St.  Rep.  629  (citing 
text.) 

4  Tufts  V.  Adams,  8  Pick.  547; 
Donohoe  v.  Emery,  9  Met.  63; 
White  V.  Whitney,  3  Met.  81 ;  Fur- 
nas V.  Durgin,  119  Mass.  500,  20 
Am.  Rep.  341 ;  Holbrook  v.  Weath- 
erbee,  12  Me.  502;  Winslow  v. 
McCall,  32  Barb.  241.  And  see, 
also,  Norton  v.  Babcock,  2  Met. 
510;  Stewart  v.  Drake.  9  N.  J.  L. 
139;  Elder  v.  True.  Zl  Me.  104; 
Chapel    V.     Bull,     17     Mass.    213; 


1748 


THE   LAW    OF   DEEDS. 


[chap.    XXVI. 


paid  therefor,  with  a  fair  remuneration  for  his  trouble,  and 
he  will  also  be  allowed  the  reasonable  incidental  expenses. 
But  the  total  amount  cannot  exceed  what  he  could  recover  on 
a  total  loss  of  title.'  The  covenantee  can  have  but  one  satis- 
faction, altliough  he  may  sue  the  first  or  any  succeeding 
covenantor.^  An  intermediate  grantee  who  has  conveyed  the 
land  may,  in  case  of  damage,  maintain  an  action  against  a 
remote  grantor."' 


Copeland  v.  Copeland,  30  Me.  446; 
Harper  v.  Jeffries,  5  Whart.  26; 
Lloyd  V.  Quimby,  5  Ohio  St.  262; 
Burk  V.  Clements,  16  Ind.  132; 
Pittman  v.  Connor,  27  Ind.  337; 
Miller  V.  Halsey,  14  N.  J.  L.  48; 
McGinnis  v.  Noble,  7  Watts  &  S. 
454;  Mellon's  Appeal,  32  Pa.  St. 
121;  Blood  V.  Wilkins,  43  Iowa, 
565;  Smith  v.  Dixon,  27  Ohio  St. 
471. 

sSwett    V.    Patrick,    12    Me.    9; 
Bailey  v.  Scott,  13  Wis.  619;  Lane 
V.    Fury,    31    Ohio    St.    574;    Mc- 
Gary    v.    Hastings,   39    Cal.    360,    2 
Am.   Rep.   456;   Leffingwell   v.   El- 
liott, 10  Pick.  204,  8  Pick.  457,  19 
Am.    Dec.   343;    Loomis   v.    Bedel, 
11   N.   H.   74;    Dale  v.    Shively,   8 
Kan.   276;   Jones   v.   Lightfoot,    10 
Ala.    17;    Thayer    v.    Clemence,    22 
Pick.   490;    Estabrook   v.    Smith,  6 
Gray,  572,  66  Am.   Dec.  445;   Yo- 
kum    V.    Thomas,     15    Iowa,    67 
Richards  v.   Iowa  Homestead   Co 
44    Iowa,   304,   24    Am.    Rep.    745 
Claycomb   v.   Munger,   51    111.   373 
Fawcett   v.   Woods,    5    Iowa,    400 
Spring   V.    Chase,    22    Me.    505,    39 
Am.   Dec.  595;  Kelly  v.  Lowe,   18 
Me.    244;    Allis    v.    Nininger,    25 
Minn.  525;  Hurd  v.  Hall,   12  Wis. 
112;  Lewis  v.  Harris.  31  Ala.  689; 
Lane  v.   Desire,  23  Mo.   151;   Mc- 


Kee  V.  Bain,  11  Kan.  569.  And  see 
Martin  v.  Atkinson,  7  Ga.  228,  50 
Am.  Dec.  403;  Ferris  v.  Mosher, 
27  Vt.  218.  65  Am,  Dec.  192;  Bax- 
ter V.  Ryerss,  13  Barb.  267;  Beas- 
Icy  V.  Phillips,  20  Ind.  App.  182, 
50  N.  E.  488;  Holloway  v.  Miller, 
84  Miss.  116,  36  So.  531;  Lemly 
V.  Ellis,  146  N.  C.  221,  59  S.  E. 
683;  TatLim  v.  Kincannon  (Tex.) 
119  S.  W.  113. 

«Crooker  v.  Jewell,  29  Me.  527; 
Birney  v.  Hann,  3  Marsh.  A.  K. 
322,  13  Am.  Dec.  167;  Lowe  v. 
McDonald,  3  Marsh.  A.  K.  354, 
13  Am.  Dec.  181;  Wilson  v.  Tay- 
lor, 9  Ohio  St.  595,  75  Am.  Dec. 
488;  King  v.  Kerr,  5  Ohio,  154, 
22  Am.  Dec.  Ill ;  Crisfield  v.  Storr, 
36  Me.  129;  Withy  v.  Mumford,  5 
Cowen,  137;  Lot  v.  Parish,  1  Litt. 
393;  Williams  v.  Beeman,  2  Dev 
483;  Hunt  v.  Orwig,  17  Mon.  B. 
12),  66  Am.  Dec.  144;  Claycomb  v. 
Munger,  51  111.  373;  Suydam  v. 
Jones,  10  Wend.  180,  25  Am.  Dec. 
552 ;  Thompson  v.  Sanders,  5  Mon. 
58;  Williams  v.  Beeman,  2  Dev. 
483. 

'  Birney  v.  Hann,  3  Marsh.  A.  K. 
322,  13  Am.  Dec.  167.  "As  the  in- 
dorser  of  a  commercial  instru- 
ment," said  Mills,  J.,  "who  has 
paid    its    contents    can    sustain   his 


CHAP.    XXVI.] 


COVENANTS. 


1749 


§  935.  Notice  to  the  covenantor  of  suit. — If  an  action 
is  brought  by  a  person  claiming  a  paramount  title  to  recover 
the  premises  from  the  covenantee,  the  latter,  by  giving  notice 
to  the  covenantor  of  such  suit,  and  requesting  him  to  under- 
take its  defense,  may  liberate  himself  from  the  necessity  of 
proving,  in  case  the  claimant  of  the  paramount  title  is  suc- 
cessful, the  validity  of  such  title,  when  suing  upon  his  cove- 
nant.'    If  the  grantor  himself  defended  the  suit,  it  is  no  de- 


action  against  his  remote  indorser 
without  a  reindorsement,  because 
his  indorsement,  by  the  act  of  pay- 
ment, per  se,  has  become  functus 
officio  as  to  him,  so  ought  Hann, 
who  has  rendered  his  own  deed 
inoperative  further  against  him, 
to  be  restored  to  the  situation  he 
was  in  before  it  was  made,  with- 
out a  conveyance  formally  exe- 
cuted." And  see,  also,  Wlieeler  v. 
Sohier,  3  Cush.  219;  Claycomb  v. 
Hunger,  51  111.  373;  Herrin  v.  Mc- 
Entyre,  1  Hawks,  410;  Thompson 
V.  Sanders,  5  Mon.  357;  Lot  v. 
Parish,  1  Litt.  393;  Baxter  v. 
Ryerss,  13  Barb.  267;  Booth  v. 
Starr,  1  Conn.  244,  6  Am.  Dec.  233 ; 
Redwine  v.  Brown,  10  Ga.  311; 
Withy  V.  Mumford,  5  Cow.  137; 
Markland  v.  Crump,  1  Dev.  &  B. 
94,  27  Am.  Dec.  230;  Thompson 
V.  Shattuck,  2  Met.  618. 

8  Greenlaw  v.  Williams,  2  Lea 
(Tenn.),  533;  Park  v.  Bates,  12 
Vt.  381,  36  Am.  Dec.  347;  Swenk 
V.  Stout,  2  Yeates,  470;  Hinds  v. 
Allen,  34  Conn.  195;  Bender  v. 
Bromberger,  4  Dall.  436,  1  L.  ed. 
898;  Wimberly  v.  Collier,  32  Ga. 
13;  Leather  v.  Poulteny,  4  Binn. 
356;  Williams  v.  Weatherbee,  2 
Aikens,  307;  Collingwood  v.  Irwin, 
3  Watts,  310;  Mooney  v.  Burchard, 


84  Ind.  285;  Ives  v.  Niles,  5  Ind. 
323;  King  v.  Kerr,  5  Ohio,  158, 
22  Am.  Dec.  777 ;  City  of  St.  Louis 
V.  Bissell,  46  Mo.  157;  Morgan  v. 
Muldoon,  82  Ind.  347 ;  Paul  v.  Wit- 
man,  3  Watts  &  S.  409;  Wendel 
v.  North,  24  Wis.  223;  Somers  v. 
Schmidt,  24  Wis.  419,  1  Am.  Rep. 
191;  Jones  v.  Whitsett,  79  Mo.  188; 
Middleton  v.  Thompson,  1  Spear, 
67;  Pitkin  v.  Leavitt,  13  Vt.  379; 
Brown  v.  Taylor,  13  Vt.  631,  37 
Am.  Dec.  618;  Turner  v.  Good- 
rich, 26  Vt.  708;  Cooper  v.  Wat- 
son, 10  Wend.  205 ;  Chapman  v. 
Holmes,  5  Halst.  20;  Booker  v. 
Bell,  3  Bibb.  173;  6  Am.  Dec.  641; 
Prewit  V.  Kenton,  3  Bibb.  282; 
Cox  V.  Strode,  4  Bibb,  4;  Miner 
V.  Clark,  15  Wend.  427;  Morris 
V.  Rowan,  2  Har.  (N.  J.)  307; 
Kelly  V.  The  Dutch  Church,  2  Hill, 
105;  Wilson  v.  McElwee,  1  Strob. 
65 ;  Jones  v.  Waggoner,  7  Marsh. 
J.  J.  144;  Davis  v.  Wilbourne,  1 
Hill  (S.  C),  28,  26  Am.  Dec. 
154;  Boyd  v.  Whitfield,  19  Ark. 
469;  Graham  v.  Tankersley,  15 
Ala.  634.  See  Cummings  v.  Har- 
rison, 57  Miss.  275 ;  Walton  v.  Cox, 
67  Ind.  164.  See,  also,  Chenault 
V.  Thomas,  119  Ky.  130,  83  S.  W. 
109;  Richmond  v.  Ames,  164  Mass. 
467,  41  N.  E.  671. 


1750 


THE   LAW   OF   DEEDS. 


[chap.  XXVL 


fense  that  the  defendant  in  the  ejectment  suit  was  not  in 
possession.^  When  proper  notice  has  been  given,  and  suit  is 
brought  by  the  covenantee  against  his  covenantor,  the  latter, 
in  the  absence  of  fraud  or  collusion,  will  not  be  permitted  to 
make  the  issue  that  the  recovery  against  the  former  was  not 
obtained  by  virtue  of  a  paramount  title.''  But  this  rule,  it 
seems,  does  not  prevail  in  North  Carolina.^  If  the  covenantee 
is  compelled  to  bring  suit,  in  the  first  instance,  to  acquire 
possession  of  the  premises,  it  is  generaly  held,  that  if  he  gives 
notice  to  the  covenantor  to  prosecute  the  suit,  the  judgment 
will  be  conclusive  upon  him.^  But  in  Tennessee,  a  different 
conclusion  was  reached  by  the  court,  on  the  ground  that  the 
law  only  authorized  the  making  the  covenantor  a  defendant, 
and  not  a  plaintiff.*  The  notice  may  be  by  parol*  But  mere 
knowledge  derived  from  third  persons,  as  distinguished  from 
notice,  is  not  sufficient.^  The  notice  should  be  certain,  ex- 
plicit, and  unequivocal'  In  some  states  it  is  held  that  to  en- 
title a  purchaser  to  the  benefit  of  a  covenant  of  warranty  con- 
clusive against  the  covenantor  he  must  not  only  have  been 
notified  of  the  suit  but  requested  to  appear  and  defend.* 


9  Jones  V.   Whitsell,  79   Mo.   188. 

1  McConnel  v.  Downs,  48  111.  271 ; 
Sisk  V.  Woodruff,  15  111.  15. 

2  Martin  v.  Cowles,  2  Dev.  & 
B.  101 ;  Wilder  v.  Ireland,  8  Jones 
(N.  C),  88;  Shober  v.  Robinson, 
2  Murph.  33;  Saunders  v.  Hamil- 
ton, 2  Hayw.   (N.  C.)   282. 

3  Pitkin  V.  Leavitt,  13  Vt.  379; 
Brown  v.  Taylor,  13  Vt.  631,  37 
Am.  Dec.  618;  White  v.  Williams, 
13  Tex.  258;  Gragg  v.  Richardson, 
25  Ga.  570,  71  Am.  Dec.  190;  Park 
V.  Bates,   12  Vt.  381,  36  Am.   Dec. 

^Ferrell  v.  Alder,  8  Humph.  44. 

6  Miner  v.  Clark,  15  Wend.  427. 
But  see  Mason  v.  Kellogg,  38  Mich. 
132. 

8  Somers    v.    Schmidt,    24    Wis. 


417,  1  Am.  Rep.  191;  Collins  v. 
Baker,  6  Mo.  App.  588. 

'Paul  V.  Witman,  3  Watts  &  S. 
410;  Boyd  v.  Whitfield,  19  Ark. 
470;  Collins  v.  Baker,  6  Mo.  App. 
588.  It  is  for  the  jury  to  decide 
whether  the  notice  was  received  or 
not :  Collingwood  v.  Irwin,  3 
Watts,  310.  But  whether  it  was  a 
proper  notice  as  to  time  is  a  ques- 
tion for  the  court :  Davis  v.  Wil- 
bourne,  1  Hill   (S.  C.)  28,  26  Am. 

8  Morgan  v.  Haley,  107  Va.  331, 
13  L.R.A.(N.S.)  732,  58  S.  E.  564, 
13  A.  &  E.  Ann.  Cas.  204.  See, 
also,  Johns  v.  Hardin,  81  Tex.  37, 
16  S.  W.  623;  Sampson  v.  Zim- 
merman, 73  Kan.  654,  85  Pac.  757; 
and     see    Hubbard     v.     Stanaford 


CHAP.    XXVI.]  COVENANTS.  1/"."'^ 

§  936.  Comments. — Although  it  seems  tliat  a  parol 
notice  is  sufficient,  yet  as  a  matter  of  practice,  it  is  obvious 
that  it  is  better  always  to  give  it  in  writing.  The  notice  must 
be  direct  and  certain,  and  after  the  lapse  of  a  considerable 
period  of  time  it  would,  considering  the  infirmity  of  human 
memory,  be  almost  impossible  to  remember  the  exact  lan- 
guage in  which  the  notice  was  given.  The  notice  given  to 
the  covenantor  should  be  considered  as  a  notice  in  a  legal 
proceeding,  and  ought  on  general  principles  to  be  couched  in 
writing.  Mr.  Justice  Bronson  has  aptly  said,  in  a  dissenting 
opinion,  after  referring  to  the  practice  under  the  old  system 
of  voucher  by  a  writ  of  summons,  where  the  right  could  only 
be  exercised  by  means  of  a  writ  served  by  an  officer,  "he 
ought  not,  in  the  other,  to  be  prejudiced  by  anything  less 
definite  and  formal  than  a  writing  which  will  advise  him  of 
what  has  been  done,  and  what  he  is  required  to  do."  ^  And 
probably  now  under  statutory  provisions  requiring  notices  in 
legal  proceedings  to  be  in  writing,  a  written  notice  would 
be  necessary. 

§  937.     Where  no  notice  is  given  to  the  covenantor. — 

There  has  been  some  discussion,  resulting  in  a  variance  of 
opinion,  as  to  what  effect  a  judgment  possesses  when  the 
covenantor  had  not  been  notified  of  the  suit,  and  was  not  re- 
quested to  defend.  Of  course,  such  a  judgment  cannot  bind 
the  covenantor.  The  only  question  that  can  arise  is  one  of 
evidence.  It  has  been  asserted  that,  although  the  defendant 
might  inquire  into  the  merits  of  the  judgment,  yet  it  was 
prima  facie  evidence  of  the  existence  of  a  paramount  title.' 

(Ky)    100    S.    W.    232;    Richstein      E.    41;    Richmond    v.    Ames,    164 

V  Welch    197  Mass.  224,  83  N.  E.       Mass.  467,  41  N.  E.  671. 

417;    Fitzpatrick    v.    Hoffman,    104  ^Miner  v.  Clark,   ISWend  427. 

Mich   228  62  N   W.  349 ;  Olmstead  ^  Collmgwood  v.  Irwin,  3  Watts, 

V  Rawson,  188  N.  Y.  517,  81  N.  E.  310;  Pitkins  v.  Leavitt  13  Vt.  384; 
456;  Browning  v.  StiUwell,  86  N.  i'aul  v.  Whitman,  3  Watts  &  S. 
Y.  Supp.  707,  42  Misc.  346;  Teague  407. 

V.  Whaley,  20  Ind.  App.  26,  50  N. 


1752 


THE   LAW   OF   DEEDS. 


[chap.    XXVI. 


But  the  more  reasonable  rule,  and  the  one  sustained  by  au- 
thority, is  that  the  judgment,  where  no  notice  has  been  given, 
and  the  covenantor  is  not  a  party  to  the  suit,  is  not  even  prima 
facie  evidence  that  the  eviction  was  founded  upon  an  adverse 
and  paramount  title.^  "It  is  a  familiar  principle  of  law  that 
a  man  shall  not  be  bound  by  a  judgment  pronounced  in  a 
proceeding  to  which  he  is  not  a  party,  actually  or  construc- 
tively. He  should  be  allowed  to  appear  in  the  case,  and  ad- 
duce evidence  in  support  of  his  rights  before  he  is  concluded 
by  the  judgment.  If  a  warrantor  has  no  notice  of  the  action 
against  his  grantee,  and  no  opportunity  of  showing  therein 
that  he  transferred  a  good  title,  he  cannot,  in  any  sense,  be 
considered  a  party  to  the  action,  and  therefore  ought  not  to 
be  bound  by  any  adjudication  of  the  question  of  title.  But, 
if  he  has  notice,  he  may  become  a  party  to  the  suit,  and  it  is 
his  own  fault  if  his  title  is  not  fully  presented  and  investi- 
gated. He  then  has  an  opportunity  of  sustaining  the  title  that 
he  has  warranted  and  defeating  a  recovery  by  the 
plaintiff  in  ejectment.  If  he  fails  to  do  this  success- 
fully, he  is  concluded  from  afterward  asserting  the 
superiority  of  that  title,  and  compelled  to  refund  the 
purchase  money,  with  interest.  By  giving  the  warrantor 
notice,  the  defendant  in  ejectment  may  relieve  himself  from 
the  burden  of  afterward  proving  the  validity  of  the  title  un- 
der which  he  is  evicted.  But,  if  he  neglects  to  give  the  no- 
tice, he  must  come  prepared  to  prove,  on  the  trial  of  the 


2  Hanson  v.  Buckner,  4  Dana, 
254,  29  Am.  Dec.  401;  Booker  v. 
Bell,  3  Bibb,  175,  6  Am.  Dec.  641; 
Graham  v.  Tankersley,  15  Ala.  645 ; 
Stevens  v.  Jack,  3  Yerg.  403 ;  De- 
vour V.  Johnson,  3  Bibb,  410; 
Prewitt  V.  Kenton,  3  Bibb,  282; 
Lox  V.  Strode,  4  Bibb,  4;  Rhode  v. 
Green,  26  Ind.  83.  See,  also,  Os- 
burn  V.  Pritchard,  104  Ga.  145,  30 


S.  E.  656;  Richstein  v.  Welch,  197 
Mass.  224,  83  N.  E.  417;  McCrillis 
V.  Thomas,  110  Mo.  App.  699,  85 
S.  W.  673;  Morrette  v.  Bostwick, 
111  N.  Y.  S.  1021,  127  App.  Div. 
701 ;  Baumgarten  v.  Chipman.  30 
Utah,  466,  86  Pac.  411;  Wallace  v. 
Perles,  109  Wis.  316,  S3  L.R.A. 
644,  85  N.  W.  371,  83  Am.  St.  Rep. 
898   (quoting  text). 


CHAP.    XXVI.]  COVENANTS.  1753 

action  of  covenant,  that  he  was  evicted  by  force  of  an  ad- 
verse and  superior  title;  in  other  words,  he  must  show  that 
the  warrantor,  by  appearing  and  defending  the  action  of 
ejectment,  could  not  have  prevented  a  recovery."  '  It  does 
not  follow  as  a  necessary  conclusion  that  the  defendant  has 
been  defeated  in  a  suit  in  ejectment  because  his  title  was  de- 
fective. He  may  have  suffered  judgment  to  go  against  him, 
or  the  plaintiff  may  have  recovered  on  some  technical  ground. 
It,  perhaps,  is  unnecessary  to  remark  that  want  of  notice  to 
the  covenantor  of  the  pendency  of  the  prior  suit,  while  giv- 
ing him  an  opportunity  to  show  his  title  when  sued  upon  the 
covenant,  cannot  defeat  a  recovery  on  the  part  of  the  cove- 
nantee. The  latter  is  under  no  obligation  to  give  notice  to 
enable  him  to  recover.* 

§  938.     Mortgagee  entitled  to  benefit  of  covenant. — 

Where  land  has  been  purchased  by  a  mortgagor  with  cove- 
nants of  warranty,  the  mortgagee  is  entitled  to  the  benefit  of 
such  covenants.  Thus,  a  person  purchased  land  with  cove- 
nants of  warranty,  and  subsequently  executed  a  mortgage 
upon  it,  and  finally  the  title  passed  to  another.     It  was  then 

aSisk  V.  Woodruff,  15  111.  15,  Hunter,  Dud.  (Ga.)  4;  Webb  v. 
per  Treat,  C.  J.  See,  also,  Fields  Alexander,  7  Wend.  286;  Paul  v. 
V.  Hunter,  8  Mo.  128.  In  some  Witman,  3  Watts  &  S.  407;  Den- 
cases  a  judgment  has  been  deemed  nis  v.  Heath,  11  Smedes  &  M.  218, 
evidence  of  the  bare  fact  of  an  49  Am.  Dec.  51. 
eviction :  Hanson  v.  Buckner,  4  *  King  v.  Kerr,  5  Ohio,  158,  22 
Dana,  254,  29  Am.  Dec.  401;  Book-  Am.  Dec.  Ill;  Claycomb  v.  Mun- 
er  V.  BelJ,  3  Bibb,  175,  6  Am.  Dec.  ger,  51  111.  378;  Rhode  v.  Green, 
641;  Rhode  v.  Green,  26  Ind.  83.  26  Ind.  83;  Smith  v.  Compton,  3 
See,  also,  Richstein  v.  Welch,  197  Barn.  &  Adol.  408;  Duffield  v. 
Mass.  224,  83  N.  W.  417.  But  in  Scott,  3  Term  Rep.  376.  Where  a 
other  cases  it  is  held  that  unless  grantee  has  surrendered  posses- 
there  is  evidence  of  some  change  sion  to  one  claiming  adversely,  he 
of  possession,  actual  or  construe-  must  show  that  the  title  of  such 
tive,  a  judgment  is  not  evidence  of  person  is  paramount  to  that  of  his 
an  eviction :  Hoy  v.  Taliaferro,  8  grantor :  Snyder  v.  Jennings,  15 
Smedes  &  M.  741 ;  Miller  v.  Avery,  Neb.  372. 
2    Barb.    Ch.    582;    McDowell    v. 


1754  THE   LAW    OF   DEEDS.  [cHAP.    XXVt 

found  that  the  title  originally  acquired  by  the  mortgagor  had 
totally  failed,  whereupon  the  grantor  of  the  mortgagor  paid 
to  the  last  grantee,  in  ignorance  of  the  existence  of  the  mort- 
gage, the  amount  of  his  liability  on  the  covenant.  An  action 
was  brought  to  foreclose  the  mortgage,  and  tb.e  court  decided 
that  equity  had  jurisdiction  to  compel  the  last  grantee  to 
whom  the  money  was  paid  to  repay  so  much  of  the  amount 
received  by  him  as  was  necessary  for  the  protection  of  the 
mortgagor.^  The  court*  considered  that  the  mistake  of  the 
parties  as  to  the  fact  of  the  nonexistence  of  the  mortgage  was 
a  sufficient  reason  upon  which  to  found  a  right  of  recovery. 
To  the  argument  that  this  liability  was  purely  legal,  and  that 
a  complete  remedy  might  be  had  at  law,  Mr.  Chief  Justice 
Beck  replied :  ''But  mistakes  whereby  parties  are  deprived  of 
their  property  or  money  have  always  been  subjects  of  chan- 
cery cognizance,  and  remedies  to  relieve  therefrom  are  never 
refused  in  that  forum.  While  it  is  true  that  money  paid  by 
mistake  may  be  recovered  at  law,  and  when  no  circumstances 
attend  the  case  which  will  bring  it  within  chancery  jurisdic- 
tion, the  remedy  must  be  sought  at  law,  yet  if  for  any  reason 
the  case  is  of  equitable  cognizance,  the  party  will  not  be  re- 
quired to  go  to  another  forum  to  recover  the  money,  but  will 
have  full  relief  in  equity."  ^ 

§  939.     Interest   and   counsel  fees  as  damages. — The 

plaintiff  is  generaly  allowed  to  recover  interest  upon  the  pur- 
chase money  as  part  of  the  damages  to  which  he  is  entitled, 
as  an  offset  to  the  right  of  the  owner  of  the  paramount  title 
to  mesne  profits.'     But  the  recovery  of  interest  is  confined 

B  Rose  V.  Schafifner,  50  Iowa,  483.  254;  Brandt  v.  Foster,  5  Iowa, 
6  Rose  V.  Schaffner,  supra.  But  295;  Winslow  v.  McCall,  Z2  Barb, 
see  Davidson  v.  Cox,  10  Neb.  150.  241;  McNear  v.  McComber,  18 
■7  Sumner  v.  Williams,  8  Mass.  Iowa,  12;  Partridge  v.  Hatch,  18 
222,  5  Am.  Dec.  83;  Downer  v.  N.  H.  494.  See  Dalton  v.  Bow- 
Smith,  38  Vt.  464;  Staats  v.  Ten  ker,  8  Nev.  190;  Leffingwell  v.  El- 
Eyck,   3   Caines,    111,   2  Am.   Dec  liott,   10  Pick.  204. 


CHAP.    XXVI.] 


COVENANTS. 


1755 


within  the  hmits  for  which  a  recovery  of  the  mesne  profits 
may  be  had.  "The  buyer  in  the  covenant  of  seisin  recovers 
back  the  consideration  money  and  interest,  and  no  more.  The 
interest  is  to  countervail  the  claim  for  mesne  profits,  and  is, 
and  ought  to  be,  commensurate  in  point  of  time  with  the 
legal  claim  to  mesne  profits."  *  Whether  counsel  fees  can  be 
recovered  or  not  is  a  mooted  question.  In  some  cases  they 
have  been  considered  a  proper  element  of  damages.^  In 
others,  however,  they  have  been  held  not  to  be  recoverable.^ 
But  where  the  covenant  is  to  indemnify  the  covenantee  and 
save  him  harmless  from  all  loss- and  expenses,  aside  from  a 
covenant  for  title  as  such,  counsel  fees  are  recoverable  as 
damages.^  Where  notice  of  the  pendency  of  an  action  has 
been  given  to  the  covenantor,  and  he  has  been  requested  to 


84  Kent's  Com.  375.  See,  also, 
Patterson  v.  Stewart,  6  Watts  & 
S.  528,  40  Am.  Dec.  586;  Flint  v. 
Steadman,  36  Vt.  210;  Caulkins  v. 
Harris,  9  Johns.  324;  Ela  v.  Card, 
2  N.  H.  175,  9  Am.  Dec.  46 ;  Guth- 
rie V.  Pugsley,  12  Johns.  126 ;  Wil- 
liams V.  Beeman,  2  Dev.  485 ;  Part- 
ridge V.  Hatch,  18  N.  H.  494;  Clark 
V.  Parr,  14  Ohio,  118,  45  Am.  Dec. 
529;  Rich  v.  Johnson,  1  Chand.  20, 
52  Am.  Dec.  144;  Kyle  v.  Faunt- 
leroy,  9  Mon.  B.  620;  Bennett  v. 
Jenkins,  13  Johns.  50.  But  see 
Whiting  V.   Dewey,    15   Pick.  428. 

9Rowe  V.  Heath,  23  Tex.  620 
Harding  v.  Larkin,  41  111.  420 
Rickert  v.  Snyder,  9  Wend.  416 
McAlpin  V.  Woodruff,  11  Ohio  St 
130;  Haynes  v.  Stevens,  11  N.  H 
28;  Keeler  v.  Wood,  30  Vt.  242 
Robertson  v.  Lemon,  2  Bush,  303 
Kingsbury  v.  Smith,  13  N.  H.  125 
Pitkin  V.  Leavitt,  13  Vt.  379;  Tur- 
ner V.  Goodrich,  26  Vt.  709;  Drew 
V.  Towle,  10  Fost.  (N.  H.)  531,  64 


Am.  Dec.  309;  Sumner  v.  Williams, 
S  Mass.   162,  5  Am.  Dec.  83. 

1  Jeter  v.  Glenn,  9  Rich.  380; 
Williams  v.  Burg,  9  Lea  (Tenn.), 
455 ;  Gragg  v.  Richardson,  25  Ga. 
566,  71  Am.  Dec.  190.  See  Cush- 
man  v.  Blanchard,  2  Greenl.  266, 
11  Am.  Dec.  76;  Kennison  v.  Tay- 
lor, 18  N.  H.  220;  Williamson  v. 
Williamson,  71  Me.  442;  Harding 
V.  Larkin,  41  111.  413;  Swartz  v. 
Ballou,  47  Iowa,  188,  29  Am.  Rep. 
470;  Morris  v.  Rowan,  17  N.  J. 
L.  304;  Drew  v.  Towle,  30  N.  H. 
531,  64  Am.  Dec.  309;  Holmes  v. 
Sinnickson,  15  N.  J.  L.  313;  Rob- 
ertson V.  Lemon,  2  Bush,  301 ;  Mor- 
gan V.  Haley,  107  Va.  331,  13 
L.R.A.(N.S.)  732,  58  S.  E.  564. 

2  Robinson  v.  Bakewill,  25  Pa. 
St.  (1  Casey),  426;  Cox  v.  Henry, 
32  Pa.  St.  (8  Casey),  21;  Ander- 
son V.  Washabaugh,  43  Pa.  St.  115. 
But  see  Morgan  v.  Haley,  107  Va. 
331,  13  L.R.A.(N.S.)  732,  58  S.  E 
564. 


1756 


THE  LAW   OF  DEEDS. 


[chap.    XXVI. 


defend,  and  refuses  to  do  so,  the  legal  elements  of  damage 
are  said  to  be  the  costs  of  the  suit,  the  costs  to  which  the  cove- 
nantee was  subjected  in  defending  it,  with  interest  from  the 
time  of  payment,  and  the  vakie  of  the  premises  at  the  date 
of  eviction,  with  interest  from  that  time.' 

§  940.  Covenants  running  with  the  land. — Certain 
covenants  are  appurtenant  to  the  estate  granted  by  the  deed 
in  which  such  covenants  are  contained,  and  bind  the  assigns 
of  the  covenantor,  and  vest  in  the  assigns  of  the  covenantee 
in  the  same  manner  as  if  they  had  personally  made  them. 
Covenants  of  this  kind  are  said  to  run  with  the  land.  A  cove- 
nant by  a  grantor  that  he  will  not  erect,  or  suflfer  to  be  erect- 
ed, any  structure  upon  a  lot  adjoining  the  property  which  he 
has  conveyed,  is  a  covenant  that  runs  with  the  land.*  A 
covenant  to  pay  assessments  will  run  with  the  land.^  So  will 
a  covenant  made  by  a  grantee  that  he  will  not  carry  on,  or 
allow  to  be  carried  on,  any  offensive  trade  upon  the  premises 
conveyed  to  him.®  A  covenant  in  a  deed  of  city  lots,  provid- 
ing that  any  house  which  should  be  built  upon  such  lots  should 
be  placed  back  a  specified  distance  from  the  line  of  the  street 
on  which  such  lots  front,  is  held  to  be  a  covenant  running 


3  Williamson  v.  Williamson,  71 
Me.  442.  See,  also,  Gragg  v.  Rich- 
ardson, 25  Ga.  570,  71  Am.  Dec 
190;  Haynes  v.  Stevens,  11  N.  H. 
28;  Merritt  v.  Morse,  108  Mass. 
270;  Pitkin  v.  Leavitt,  13  Vt.  379; 
White  V.   Williams,   13  Tex.  258. 

*  Trustees  etc.  v.  Cowen,  4  Paige, 
510,  27  Am.  Dec.  80.  The  cove- 
nant must  respect  the  estate  con- 
veyed. Indiana  etc.  Co.  v.  Hinton, 
159  Ind.  398,  64  N.  E.  224;  North- 
ern etc.  R.  Co.  V.  McClure,  9  N.  D. 
73,  47  L.R.A.  149,  81  N.  W.  52; 
West  Va.  etc.  R.  Co.  v.  Mclntire, 
44  W.  Va.  210,  28  S.  E.  696;  Deas- 


on  V.  Findley,  145  Ala.  407,  40  So. 
220;  Mfg.  Co.  v.  Mills,  126  Ga. 
210,  7  L.R.A.(N.S.)  1139,  54  S.  E. 
1028;  Tract  Co.  v.  Harbaugh,  38 
Ind.  App.  115,  78  N.  E.  80;  Sjob- 
lom  V.  Mark,  103  Minn.  193,  IS 
L.R.A. (N.S.)  1129,  114  N.  W.  746; 
Clement  v.  Willett,  105  Minn.  267, 
17  L.R.A. (N.S.)  1094,  117  N.  W. 
491,  127  Am.  St.  Rep.  562;  L. 
&  T.  Co.  V.  Fuller,  114  Mo.  App. 
633,  91  S.  W.  58;  Hurxthal  v. 
Boom  etc.  Co.  53  W.  Va.  87,  44  S. 
E.  520,  97  Am.  St.  Rep.  954. 

6  Kearney  v   Post,  2   N.   Y.  394. 

*  Barron  v.  Richard,  8  Paige,  351. 


CHAP.    XXVI.] 


COVENANTS. 


1757 


with  the  land.'  But  an  agreement  by  the  grantee  contained 
in  a  deed-poll  to  keep  in  repair  a  building  of  the  grantor  on 
land  adjoining  that  conveyed,  does  not  run  with  the  land,  and 
4ience  a  subsequent  grantee  of  the  adjoining  land  cannot  main- 
tain an  action  on  it.*  A  covenant  to  maintain  fences  already 
built  will  run  with  the  land.^  But  a  covenant  to  build  a  fence 
seems  to  be  personal  only.^  In  England,  all  covenants  for  title 
are  considered  as  appurtenant  to  the  land,  and  to  run  with  it.^ 
But  in  this  country,  the  covenants  for  title  considered  as  run- 
ning with  the  land  are  those  for  quiet  enjoyment,  for  further 
assurance,  and  of  warranty.^  A  covenant  for  the  main- 
tenance of  a  dam  and  adjacent  works  for  the  benefit  of  an  ad- 
joining estate  which  the  covenantor  conveys,  will  run  with 
the  land.*  If  at  the  time  the  deed  is  executed  a  bond  is  also 
executed  containing  a  covenant,  binding  the  purchaser,  his 


'Winfield  v.  Henning,  21  N.  J. 
Eq.  188. 

*  Martin  v.  Drinan,  128  Mass. 
515. 

^Bronson  v.  Coffin,  108  Mass. 
175,  11  Am.  Rep.  335;  Easter  v. 
Little  Miami  R.  R.  Co.  14  Ohio  St. 
48;  Kellogg  v.  Robinson,  6  Vt.  276, 
27  Am.  Dec.  550;  Hazlett  v.  Sin- 
clair, Id  Ind.  488,  40  Am.  Rep.  254. 
See,  also,  Sterling  Hydraulic  Co.  v. 
Williams,  66  111.  393;  Gaines  v. 
Poor,  3  Met.  503,  79  Am.  Dec.  559 ; 
Thomas  v.  Van  Kopff,  6  Gill  &  J. 
372;  Fairbanks  v.  Williamson,  7 
Me.  96;  Stockett  v.  Howard,  34 
Md.  121 ;  Countryman  v.  Deck,  13 
Abb.  N.  C.  110;  Van  Rensselaer  v. 
Dennison,  35  N.  Y.  393 ;  Worthing- 
ton  V.  Hewes,  19  Ohio  St.  66;  Van 
Rensselaer  v.  Smith,  27  Barb.  104; 
Hickey  v.  Lake  Shore  etc.  Ry.  Co., 
51  Ohio  St.  40,  46  Am.  St.  Rep. 
545.  But  see  Kennedy  v.  Owen, 
136  Mass.  199. 


1  Hartung  v.  Witte,  59  Wis.  285 ; 
Kennedy  v.  Owen,  Zd  Mass.  199. 

2  Kingdom  v.  Nottle,  1  Maule  & 
S.  355. 

3  Logan  V.  Moulder,  1  Ark.  313, 
ZZ  Am.  Dec.  338;  White  v.  Whit- 
ney, 3  Met.  81 ;  Chandler  v.  Brown, 
59  N.  H.  370;  Withy  v.  Munford, 
5  Cowen,  137;  Crisfield  v.  Storr,  36 
Md.  129,  11  Am.  Rep.  480;  Rinds- 
kopf  V.  Farmers'  etc.  Trust  Co., 
58  Barb.  36;  Burtners  v.  Keran,  24 
Gratt.  42;  Hunt  v.  Amidon,  4  Hill, 
345,  40  Am.  Dec.  283;  Markland 
V.  Crump,  1  Dev.  &  B.  94,  27  Am. 
Dec.  230;  Claycomb  v.  Munger,  51 
111.  372;  Civil  Code  Cal.  §  1463; 
Kimball  v.   Bryant,  25  Minn.  496. 

4  Fitch  V.  Johnson.  104  111.  111. 
A  covenant  by  a  railroad  company 
to  build  a  fence,  in  a  deed  convey- 
ing to  it  a  right  of  way,  runs  with 
the  land,  and  a  new  corporation 
succeeding  by  foreclosure  to  the 
rights  of  tlie  old  is  bound  to  per- 


1758 


THE  LAW    OF   DEEDS. 


[chap.    XXVI. 


representatives  and  assigns,  not  to  permit  a  warehouse  of  a 
certain  kind  to  be  built  on  the  land,  the  covenant  runs  with 
the  land.^  A  covenant  made  by  a  railroad  company  in  con- 
sideration of  a  grant  of  a  right  of  way,  to  build  and  forever 
maintain  a  switch  from  the  railroad  to  the  grantor's  mill,  will 
run  with  the  land.®  So  it  is  held,  where  a  deed  conveying  a 
right  of  way  to  a  railroad  company,  stipulated  that  the  com- 
pany should  build  a  depot  on  the  right  of  way,  to  be  used 
for  the  purposes  of  the  railroad,  but  to  be  the  property  of 
the  grantor,  that  the  covenant  runs  with  the  land.  It  can  be 
enforced  against  another  company  purchasing  the  property 
and  franchises  of  the  first.' 

§  940a.  Grantee  bound  by  acceptance  of  deed. — After 
acceptance  of  the  deed  by  the  grantee,  and  entry  into  pos- 
session of  the  land  conveyed,  he  is  bound  as  effectually  by 
the  conditions  contained  in  the  deed  as  though  he  had  signed 
and  executed  the  deed  himself.  He  is  deemed  by  such  acts 
to  have  expressly  agreed  to  do  what  it  is  stipulated  in  the  deed 
that  he  shall  do.  Whether  or  not  such  an  obligation  is  to  be 
deemed,  technically  speaking,  a  covenant  running  with  the 
land,  it  is,  at  all  events,  an  agreement  on  the  part  of  the 
grantee  evidenced  by  his  acceptance  of  the  deed,*     Thus,  the 


form  it  as  a  duty  blended  with  its 
right  to  use  and  occupy  the  land 
with  its  track :  Midland  Railway 
Co.  V.  Fisher,  125  Ind.  19,  8  L.R.A. 
604,  21  Am.  St.  Rep.  189. 

SRobbins  v.  Webb,  68  Ala.  393. 
See,  for  an  instance,  a  covenant 
running  with  the  land  in  relation 
to  the  quantity  of  water  flowing  in 
a  creek :  Shaber  v.  St.  Paul  Water 
Co.,   30   Minn.    179. 

6  Lydick  v.  Baltimore  &  Ohio  R. 
R.  Co.,   17  W.  Va.  427. 

"^  Georgia  Southern  R.  R.  Co.  v. 
Reeves,   64   Ga.   492.     What   cove- 


nants run  with  the  land  is  the  sub- 
ject of  an  exhaustive  note  in  82 
Am.  St.  Rep.  page  664  et  seq.  and 
reference  is  made  to  this  note  for 
an  elaborate  discussion  of  the  law 
relating   thereto. 

8  Hickey  v.  Lake  Shore  etc.  Ry. 
Co.,  51  Ohio  St.  40,  23  L.R.A.  396, 
46  Am.  St.  Rep.  545;  Georgia - 
Southern  R.  R.  Co.  v.  Reeves,  64 
Ga.  492;  Burbank  v.  Pillsbury,  48 
N.  H.  475,  97  Am.  Dec.  6ZZ.  See, 
also,  Atlanta  etc.  R.  Co.  v.  McKin- 
ney,  124  Ga.  929,  6  L.R.A.  (N.S.) 
436,  53  S.  E.  701,  110  Am.  St.  Rep. 


CHAP.    XXVI,] 


COVENANTS. 


1759 


grantee  is  bound  by  accepting  a  deed  declaring  that  it  is  made 
subject  to  the  condition  that  the  grantee,  his  heirs  and  as- 
signs, shall  build  and  maintain  a  fence.  Such  a  condition  is 
binding  perpetually  on  the  owners  of  the  land  conveyed,  and 
in  the  event  of  a  failure  of  the  grantee  and  his  assigns  to 
comply  with  it,  the  grantor  may  construct  or  repair  the  fence, 
and  maintain  an  action  against  the  original  grantee,  and  those 
deriving  title  from  him,  to  charge  each  with  his  proper  share 
of  the  expense.^  The  acceptance  of  the  deed  constitutes  a 
contract  and  all  the  covenants  bind  the  grantee  and  his  suc- 
cessors.^ Where  a  deed  contains  a  clause  that  it  is  subject 
to  the  condition  that  he,  "his  heirs  and  assigns  shall  make  and 
maintain  good  and  sufficient  fences  on  each  side  of  the  right 
of  way"  etc.  "which  condition  and  obligation  shall  be  per- 
petually binding  on  the  owners  of  the  land,"  the  stipulation 
will  run  with  the  land.     The  acceptance  of  the  deed  implies 


215;  Pittsburgh  etc.  R.  Co.  v.  Wil- 
son, 34  Ind.  App.  324,  72  N.  E. 
666;  Sexauer  v.  Wilson,  136  la 
357,  14  L.R.A.(N.S.)  185,  113  N. 
W.  941;  Chloupek  v.  Perotka,  89 
Wis.  551,  62  N.  W.  537. 

9  Hickey  v.  Lake  Shore  etc.  Ry. 
Co.,  51  Ohio  St.  40,  23  L.R.A.  396, 
46  Am.  St.  Rep.  545.  The  grantee 
is  estopped  by  the  acceptance  of  a 
deed  as  fully  as  the  grantor:  Hub- 
bard V.  Marshall,  50  Wis.  327; 
Bowman  v.  Griffith,  35  Neb.  361 ; 
Chloupek  V.  Perotka,  89  Wis.  551, 
46  Am.  St.  Rep.  858;  Lowber  v. 
Connit,  36  Wis.  176;  Hutchinson  v. 
Chicago  etc.  Ry.  Co.,  37  Wis.  582; 
Orthwein  v.  Thomas,  127  111.  554, 
4  L.R.A.  434,  11  Am.  St.  Rep.  LS9. 

1  Midland  R.  Co.  v.  Fisher,  125 
Ind.  19,  8  L.R.A.  604,  24  N.  E.  756, 
21  Am.  St  Rep.  189;  Harlan  v. 
Logansport  Natural  Gas  Co.  133 
Ind.  328,  32  N.   E.  230;  Thiebaud 


V.  Union  Furniture  Co.  143  Ind. 
344,  42  N.  E.  741;  Pittsburgh,  C. 
C.  &  St.  L.  R.  Co.  V.  Wilson,  34 
Ind.  App.  324,  72  N.  E.  666;  Fin- 
ley  V.  Simpson,  22  N.  J.  Eq.  311, 
53  Am.  Dec.  252;  Earl  v.  New 
Brunswick,  38  N.  J.  L.  47 ;  Hagerty 
V.  Lee,  54  N.  J.  L.  580,  20  L.R.A. 
631,  25  Atl.  319;  Maynard  v.  Moore. 
76  N.  C.  158;  Kentucky  C.  R.  Co. 
V.  Kenney,  82  Ky.  154;  Hodge  v. 
Sloan,  107  N.  Y.  244,  17  N.  E.  335, 
1  Am.  St.  Rep.  816;  Van  Rens- 
selaer V.  Hays,  19  N.  Y.  68,  75  Am. 
Dec.  278;  Brockmeyer  v.  Sanitary 
District,  118  111.  App.  49;  Peden 
V.  Chicago,  R.  I.  &  P.  R.  Co.  IZ 
Iowa,  328,  5  Am.  St.  Rep.  680,  35 
N.  W.  424 ;  Lake  Erie  &  W.  R.  Co. 
V.  Priest,  131  Ind.  413.  31  N.  E.  11; 
Gibson  v.  Porter,  12  Ky.  L.  Rep. 
917,  15  S.  W.  871 ;  Flege  v.  Coving- 
ton &  C.  Elev.  Co.  R.  T.  &  B.  Co. 
28  Ky.  L.  Rep.  1257,  91  S.  W.  738. 


1760 


THE  LAW    OF   DEEDS. 


[chap.    XXVI. 


an  undertaking  on  the  part  of  the  grantee  to  perform  the 
condition  and  a  subsequent  grantee  is  equally  bound.'  The 
acceptance  of  a  deed  poll  makes  it  the  mutual  act  of  the  par- 
ties.^ In  some  States  the  technical  rule  prevails  that  an 
agreement  not  sealed  by  the  party  charged  with  performance 
cannot  create  a  covenant  running  with  the  land,  but  it  is  to 
be  regarded  as  the  personal  agreement  of  the  grantee.*  But 
if  an  action  cannot  be  maintained  on  the  deed,  assumpsit  will 
lie.' 

§  941.  Markethouse. — If  in  a  deed  to  a  city  of  real 
estate  there  is  a  covenant  that  the  lot  shall  revert,  and  the 
grantee  shall  reconvey  when  the  ground  conveyed  is  no  longer 
used  for  a  market,  the  fee,  subject  to  the  easement,  is  retained 
by  the  grantor.  The  covenant  runs  with  the  land,  a  right  of 
re-entry  arising  upon  an  abandonment,  and  the  covenant  for 
a  reconveyance  dispenses  with  the  necessity  of  an  entry  by 
the  reversioner.® 

§  942.  Covenants  not  running  with  the  land. — In  this 
country,  the  covenants  of  seisin  against  encumbrances,  and 
of  good  right  to  convey,  are  regarded  as  covenants  in  pre- 
senti,  and  do  not  run  with  the  land.'     "The  covenants  of 


2Hickey  v.  Lake  Shore  &  M.  S. 
R.  Co.  51  Ohio  St.  40,  23  L.R.A. 
396,  36  N.  E.  672,  46  Am.  St.  545. 

3  Midland  R.  Co.  v.  Fisher,  125 
Ind.  19,  8  L.R.A.  604,  24  N.  E.  756, 
21  Am.  St.  Rep.  189. 

*  Parish  v.  Whitney,  3  Gray,  516; 
Bronson  v.  Coffin,  108  Mass.  175, 
11  Am.  Rep.  335;  Hinsdale  v. 
Humphrey,  15  Conn.  431;  Trustees 
of  Section  No.  160  v.  Spencer,  7 
Ohio  pt.  2,  149;  Maule  v.  Weaver, 
7  Pa.  329;  Maine  v.  Cumston.  98 
Mass.  317;  Johnson  v.  Muzzy,  45 
Vt.  419,  12  Am.  Rep.  214;  Dawson 


V.  R.  Co.  107  Ind.  70,  14  L.R.A. 
(N.S.)  809,  15  A.  &  E.  Ann.  Cas. 
678  and  note. 

5  Huff  V.  Nickerson,  27  Me.  106; 
Goodwin  v.  Gilbert,  9  Mass.  510; 
Newell  V.  Hill,  2  Met.  180;  Nu- 
gent V.  Riley,  1  Met.  117,  35  Am. 
Dec.  355;  West  Virginia  C.  &  P. 
R.  Co.  V.  Mclntire,  44  W.  Va.  210, 
28  S.  E.  696;  Shoenberger  v.  Hay, 
40  Pa.  132. 

6  Baker  v.  St.  Louis,  75  Mo.  671 ; 
s.  c.  7  Mo.  App.  429. 

■^  Lawrence  v.  Montgomery,  37 
Cal.     188.      See    Greenby    v.    Wil- 


CHAP.    XXVI.] 


COVENANTS. 


1761 


seisin,  and  of  a  right  to  convey,  and  that  the  land  is  free  from 
encumbrances,  are  personal  covenants,  not  running  with  the 
land  or  passing  to  the  assignee;  for,  if  not  true,  there  is  a 
breach  of  them  as  soon  as  the  deed  is  executed,  and  they  be- 
come choses  in  action,  which  are  not  technicaly  assignable."  ' 
A  covenant  that  the  grantee,  "his  heirs  and  assigns,  owner  or 
owners  of  the  land  for  the  time  being,"  would  on  a  notice  of 
six  months  resell  the  land  conveyed  for  a  fixed  price,  does 
not,  it  is  held,  run  with  the  land.^  So,  it  is  held  that  a  cove- 
nant by  an  owner  of  land  not  to  erect  a  gristmill  on  his  prem- 
ises does  not  run  with  the  land.^    A  covenant  that  the  tract 


cocks,  2  Johns.  1,  3  Am.  Dec.  379; 
Fuller  V.  Jillette,  9  Biss.  296;  Pills- 
bury  V.  Mitchell,  5  Wis.  21 ;  Mc- 
Carty  v.  Leggett,  3  Hill,  134;  Wil- 
son V.  Forbes,  2  Dev.  30;  Chapman 
V.  Holmes,  5  Halst.  20 ;  Hacker  v. 
Storer,  8  Greenl.  228;  Smith  v. 
Jeffts,  44  N.  H.  482;  Wilson  v. 
Cochran,  46  Pa.  St.  229;  Heath  v. 
Whidden,  24  Me.  383;  Garfield  v. 
Williams,  2  Vt.  327;  Coit  v.  Mc- 
Reynolds,  2  Rob.  (N.  Y.)  655; 
Carter  v.  Denman,  3  Zab.  260;  Ross 
V.  Turner,  2  Eng.  132,  44  Am.  Dec. 
531 ;  Logan  v.  Moulder,  1  Ark.  313 ; 
ZZ  Am.  Dec.  338;  Grist  v.  Hodges, 
3  Dev.  200;  Pence  v.  Duvall,  9  Mon. 
B.  48;  South  v.  Hoy,  3  Mon.  94; 
Brady  v.  Spurck,  27  III.  482;  Pierce 
V.  Johnson,  4  Vt.  253 ;  Richardson 
V.  Dorr,  5  Vt.  9;  Potter  v.  Taylor, 
6  Vt.  676;  Prescott  v.  Trueman,  4 
Mass.  627,  3  Am.  Dec.  246;  Clark 
V.  Swift,  3  Met.  390;  Wheelock  v. 
Thayer,  16  Pick.  68;  Bickford  v. 
Page,  2  Mass.  455 ;  Thayer  v.  Clem- 
ence,  22  Pick.  490;  Blydenburgh  v. 
Cotheal,  1  Duer,  197;  Williams  v. 
Wetherbee,  1  Aiken,  233;  Mitchell 
V.  Warner,  5  Conn.  497 ;  Davis  v. 
Deeds,  Vol.  H.— Ill 


Lyman,  6  Conn.  249;  Hamilton  v. 
Wilson,  4  Johns.  72,  4  Am.  Dec. 
253;  Beddoe  v.  Wadsworth,  21 
Wend.  120;  Townsend  v.  Morris,  6 
Cowen,  123;  Garrison  v.  Sandford, 
7  Halst.  261.  But  it  is  held  in  Cole 
V.  Kimball,  52  Vt.  639,  that  a  cove- 
nant against  encumbrances  runs 
with  the  land.  And  see,  also,  to 
same  effect,  Richard  v.  Bent,  59 
III.  38,  14  Am.  Rep.  1;  Foote  v. 
Burnet,  10  Ohio,  317,  36  Am.  Dec. 
90;  Eaton  v.  Lyman,  30  Wis.  41; 
Pillsbury  V.  Mitchell,  5  Wis.  17; 
Mecklem  v.  Blake,  22  Wis.  495 ;  De- 
vere  v.  Sunderland,  17  Ohio,  60; 
Jeler  v.  Glynn,  9  Rich.  Z76\  Dick- 
son v.  Desire,  23  Mo.  151,  66  Am. 
Dec.  661 ;  Backus  v.  McCoy,  3  Ohio, 
211,  17  Am.  Dec.  585;  Overheiser 
v.  McCallister,  10  Ind.  41 ;  Mc- 
Cready  v.  Brisbane,  1  Nott  &  McC 
104. 

8  4  Kent's  Com.  471. 

3  London  etc.  Railway  Co.  v. 
Gomm,  30  Week.  R.  620,  21  N.  Y. 
Daily  Reg.   No.    150. 

iHarsha  v.  Reid,  45  N.  Y.  415. 
See  Brown  v.  McKee,  57  N.  Y.  684. 
See,  also,  Wheelock  v.  Thayer,  16 


1762 


THE  LAW    OF   DEEDS. 


[chap.    XXVI. 


conveyed  includes  a  specific  quantity  of  land  does  not  run 
with  the  land.  The  grantee  of  the  covenantee  cannot  main- 
tain an  action  for  its  breach.^  An  agreement  that  the  pro- 
ducts of  land  shall  be  transported  by  a  certain  common  car- 
rier is  not  a  covenant  running  with  the  land^'  An  agree- 
ment for  the  payment  of  taxes  outstanding  does  not  run  with 
the  land.*  Nor  does  a  covenant  made  by  a  landowner  to 
contribute  to  the  construction  of  a  party  wall,  when  he  shall 
use  it,  run  with  the  land.^ 


Pick.  68;  Mayor  etc.  v.  Pattison,  10 
East,  136;  Breever  v.  Marshall,  19 
N.  J.  Eq.  537.  And  see  Hammond 
V.  Port  Royal  &  Augusta  Ry.  Co., 
16  S.  C.  567. 

2  Salmon  v.  Vallejo,  41  Cal.  481. 
Crockett,  J.,  in  delivering  the  opin- 
ion of  the  court,  said:  "A  cove- 
nant of  seisin,  or  that  the  grantor 
has  lawful  right  to  convey,  or  that 
the  land  is  free  from  encumbrances, 
is  a  personal  covenant,  and  when 
broken  is  broken  as  soon  as  made. 
The  right  of  action  upon  it  is  a 
mere  chose  in  action  and  does  not 
run  with  the  land:  Lawrence  v. 
Montgomery,  37  Cal.  188.  A  cove- 
nant that  the  tract  conveyed,  or 
that  the  grant  under  which  it  is 
held  includes  a  specified  quantity, 
stands  on  the  same  footing  and  is 
broken  as  soon  as  made.  It  either 
did  or  did  not  contain  the  stipu- 
lated quantity,  and  the  fact  could 
not  be  changed  by  anything  which 
subsequently  transpired.  The  dif- 
ficulty of  ascertaining  the  fact  does 
not  touch  the  question  of  the  na- 
ijure  of  the  covenant.  If  the  defi- 
ciency could  not  be  ascertained  ex- 
cept by  a  final  official  survey  under 
the  decree  of  confirmation  that  fact 
might  possibly  prevent  tlie  statute 
of   limitations   from  running  until 


survey  was  made,  though  on  this 
point  I  express  no  opinion.  But  the 
nature  of  the  covenant  remains  the 
same,  and  is  not  affected  by  the 
fact  that  there  was  no  proof  by 
which  the  breach  of  it  could  be 
established  until  the  final  survey 
was  made.  The  breach  existed  as 
soon  as  the  covenant  was  made; 
but  the  proof  to  establish  it  may 
not  have  been  attainable  until  the 
final  survey.  The  same  difficulty 
might  arise  under  a  covenant  of 
seisin,  or  against  encumbrances, 
which,  it  is  well  settled,  are  per- 
sonal covenants  not  running  with 
the    land." 

3  West  Virginia  Transportation 
Co.  V.  Ohio  River  etc.  Co.,  22  W. 
Va.  600,  46  Am.  Rep.  527.  See. 
also.  Miller  v.  Noonan,  12  Mo.  App. 
370,  where  it  is  held  that  an  agree- 
ment by  a  mortgagor  to  convey  to 
a  person  to  whom  the  mortgagee 
may  sell,  that  foreclosure  should 
not  be  had  for  a  year,  and  provid- 
ing for  a  division  of  the  proceeds 
of  sale,  is  not  a  covenant  running 
with  the  land. 

*  Graber  v.  Duncan,  79  Ind.  565. 

6  Scott  V.  McMillan,  76  N.  Y.  141, 
8  Daly,  320;  Gibson  v.  Holden,  115 
111.  199.  56  Am.  Rep.  146. 


CHAP.    XXVI.]  COVENANTS.  1763 

§  942a.  Covenant  converted  into  lien. — An  agreement 
by  which  a  landowner  agrees  to  take  water  from  a  water  com- 
pany for  the  use  of  the  land  for  a  specified  term  and  price, 
and  stating  "that  the  covenant  should  run  with  the  land," 
will,  create  a  lien  on  the  land  for  the  water  supplied  for  such 
purposes,  binding  as  against  the  landowner  and  his  successors 
in  interest  with  notice.  But  it  is  not  a  covenant  running  with 
the  land  so  as  to  bind  personally  successors  in  interest  with- 
out notice.'' 

§  943.  Change  in  character  of  neighborhood. — The  ex- 
ercise of  the  authority  of  a  court  of  equity  to  compel  the  ob- 
servance of  covenants  which  the  owner  of  land  has  made 
with  an  owner  of  adjoining  land,  limiting  the  use  of  the  lands 
to  the  purposes  of  private  residences,  in  consideration  of  simi- 
lar covenants  reciprocally  made  by  the  latter  owner,  is  with- 
in the  discretion  of  the  court.  Such  relief  will  not  be  granted 
if  the  object  of  the  agreement  has  been  defeated  by  a  change 
in  the  character  of  the  neighborhood,  so  that  to  deprive  the 
owner  of  the  power  of  having  his  property  conform  to  that 
of  the  neighborhood  would  be  inequitable.''  Adjoining  own- 
ers mutually  covenanted  for  themselves,  their  heirs  and  as- 
signs, that  none  but  dwelling-houses  should  be  erected  upon 
their  respective  premises,  and  that  neither  party  would  allow 
nor  carry  on  "any  stable,  schoolhouse,  enginehouse,  tenement, 
or  community  house,  or  any  kind  of  manufactory,  trade,  or 
business.  The  general  current  of  business  had  been  such  that 
an  elevated  railroad  was  built  in  front  of  the  premises,  which 
injuriously  affected  the  premises,  and  made  them  less  profita- 
ble than  they  had  been  for  the  purpose  of  a  dwelling-house. 
From  the  platform  of  the  station  persons  could  look  into  the 
windows.     This  fact,  added  to  the  noise  of  the  trains,  made 

8  Fresno  Canal  etc.  Co.  v.  Row-  '  Trustees    of    Columbia    College 

ell,   80  Cal.   114.   13   Am.   Sl   Rep.       v.  Thacher,  87  N.  Y.  311,  41  Am. 
112.  Rep.  365. 


1764 


THE  LAW    OF   DEEDS. 


[chap.    XXVI. 


it  impossible  to  obtain  privacy  and  quiet,  and  hence  the  rental 
vakie  of  the  property  was  lowered.  As  a  contingency  had 
occurred  which  had  not  been  contemplated  by  the  parties,  and 
which  placed  upon  the  property  a  condition  defeating  their 
objects,  rendering  the  enforcement  of  the  covenant  oppres- 
sive and  inequitable,  the  court  refused  to  decree  its  enforce- 
ment.' 


§  944,  Estopped  from  covenants. — When  a  deed 
shows  by  a  recital  or  covenant  that  there  was  an  actual  inten- 
tion to  grant  and  receive  a  certain  estate,  the  parties  are 
estopped  from  denying  the  effect  of  the  deed  as  so  intended.' 
Mr.  Justice  Nelson,  after  the  examination  of  several  cases, 
says  upon  this  subject:     "The  principle  deducible  from  these 


8  Trustees  of  Columbia  College 
V.  Thacher,  87  N.  Y.  311,  41  Am. 
Rep.  365.  Said  Danforth,  J.,  in  de- 
livering the  opinion  of  the  court 
(p.  320)  :  "It  is  true  the  covenant 
is  without  exception  or  limitation, 
but  I  think  this  contingency  which 
has  happened  was  not  within  the 
contemplation  of  the  parties.  The 
road  was  authorized  by  the  legisla- 
ture, and  by  reason  of  it  there  has 
been  imposed  upon  the  property  a 
condition  of  things  which  frus- 
trates the  scheme  devised  by  the 
parties,  and  deprives  the  property 
of  the  benefit  which  might  other- 
wise accrue  from  its  observance. 
This  new  condition  has  already  af- 
fected in  various  ways  and  degrees 
the  uses  of  property  in  its  neigh- 
borhood and  property  values.  It 
has  made  the  defendant's  property 
unsuitable  for  the  use  to  which,  by 
the  covenant  of  the  grantor,  it  was 
appropriated,  and  if,  in  face  of  its 
enactment    and    the    contingencies 


flowing  from  it,  the  covenant  can 
stand  anywhere,  it  surely  cannot  in 
a  court   of   equity." 

9  Williams  v.  Presbyterian  So- 
ciety, 1  Ohio  St.  478;  Carver  v. 
Jackson,  4  Pet.  86;  Fitzhugh  v. 
Tyler,  9  B.  Mon.  561;  Elder  v. 
Derby,  98  111.  228;  Bowman  v. 
Taylor,  2  Ad.  &  E.  278;  Wadhams 
V.  Swan,  109  111.  46;  Williams  v. 
Claiborne,  1  Smedes  &  M.  Ch.  365 
Doe  V.  Errington,  8  Scott,  210 
McBurney  v.  Cutler,  18  Barb.  208 
Clark  V.  Baker,  14  Cal.  612,  76 
Am.  Dec.  449;  Van  Rensselaer  v. 
Kearney,  11  How.  297,  13  L.  ed. 
703;  Gibson  v.  Chouteau,  39  Mo. 
536;  Taggart  v.  Risley,  4  Or.  235; 
French  v.  Spencer,  21  How.  240,  16 
L.  ed.  100;  Root  v.  Crock,  7  Pa.  St. 
(Barr.)  380;  Decker  v.  Caskey,  2 
Green  Ch.  (3  N.  J.  Eq.)  446;  Kins- 
man v.  Loomis,  11  Ohio,  478;  Smith 
v.  Pendell,  19  Conn.  107,  48  Am. 
Dec.  146;  Jackson  v.  Parkhurst,  9 
Wend.  209. 


CHAP.    XXVI.]  COVENANTS.  1765 

authorities  seems  to  be  that  whatever  may  be  the  form  or  na- 
ture of  the  conveyance  used  to  pass  real  property,  if  the 
grantor  sets  forth  on  the  face  of  the  instrument,  by  way  of 
recital  or  averment,  that  he  is  seised  or  possessed  of  a  partic- 
ular estate  in  the  premises,  and  which  estate  the  deed  purports 
to  convey,  or  what  is  the  same  thing,  if  the  seisin  or  posses- 
sion of  a  particular  estate  is  affirmed  in  the  deed,  either  in 
express  terms  or  by  necessary  implication,  the  grantor  and  all 
persons  in  privity  with  him  shall  be  estopped  from  ever  after- 
ward denying  that  he  was  so  seised  and  possessed  at  the  time 
he  made  the  conveyance.  The  estoppel  works  upon  the  es- 
tate, and  binds  an  after-acquired  title  as  between  parties  and 
privies.  The  reason  is,  that  the  estate  thus  affirmed  to  be  in 
the  party  at  the  time  of  the  conveyance  must  necessarily  have 
influenced  the  grantee  in  making  the  purchase,  and  hence  the 
grantor  and  those  in  privity  with  him,  in  good  faith  and  fair 
dealing,  should  be  forever  precluded  from  gainsaying  it.  The 
doctrine  is  founded,  when  properly  applied,  upon  the  highest 
principles  of  morality,  and  recommends  itself  to  the  common 
sense  and  justice  of  everyone.  And  although  it  debars  the 
truth  in  the  particular  case,  and  therefore  is  not  unfrequently 
characterized  as  odious,  and  not  to  be  favored,  still  it  should 
be  remembered  that  it  debars  it  only  in  the  case  where  its  ut- 
terance would  convict  the  party  of  a  previous  falsehood; 
would  be  the  denial  of  a  previous  affirmation  upon  the  faith 
of  which  persons  had  dealt,  and  pledged  their  credit  or  ex- 
pended their  money.  It  is  a  doctrine,  therefore,  when  prop- 
erly understood  and  applied,  that  concludes  the  truth  in  order 
to  prevent  fraud  and  falsehood,  and  imposes  silence  on  a 
party  only  when  in  conscience  and  honesty  he  should  not  be 
allowed  to  speak."  ^  A  title  subsequently  acquired  by  the 
vendor  to  land  conveyed  at  a  sale  prohibited  by  law  will  not 

^  In  Van  Rensselaer  v.  Kearney,  59  Miss.  134;  Carter  v.  Bustamente, 
11  How.  297,  325,  13  L.  ed.  703,  59  Miss.  559;  Bradford  v.  Russell, 
715.     But  see  Cameron  v.  Lewis,      79  Ind.  64. 


1766 


THE   LAW    OF  DEEDS. 


[chap.    XXVI. 


pass  to  the  purchaser.'  An  heir  apparent  who  conveys  land 
in  which  his  interest  is  to  arise  will  be  estopped  by  his  deed.' 
If  a  grantor  having  no  title  executes  a  quitclaim  deed,  a  title 
subsequently  acquired  by  him  will  not  pass  to  the  grantee.* 
The  rule  concerning  the  passing  of  an  after-acquired  title  to 
the  grantee  applies  to  corporations  as  well  as  to  individuals.^ 

§  945.  The  necessity  for  a  covenant. — In  the  absence 
of  statutory  enactment,  the  general  rule  is  that  the  deed  must 
contain  a  covenant  of  some  kind  to  cause  an  after-acquired 
title  to  pass  by  estoppel.^  In  some  of  the  early  New  York 
cases,  it  was  held  that  an  after-acquired  title  passed  without 
any  covenant ; ''  but  these  cases  were  subsequently  overruled, 
and  the  doctrine  announced  that  a  subsequently  acquired  title 
would  not,  in  the  absence  of  some  covenant  or  stipulation, 
pass  to  the  grantee.'  If  land  is  conveyed  with  covenants  of 
warranty  in  payment  of  a  debt,  the  only  remedy  of  the 
grantee  in  case  the  title  proves  defective  is  upon  the  covenants 
in  the  deed.* 


2  Holmes  v.  Jones,  56  Tex.  41. 

SBohon  V.  Bohon,  78  Ky.  408. 
But  not  his  heirs,  it  seems,  if  there 
be  no  covenant  of  warranty. 

4  Benneson  v.  Aiken,  102  111.  284, 
40  Am.  Rep.  592. 

6  Jones  V.  Green,  41  Ark.  363. 

6  Dart  V.  Dart,  7  Conn.  256;  Mit- 
chell V.  Woodson,  37  Miss.  578; 
Bennett  v.  Waller,  23  111.  182 ;  Jack- 
son V.  Hubble,  1  Cowen,  613;  Var- 
ick  V.  Edwards,  1  Hoff.  Ch.  382; 
Fox  V.  Widgery,  4  Greenl.  218; 
Jackson  v.  Winslow,  9  Cowen,  18; 
Pelletreau  v.  Jackson,  11  Wend. 
119;  Jackson  v.  Bradford,  4  Wend. 
662;  Frink  v.  Darst,  14  111.  308, 
58  Am.  Dec.  575;  Doswell  v.  Bu- 
chanan, 3  Leigh,  365,  23  Am.  Dec. 
280;  Sparrow  v.  Kingman,  1  Const. 


247;  Taft  v.  Stevens,  3  Gray,  504; 
Howe  V.  Harrington,  18  N.  J.  Eq. 
(3  Green,  C.  E.)  495 ;  Freeman  v. 
Thayer,  29  Me.  369;  Tillotson  v. 
Kennedy,  5  Ala.  413,  39  Am.  Dec. 
330;  Comstock  v.  Smith,  13  Pick. 
116,  23  Am.  Dec.  670;  Kinsman  v. 
Loomis,  11  Ohio,  475;  Blanchard  v. 
Brooks,  12  Pick.  47.  See  Cadiz  v. 
Majors,  2Z  Cal.  288;  Quivey  v.  Ba- 
ker, Z7  Cal.  465;  Green  v.  Green, 
103  Cal.  408;  Dalton  v.  Hamilton, 
50  Cal.  423. 

'Jackson  v.  Bull,  1  Johns.  Cas. 
81 ;  Jackson  v.  Murray,  12  Johns. 
201. 

8  Jackson  v.  Wright,  14  Johns. 
193. 

^  Van  Riswirk  "^  Wallax^.  1  Mc- 
Ar.  388. 


CHAP.    XXVI.]  COVENANTS.  1767 

§  946.  Statutory  regulation. — In  several  of  the  States, 
it  is  provided  that  where  title  is  conveyed  by  grant,  an  after- 
acquired  title  will  pass  by  operation  of  law  to  the  grantee  and 
his  assigns.  Thus,  in  California,  the  provision  of  the  Civil 
Code  on  this  subject  is :  "Where  a  person  purports  by  pro- 
per instrument  to  grant  real  property  in  fee  simple,  and  sub- 
sequently acquires  any  title  or  claim  thereto,  the  same  passes 
by  operation  of  law  to  the  grantee,  or  his  successors."  ^  The 
court  commenting  upon  an  early  statute  of  the  same  purport 
said  that  the  effect  of  its  provisions  is  the  same  as  if  it  were 
written  upon  the  face  of  the  deed,  that  the  grantor  conveyed 
all  the  estate  which  he  then  possessed,  or  which  he  might  at 
any  time  afterward  acquire.^  Equity  will  not  allow  the 
grantor  to  deprive  the  grantee  of  the  benefit  of  the  after- 
acquired  title,  by  having  the  deed  made  to  a  third  person 
who  has  no  real  interest  in  the  transaction.^  Where  cove- 
nants for  title  are  contained  in  the  deed,  .the  after-acquired 
title  will  pass  with  the  same  effect  as  if  it  had  originally  been 
conveyed  to  the  grantee  and  his  successors.* 

1  Civil  Code  Cal.  §  1106.  And  (2  Humph.)  383;  Terrett  v.  Tay- 
see  Valle  v.  Clemens,  18  Mo.  490;  lor,  9  Cranch,  52,  3  L.  ed.  653;  Til- 
Gibson  V.  Chouteau,  39  Mo.  567;  lotson  v.  Kennedy,  5  Ala.  413,  39 
Bogy  V.  Shoab,  13  Mo.  379;  Geyer  Am.  Dec.  330;  Middlebury  College 
V.  Girard,  22  Mo.  159;  Amonett  v.  v.  Cheney,  1  Vt.  349;  Lawry  v.  Wil- 
Amis,  16  La.  Ann.  226 ;  Frink  v.  Hams,  13  Me.  281 ;  Baxter  v.  Brad- 
Darst,  14  111.  308,  58  Am.  Dec.  575;  bury,  20  Me.  260,  11  Am.  Dec.  49; 
Morrison  v.  Wilson,  30  Cal.  344;  Rathbun  v.  Rathbun,  6  Barb.  107; 
Green  v.  Clark,  31  Cal.  591;  San  Scott  v.  Douglas,  7  Ohio,  227;  Bar- 
Francisco  V.  Lawton,  18  Cal.  477,  ton  v.  Morris,  15  Ohio,  408;  Jack- 
79  Am.  Dec.  187.  son  v.  Winslow,  9  Cowen,  18 ;  Hoyt 

2  Clark  V.  Baker,  14  Cal.  612,  630,  v.  Dimon,  5  Day,  479;  Kellogg  v. 
76  Am.  Dec.  449.  Wood,   4   Paige,    578;    Williams   v. 

SQuivey   v.    Baker,   Zl    Cal.    465.  Thurlow,   31    Me.  395;    Kimball   v. 

*  Kimball  v.  Schoff,  40  N.  H.  190;  Blaisdell,  5  N.  H.  533,  22  Am.  Dec. 

Irvine  v.  Irvine,  9  Wall.  617,  19  L.  476;  Sparrow  v.  Kingman,  1  Const, 

ed.    800;    Funk    v.    Newcomer,    10  246;  Sherwood  v.  Barlow,  19  Conn. 

Md.  316;  Logan  v.  Moore,  7  Dana  476;   Pike  v.   Galvin,  29  Me.   183; 

76 ;     Paterson    v.    Pease,    5    Ohio,  Kennedy  v.  McCartney,  4  Port.  141 ; 

90;  Robertson  v.  Gaines,  21  Tenn.  Bean  v.  Welsh,  17  Ala.  112;  Pierce 


1768 


THE  LAW   OF  DEEDS. 


[chap.    XXVI. 


§  947.  Limitations  on  this  rule. — If  the  deed  is  im- 
perfectly executed,  and  for  this  reason  is  not  sufficient  to  pass 
the  title,  there  being  no  right  of  action,  there  is  no  estoppel.^ 
Where  the  grantor  uses  the  words  "right,  title,  and  interest," 
showing  that  he  intended  to  transfer  no  greater  title  than 
that  which  he  possessed,  an  after-acquired  title  will  not  pass 
by  estoppel.^  When  the  covenants  have  been  extinguished, 
no  estoppel  arises."'  The  grantor  may  acquire  a  title  by  the 
disseisin  of  his  grantee,  or  those  claiming  under  him,  and  ad- 
verse possession  for  the  requisite  time,  and  he  is  not  estopped 
from  asserting  the  title  thus  acquired  against  his  grantee.* 
"We  consider  that  a  grantee  can,   under  circumstances,  be 


V.  Milwaukee  R.  R.  Co.,  24  Wis. 
553,  1  Am.  Rep.  203;  Dickerson  v. 
Talbot,  14  Mon.  B.  64;  Dewolf  v. 
Haydn,  24  111.  525 ;  King  v.  Gilson, 
32  111.  348,  83  Am.  Dec.  269;  Reed- 
er  V.  Craig,  3  McCord,  411;  O'Ban- 
non  V.  Paremour,  24  Ga.  493; 
Somes  V.  Skinner,  3  Pick.  52 ;  Trull 
V.  Eastman,  3  Met.  121,  37  Am. 
Dec.  126;  Wade  v.  Lindsey,  6  Met. 
413;  Mason  v.  Muncaster,  9  Wheat. 
445,  6  L.  ed.  131;  Thorndike  v. 
Norris,  24  N.  H.  (4  Post.)  454; 
Jewell  V.  Porter,  31  N.  H.  (11 
Post.)  39;  Hayes  v.  Tabor,  41  N. 
H.  521 ;  Blake  v.  Tucker,  12  Vt.  44; 
Blanchard  v.  Brooks,  12  Pick.  47; 
Comstock  V.  Smith,  13  Pick.  116. 
23  Am.  Dec.  670;  Gibbs  v.  Thayer, 
6  Cush.  30;  Ruggles  v.  Barton,  13 
Gray,  506;  Thomas  v.  Stickle,  32 
Iowa,  72;  Massie  v.  Sebastian,  4 
Bibb,  436;  Logan  v.  Steel,  4  Mont. 
433;  Rigg  V.  Cook,  4  Gilm.  348,  46 
Am.  Dec.  462;  Jones  jV.  King.  25 
111.  384;  Bennett  v.  Waller,  23  111. 
183;  Gochenour  v.  Mowry,  33  111. 
333;  Mitchell  v.  Woodson,  37  Miss. 
578;    Wightman    v.    Reynolds,    24 


Miss.  675 ;  Davis  v.  Keller,  5  Rich. 
Eq.  434;  Brundred  v.  Walker,  1 
Beasl.    140. 

5  Connor  v.  McMurray,  2  Allen, 
104;  Patterson  v.  Pease,  5  Ohio, 
191 ;  Kercheval  v.  Triplett,  1  Marsh. 
A.  K.  493;  Wallace  v.  Miner,  6 
Ohio,  370.  See  Dominick  v.  Mi- 
chael, 4  Sand.  417. 

8  Blanchard  v.  Brooks,  12  Pick  47 ; 
Adams  v.  Ross,   1  Vroom,  509,  82 
Am.  Dec.  237;  White  v.  Brocaw,  14 
Ohio  St.  343.     And  see  Allen  v.  Hol- 
ton,  20  Pick  463 ;  Sweet  v.  Brown, 
12   Met.  175, 45   Am.  Dec.  243 ;  Bates 
V.  Foster,  59  Me.  158,  8  Am.  Rep. 
406;  Ballard  v.  Child,  46  Me.  153 
McNear  v.  McComber,  18  Iowa,  14 
Wynn    v.    Harman,    5    Gratt.    157 
Mills  V.  Catlin,  22  Vt.  98;  Whiting 
V.   Dewey,    15    Pick.  434;   Hubbard 
V.  Apthorp,  3  Cush.  419. 

^Goodel  V.  Bennett,  22  Wis.  565. 

8  Hines  v.  Robinson,  57  Me.  330, 
99  Am.  Dec.  112;  Stearns  v.  Hen- 
dersass,  9  Cush.  497,  57  Am.  Dec. 
65;  Johnson  v.  Farlow,  13  Ired.  84; 
Eddleman  v.  Carpenter,  7  Jones  (N. 
C),  616;   Reynolds  v.   Gathers,   5 


CHAP.    XXVI.]  COVENANTS.  1769 

disseised  by  his  own  grantor,  as  well  as  by  another."  '  An 
estoppel  does  not  arise  from  a  covenant  of  seisin  in  those 
States  where  an  actual  though  a  tortious  possession  is  suf- 
ficient to  satisfy  this  covenant.*  Where  the  grantor  covenants 
against  his  own  acts  only,  an  estoppel  will  not  be  created  by 
the  acquisition  of  another  title.'' 

§  948.  Estoppel  of  State. — Where  a  grant  is  made  by 
a  State,  a  general  rule  is,  that  the  doctrine  of  estoppel  ap- 
plies to  the  same  extent  as  if  the  conveyance  had  been  made 
by  a  private  individual.^  But  in  North  Carolina,  a  different 
view  obtains.  It  is  there  held  that  only  the  title  evidenced 
by  matter  of  record  will  pass  by  a  grant  made  by  the  sover- 
eign power,  and  hence  there  can  be  no  estoppel.* 

§  949.  Acquisition  of  title  by  trustee. — In  order  to 
create  an  estoppel  so  as  to  give  the  grantee  the  benefit  of  a 
title  subsequently  acquired  by  the  grantor,  such  title  must  be 
acquired  by  him  in  the  same  right  as  that  in  which  he  made 
his  deed.  If  the  grantor  executes  a  deed  in  his  own  right, 
and  afterward  acquires  a  title  to  the  same  property  as  trus- 
tee, the  doctrine  of  estoppel  manifestly  can  have  no  applica- 
tion.* 


Jones  (N.  C),  437;  Tilton  v.  Em-  Cornell,  3  Johns.  Cas.  174;  Magee 

ery,  17  N.  H.  536;  Smith  v.  Montes,  v.   Hallett,  22  Ala.   718;   Nieto   v. 

11  Tex.  24.  Carpenter,    7    Cal.    527;    Common- 

3  Franklin    v.    Dorland,    28    Cal.  wealth  v.  Pejepscot,  10  Mass.  155 ; 

175,    180,   87    Am.    Dec.    111.  Commonwealth   v.   Andre,   3   Pick. 

1  Allen  V.  Sayward,  5  Greenl.  231,  224. 

17  Am.  Dec.  221 ;  Fox  v.  Widgery,  *  Taylor    v.    Shuffold,   4    Hawks, 

4  Greenl.  218;  Doane  v.  Willcutt,  5  116,   15  Am.  Dec.  512;  Wallace  v. 

Gray,  333,  66  Am.  Dec.  369.  Maxwell,  10  Ired.  112,  51  Am.  Dec. 

2  Comstock  V.  Smith,  13  Pick.  380;  Candler  v.  Lunsford,  4  Dev.  & 
116,  23  Am.  Dec.  670.  B.   407. 

3  People  V.  Society,  2  Paine,  557 ;  ^  Sinclair  v.  Jackson,  8  Cowen, 
Carver  v.  Jackson,  4  Peters,  87,  7  587;  Jackson  v.  Mills,  13  Johns. 
L.  ed.  791;  Menard  v.  Massey,  8  463;  Burchard  v.  Hubbard,  11  Ohio, 
How.  313,  12  L.  ed.  1093;  Denn  v.  316;  Jackson  v.  Hoffman,  9  Cowen, 


1770  THE   LAW   OF   DEEDS.  [CHAP.    XXVt. 

§  950.  General  covenant  when  grantor's  interest  only 
conveyed. — It  will  be  admitted  that  where  a  deed,  either 
by  recital,  admission,  covenant,  or  otherwise,  distinctly  shows 
the  actual  intention  of  the  parties  to  have  been  to  convey  and 
receive  reciprocally  a  certain  estate,  they  are  estopped  from 
denying  the  operation  of  the  deed  in  accordance  with  this 
intent.  But  in  Oregon  a  case  arose  where  the  grantor  con- 
veyed all  his  right,  title,  and  interest  in  and  to  a  certain  lot, 
which  was  properly  described.  The  deed  also  contained  this 
covenant:  "That  I  am  the  owner  in  fee  simple  of  said  prem- 
ises ;  that  they  are  free  from  all  encumbrances,  and  that  I  will 
warrant  and  defend  the  same  from  all  lawful  claims  whatso- 
ever," The  grantor  owned,  however,  only  one-half  of  such 
lot.  An  action  was  brought  on  the  covenant,  and  the  de- 
fense made  was  that  the  grantor  did  not  sell  all  of  the  lot, 
but  only  the  right,  title,  and  interest  which  he  then  had  in 
the  lot,  and  that  the  half  of  the  lot  was  all  that  was  bargained 
for  at  the  time,  and  that  the  covenant  related  only  to  this, 
and  was  so  understood  at  the  time  of  purchase.  The  court, 
however,  held  that  the  grantor  was  estopped  from  asserting 
these  facts,  as  the  word  "premises"  used  in  the  covenant  re- 
ferred to  the  whole  of  the  lot,  and  not  to  the  one-half.^  If, 
however,  a  person  conveys  an  undivided  one-fourth  of  an 
estate  with  a  covenant  against  encumbrances,  and  as  guar- 
dian of  his  minor  child,  conveys  to  the  same  grantee  the  re- 
maining three-fourths  without  such  covenant,  the  grantee,  if 
forced  to  pay  an  assessment  of  betterments  laid  upon  the 

271.  It  is  not  necessary  that  the  Risley,  4  Or.  235 ;  Rawle  on  Cove- 
trust  should  be  expressed,  as  long  nants,  388;  Jackson  v.  Waldron,  8 
as  it  exists :  Kelley  v.  Jenness,  50  Wend.  178.  Mr.  Chief  Justice  Kelly 
Me.  455,  79  Am.  Dec.  623.  dissented,  however,  considering  that 
6  Bayley  v.  McCoy,  8  Or.  259,  the  word  "premises"  did  not'  mean 
citing  Van  Rensselaer  v.  Kearney,  the  entire  lot,  but  only  the  interest 
11  How.  325,  13  L.  ed.  715 ;  Fair-  sold,  and  saying  that  his  position 
banks  v.  Williamson,  7  Greenl.  96;  was  supported  by  the  case  of  Sum- 
Jackson  ex  dem  Monroe  v.  Park-  ner  v.  Williams,  8  Mass.  162,  5  Am. 
hurst,    9    Wend.    209;    Taggart    v.  Dec  83. 


CHAP.    XXVI.] 


COVENANTS. 


1771 


whole  estate,  which  became  an  encumbrance  before  the  exe- 
cution of  the  deeds,  can  recover  from  the  grantor  in  an  action 
on  the  covenant  only  one-quarter  of  the  amount  ahogether 
paid."'  But  a  general  covenant  will  not  enlarge  the  title  under 
a  deed  conveying  in  terms  the  grantor's  right,  title,  and  in- 
terest, but  will  be  confined  to  the  interest  of  the  grantor.' 

§  951.  Estoppel  of  grantee. — At  one  time  it  seems  to 
have  been  thought  that  a  grantee  by  accepting  the  deed  of 
his  grantor,  admitted  the  validity  of  his  title,  and  could  not 
show  that  it  was  defective  for  the  purpose  of  defeating  the 
wife's  right  to  dower.^  But  the  principle  is  now  firmly  es- 
tablished that  the  grantee  is  not  estopped  by  the  acceptance  of 
a  deed  from  disputing  the  grantor's  title,  either  as  against 
the  grantor  or  anyone  else.^ 


'  Smith  V.  Carney,  127  Mass.  179. 

8  Gibson  V.  Chouteau,  39  Mo. 
536;  Kimball  v.  Semple,  25  Cal.  440; 
Lee  V.  Moore,  14  Cal.  472 ;  McNear 
V.  McComber,  18  Iowa,  12;  Bowen 
V.  Thrall,  28  Vt.  382;  Cummings 
V.  Dearborn,  56  Vt.  441 ;  Marsh  v. 
Fish,  66  Vt.  213;  Hanrick  v.  Pat- 
rick, 119  U.  S.  156,  30  L.  ed.  396; 
Bates  V.  Foster,  59  Me.  157,  8  Am. 
Rep.  406;  Bryan  v.  Uland,  101  Ind. 
477;  Locke  v.  White,  89  Ind.  492; 
Habig  V.  Dodge,  127  Ind.  31 ;  Rey- 
nolds V.  Shaver,  59  Ark.  299,  43  Am. 
St.  Rep.  36;  Koenig  v.  Branson,  12> 
Mo.  634;  Stockwell  v.  Couillard, 
129  Mass.  231;  Blanchard  v. 
Brooks,  12  Pick.  47;  Allen  v.  Hol- 
ton,   20   Pick.   458. 

9  Collins  V.  Torry,  7  Johns.  278, 
5  Am.  Dec.  273;  Bowne  v.  Potter, 
17  Wend.  164;  Hitchcock  v.  Har- 
rington, 6  Johns.  290,  5  Am.  Dec. 
229;  Sherwood  v.  Vandenburgh,  2 
Hill,    308;    Hamblin    v.    Bank    of 


Cumberland,  19  Me.  69;  Gayle  v. 
Price,  5  Rich.  525;  Stimpson  v. 
Thomaston  Bank,  28  Me.  259; 
Hains  v.  Gardner,  1  Fairf.  383; 
Davis  V.   Darrow,    12  Wend.  65. 

^  Sparrow  v.  Kingman,  1  Const. 
245;  Finn  v.  Sleight,  8  Barb.  406; 
Gardner  v.  Greene,  5  R.  I.  104; 
Clee  V.  Seaman,  21  Mich.  287;  Blair 
V.  Smith,  16  Mo.  273;  Macklot  v. 
Dubreuil,  9  Mo.  483,  43  Am.  Dec. 
550 ;  Cutler  v.  Waddingham,  ZZ  Mo. 
282;  Joeckel  v.  Easton,  11  Mo.  118, 
47  Am.  Dec.  142;  Landes  v.  Per- 
kins, 12  Mo.  239;  Porter  v.  Sulli- 
van, 7  Gray,  441 ;  Kingman  v.  Spar- 
row, 12  Barb.  208;  Averill  v.  Wil- 
son, 4  Barb.  180.  Although  the 
covenantor  may  have  obtained  a 
discharge  in  bankruptcy,  the  estop- 
pel arising  from  his  covenants  will 
continue  to  operate  upon  the  es- 
tate: Stewart  v.  Anderson,  10  Ala. 
510;  Bush  v.  Cooper,  26  Miss.  599, 
59  Am.  Dec.  270;  Dorsey  v.  Gassa- 


1772 


THE   LAW    OF   DEEDS. 


[chap.   XXVI. 


§  952.     What  covenants  will  create  an  estoppel. — An 

estoppel,  of  course,  will  arise  from  a  covenant  of  warranty, 
and  in  a  majority  of  the  States  it  is  held  that  not  only  will 
it  create  an  estoppel,  but  will  have  the  effect  of  actual  trans- 
ferring the  estate.^  When  the  only  covenant  in  the  deed  is 
that  for  further  assurance,  this  has  been  considered  in  Wis- 
consin and  Illinois  as  possessing  the  same  power  for  the  pur- 
pose of  creating  an  estoppel  as  the  covenant  of  warranty;' 
but  in  Minnesota  and  Missouri  it  is  regarded  as  creating  only 
an  equity  in  favor  of  the  grantee,  which  he  may  enforce  by 
proper  proceedings  so  as  to  avail  himelf  of  the  after-acquired 
title.*  Attention  has  already  been  called  to  the  fact  that  in 
some  of  the  States,  the  covenants  for  seisin  and  good  right 
to  convey  are  satisfied  by  the  transfer  of  a  tortious  seisin, 
but  in  Mississippi  and  New  Hampshire,  covenants  for  good 
right  to  convey  and  for  quiet  enjoyment  will  create  an  estop- 
pel, so  as  to  affect  a  subsequently  acquired  title.^ 

§  953.  Implied  covenants. — At  common  law  a  cove- 
nant of  warranty  was  implied  from  an  exchange  of  lands. 
But  to  create  this  effect  it  was  necessary  to  use  the  word 
"escambium."  ^     So  at  common  law  a  covenant  of  warranty 


way,  2  Har.  &  J.  411,  3  Am.  Dec. 

557;  Chamberlin  v.  Meeder,  16  N. 
H.  384. 

2  Kimball  v.  Blaisdell,  57  N.  H. 
533,  22  Am.  Dec.  476;  Thomas  v. 
Stickle,  32  Iowa,  72;  Kennedy  v. 
McCartney,  4  Port.  141;  Hoyt  v. 
Dimon,  5  Day,  479;  Thorndike  v. 
Norris,  4  Fost.  (N.  H.)  454;  Dud- 
ley V.  Caldwell,  19  Conn.  226 ;  Jack- 
son V.  Winslow,  9  Cowen,  18; 
Somes  V.  Skinner,  3  Pick.  52;  Dick- 
erson  v.  Talbot,  14  Mon.  B.  65; 
Jones  V.  King,  25  111.  384 ;  Lawry  v. 
Williams,  13  Me.  281;  Davis  v. 
Keller,  5  Rich.  Eq.  434;  Baxter  v. 


Bradbury,  20  Me.  260,  37  Am.  Dec. 
49;  Williams  v.  Thurlow,  31  Me. 
395;  Blake  v.  Tucker,  12  Vt.  44; 
Ruggles    V.    Barton,    13    Gray,    506. 

3  Pierce  v.  Milwaukee  R.  R.,  24 
Wis.  553,  1  Am.  Rep.  203;  Bennett 
V.  Waller,  23  111.  183. 

*Hope  V.  Stone,  10  Minn.  141; 
Chauvin  v.  Wagner,  18  Mo.  531. 

6  Wightman  v.  Reynolds,  24  Miss. 
675 ;  Foss  v.  Strachm,  42  N.  H.  40. 

8  Bustard's  case,  4  Coke,  121 ; 
Grimes  v.  Redmon,  14  Mon.  B. 
237;  Dean  v.  Shelly,  7  Smith,  P. 
F.  427,  98  Am.  Dec.  235.  And  see 
Walker  v.  Renfro,  26  Tex.   142. 


CHAP.    XXVI.]  COVENANTS.  1773 

was  implied  from  a  partition  between  coparceners."'  But  it 
seems  that  in  a  partition  between  joint  tenants  and  tenants  in 
common,  no  such  covenant  was  impHed.*  In  many  of  the 
States  it  has  been  provided  by  statute  that  certain  covenants 
shall  be  implied  from  the  use  of  certain  words  in  the  deed. 
For  instance,  in  California,  the  use  of  the  word  "grant"  in 
a  deed  implies,  unless  restrained  by  express  terms,  the  follow- 
ing covenants:  "(1)  That  previous  to  the  time  of  the  exe- 
cution of  such  conveyance,  the  grantor  has  not  conveyed  the 
same  estate,  or  any  right,  title,  or  interest  therein,  to  any  per- 
son other  than  the  grantee.  (2)  That  such  estate  is  at  the 
time  of  the  execution  of  such  conveyance  free  from  encum- 
brances done,  made,  or  suffered  by  the  grantor,  or  any  per- 
son claiming  under  him."  *  Where  land  is  particularly  de- 
scribed by  metes  and  bounds,  and  an  enumeration  of  the  quan- 
tity of  acres  is  added,  the  latter  is  merely  a  matter  of  descrip- 
tion, and  a  covenant  for  quantity  will  not  be  implied  there- 
from, and  the  covenants  for  title  will  apply,  not  to  any  par- 
ticular number  of  acres,  but  only  to  the  land  contained  within 
the  designated  boundaries.^     But  if  it  is  apparent  from  the 

'See  Bustard's  case,  4  Coke,  121;  Fowler  v.   Smith,  2  Cal.  39;  Lyles 

Co.  Litt.  174o;  Walker  v.  Hall,  15  v.  Perrin,  134  Cal.  417,  66  Pac,  472, 

Ohio    St.    361,    86    Am.    Dec.    482;  and    see    also    for    other    examples 

Feather  v.  Strohoecker,  3  Pa.  508,  Hood  v.  Clark,  141  Ala.  397,  11  So. 

24  Am.  Dec.  342.  550;    Crawford    v.    McDonald,    84 

sWeiser  v.  Weiser,  5  Watts,  279,  Ark.  415,   106  S.  W.  206;  Steepler 

30  Am.  Dec.  313;  Cashion  v.  Faina,  v.  Silberberg,  220  Mo.  258,   119  S. 

47  Mo.   133 ;  Rector  v.  Waugh,   17  W.  418 ;  Waldemeyer  v.  Loebig,  222 

Mo.  26,  57  Am.   Dec.  251;   Morris  Mo.  540,    121   S.  W.  75;    Bullitt  v. 

V.    Harris,    9    Gill,    26;    Smith    v.  Coryell,  38  Tex.  Civ.  App.  42,  85  S. 

Sweringen,   26    Mo.    567;    Picot   v.  VV.  482;   Sherman  v.   Goodwin,   11 

Page,  26  Mo.  420.     See  Sawyers  v.  Ariz.  141,  89  Pac.  517;  Allen  v.  Cof- 

Cator,  8  Humph.  256,  287;  Patter-  fee,  85  Miss.  766,  38  So.  186. 
son  V.  Lanning,   10  Watts,   135,  36  i  Rogers  v.  Peebles,  72  Ala.  529 

Am.  Dec.  154;  Seaton  v.  Barry,  4  Whitehill   v.    Gotwalt,   3    Pa.    327 

Watts  &  S.  184.  Perkins  v.  Webster,  2  N.  H.  287 

9  Civil    Code    Cal.    §    1113.      See  Large  v.  Penn,  6  Serg.  &  R.  488 

Bryan  v.  Swain,  56  Cal.  616;  Law-  Tucker  v.  Cocke,  2  Rand.  51;  Roat 

fence  v.  Montgomery,  37  Cal.  183;  v.   Puff,  3   Barb.   353;   Bauskett  v. 


1774 


THE   LAW    OF   DEEDS. 


[chap.    XXVI. 


deed  itself  that  it  was  intended  to  assure  a  particular  quan- 
tity of  land  to  the  purchaser  by  the  covenants,  of  course  they 
will  have  this  effect.^  Where  the  land  conveyed  is  described 
as  bounded  by  a  street,  alley  or  other  way,  a  covenant  will  be 
implied  that  such  street,  alley,  or  other  way  exists.'  It  is 
said,  however,  that  this  rule  is  applicable  only  where  the 
grantor  owns  the  land  on  which  the  street,  alley  or  other  way 
is  supposed  to  be  located  and  that  if  he  does  not  own  it,  no 
covenant  will  be  implied.*  It  has  also  been  held  that  no  cov- 
enant or  warranty  can  be  implied  from  a  mere  recital  in  a 
deed  or  other  instrument.^ 

§  954.  Restriction  of  covenants. — Where  there  are 
several  covenants  having  the  same  object,  although  they  may 
be  distinct,  yet  restrictive  words  contained  in  the  first  cove- 
nant will  be  construed  as  extending  to  all.^     But  a  limited 


Jones,  2  Spear,  68;  Mann  v.  Pear- 
son, 2  Johns.  41 ;  Lorick  v.  Hawk- 
irfi,  1  Rich.  417;  Davis  v.  Atkins, 
9  Cush.  13;  Belden  v.  Seymour,  8 
Conn.  304,  21  Am.  Dec.  661;  Fer- 
guson V.  Dent,  8  Mo.  667;  Whal- 
lon  V.  Kauffman,  19  Johns.  101 ; 
Rickets  v.  Dickens,  1  Murph.  343,  4 
Am.  Dec.  555;  Huntly  v.  Waddell, 
12  Ired.  33.  See,  also,  Rich  v. 
Scales,  116  Tenn.  57,  91  S.  W.  50; 
Burbridge  v.  Sadler,  46  W.  Va. 
39,  32  S.  E.  1028;  Adams  v.  Baker, 
50  W.  Va.  249,  40  S.  E.  356;  Bras- 
sel  V.  Fisk,  45  So.  70,  153  Ala.  558. 

2  Steiner  v.  Baughman,  2  Jones, 
106;  Morris  v.  Owens,  3  Strob.  190; 
Pecare  v.  Chouteau,  13  Mo.  527. 
And  see  Kilmer  v.  Wilson,  49  Barb. 
88;  Long  Island  R.  R.  v.  Conklin, 
32  Barb.  388. 

STalbert  v.  Mason,  136  la.  373, 
14  L.R.A.(N.S.)  878,  113  N.  W. 
918,   125   Am.   St   Rep.   259;   Gar- 


stang  V.  Davenport,  90  la.  359,  57 
N.  VV.  876;  Loring  v.  Otis,  7  Gray, 
563 ;  Re  Sixty-Seventh  Street,  60 
How.  Pr.  264;  Greenwood  v.  Wil- 
ton, 23  N.  H.  261. 

*Fulmer  v.  Bates,  118  Tenn.  731, 
10  L.R.A.(N.S.)  964,  102  S.  W.  900, 
121  Am.  St.  Rep.   1059. 

sO'Sullivan  v.  Griffith,  153  Cal. 
502,  95  Pac.  873,  96  Pac.  323 ;  Rawle 
on  covenants,  sec.  280. 

6  Browning  v.  Wright,  2  Bos.  & 
P.  13;  Whallon  v.  Kauffman,  19 
Johns.  98;  Foord  v.  Wilson,  8 
Taunt.  543;  Davis  v.  Lyman,  6 
Conn.  252 ;  Miller  v.  Heller,  7  Serg. 

6  R.  32,  10  Am.  Dec.  413;  Stan- 
nard  v.  Forbes,  6  Ad.  &  E.  572. 
And  see  Howell  v.  Richards,  11 
East,  633;    Crossfield  v.   Morrison, 

7  Com.  B.  286;  Young  v.  Raincock, 
7  Com.  B.  310;  Dickinson  v. 
Hoomes,  8  Gratt.  353;  Estabrook  v. 
Smith,   6   Gray,   572,   66  Am.   Dec. 


CHAP.    XXVI.] 


COVENANTS. 


1775 


covenant  subsequently  occurring  will  not  restrain  the  first 
covenant  if  the  latter  is  general,  unless  this  be  the  express 
intention,  or  there  is  an  inconsistency  bet\veen  the  covenants."^ 
Nor  will  a  subsequent  limited  covenant  be  enlarged  by  a  pre- 
ceding general  covenant.*  Words  of  restriction  added  to  one 
covenant  do  not  affect  the  generality  of  others  when  they  are 
of  different  kinds  and  relate  to  different  things.^ 

§  955.  Liability  of  covenantor. — If  two  or  more  per- 
sons enter  into  a  covenant,  the  obligation  which  they  assume 
is  generally  presumed  to  be  a  joint  one.^  To  make  the  lia- 
bility several,  words  of  severance  should  be  used.^  Where 
the  common-law  restriction  upon  the  power  of  married  wom- 
en to  convey  their  separate  estate  prevails,  a  married  woman, 
by  the  execution  jointly  with  her  husband  of  a  deed  with 
covenants  of  her  estate,  does  not  become  liable  in  damages 
for  a  breach  of  the  covenants.^     Where  the  covenant  runs 


445;  Bricker  v.  Bricker,  11  Ohio 
St.  240;  Nind  v.  Marshall,  1  Brod. 
&  B.  319;  Duval  v.  Craig,  2  Wheat. 
45,  4  L.  ed.  180;  Norman  v.  Fos- 
ter, 1  Mod.  101 ;  Bender  v.  From- 
berger,  4  Dall.  441 ;  Allemong  v. 
Gray,  92  Va.  216,  23  S.  E.  298. 

TRowe   V.    Heath,   23   Tex.   619 
Gainsford  v.  Griffith,  1  Saund.  58 
Peters    v.    Grubb,    9    Harris,    460 
Summer  v.  Williams,  8  Mass.  162, 
5  Am.   Dec.  83.     And   see  Cornell 
V.  Jackson,  3  Cush.  506;   Smith  v. 
Compton,    3    Barn.    &    Adol.    189 
Phelps    V.    Decker,    10    Mass.    267 
Cole  V.  Hawes,  2  Johns.  Cas.  203 
Crum  V.  Lord,  23  Iowa,  219;  Attor- 
ney General  v.   Purmort,  5   Paige, 
620 ;  Duroe  v.  Stephens,  101  la.  358, 
70  N.  W.  610. 

8  Trenchard  v.  Hoskins,  Winch. 
91;  Rawle  on  Covenants  (4th  ed.), 
519. 


3  Crayford  v.  Crayford,  Cro.  Car. 
106;  Kean  v.  Strong,  9  Irish  Law, 
74. 

iCarleton  v.  Tyler,  16  Me.  392, 
33  Am.  Dec.  673 ;  Donohue  v.  Em- 
ery, 9  Met.  67 ;  Comings  v.  Little, 
24  Pick.  266;  Piatt  on  Covenants, 
117;  Shep.  Touchstone,  375;  Rawle 
on  Covenants  (4th  ed.),  536.  See 
Carthrae  v.  Browne,  3  Leigh,  98,  23 
Am.  Dec.  255 ;  Bradburne  v.  Bot- 
field,  14  Mees.  &  W.  559;  Anderson 
V.  Martindale,  1  East,  497. 

2  Fields  V.  Squires,  1  Deady,  366; 
Evans  v.  Sanders,  10  Mon.  B.  291 

3  Fowler  v.  Shearer,  7  Mass.  21 ; 
.Mdridge  v.  Burlison,  3  Blatchf. 
201 ;  Fletcher  v.  Coleman,  2  Head. 
388;  Porter  v.  Bradley,  7  R.  I.  541  ; 
Sumner  v.  Wentworth,  1  Tyler,  43 ; 
Wadleigh  v.  Glines,  6  N.  H.  17,  23 
Am.  Dec.  705;  Colcord  v.  Swan.  7 
Mass.   291;   Whitbeck  v.   Cook,   15 


1776 


THE   LAW    OF   DEEDS. 


[chap.   XXVL 


with  the  land  and  the  liability  of  the  covenantor  is  founded 
on  privity  of  estate,  the  action  is  local  in  its  character,  and 
the  land  must  be  within  the  jurisdiction  of  the  court  in  which 
the  action  is  prosecuted.* 

§  956.  Covenant  to  pay  mortgage.— A  grantor  may 
sue  a  grantee  who  has  taken  a  deed  with  the  stipulation  that 
he  will  pay  a  sum  due  on  a  certain  mortgage  then  existing 
on  the  property.^  "That  covenant,"  said  Mr.  Chief  Justice 
Beasley,  "is  an  absolute  one  to  pay  a  certain  sum  of  money, 
and  the  obligation  to  pay  was  entirely  disconnected  with  any 
act  to  be  done,  or  with  any  event  to  happen  in  the  future. 
The  assumed  duty  was  to  pay  the  stipulted  money  within  a 
reasonable  time,  and  by  the  failure  in  performing  that  duty 
the  covenant  was  broken.  As,  therefore,  on  the  breach  of  a 
covenant,  the  law  implies  nominal  damages  at  least,  actionable 
misconduct  on  the  part  of  the  defendant  is  shown  in  the 
declaration."  The  court  held  that  while  the  grantor  had  a 
cause  of  action,  yet  it  would  not  intimate  what  rate  of  dam- 
ages should  be  awarded  to  him,  as  the  covenant  was  to  pay 
the  mortgagee  and  not  the  grantor.** 

§  957.     Failure   of   title. — Where   there   has   been    no 
fraud,   mistake,   or  accident,   a  purphaser  who  has  taken  a 


Johns.  483,  8  Am.  Dec.  272;  Fal- 
mouth V.  Tibbatts,  16  Mon.  B.  641 ; 
Curd  V.  Dodds,  6  Bush,  685; 
Strawn  v.  Strawn,  50  111.  37 ;  Cham- 
bers V.  Spencer,  5  Watts,  406 ;  Nash 
V.  Spofford,  10  Met.  192,  43  Am 
Dec.  425;  Carpenter  v.  Schermer- 
horn,  2  Barb.  Ch.  314;  Hempstead 
V.  Easton,  33  Mo.  146;  Lowell  v. 
Daniels,  2  Gray,  168,  61  Am.  Dec. 
448;  Jackson  v.  Vanderheyden,  17 
Johns.  167,  8  Am.  Dec.  378;  Domi- 
nick  V.  Michael,  4  Sand.  374;  Mar- 
tin V.  Dwelly,  6  Wend.  9,  21  Am. 


Dec.  245 ;  Nunally  v.  White,  3  Met. 
(Ky.)   593. 

*  Clark  V.  Scudder,  6  Gray,  122; 
Birney  v.  Haim,  2  Litt.  262;  Lienow 
V.  Ellis,  6  Mass.  331 ;  White  v.  San- 
born, 6  N.  H.  220;  Mostyn  v.  Fa- 
brigas,  Cowp.  161,  1  Chitty  Plead- 
ing, 270. 

6  Golden  v.  Knapp,  41  N.  J.  L. 
215. 

6  Golden  v.  Knapp,  41  N.  J.  L. 
215.  And  see  Wilcox  v.  Musche, 
39  Mich.   101. 


CHAP.    XXVI.] 


COVENANTS. 


1777 


deed  without  covenants  has  no  right,  for  a  defect  in  the  title, 
or  for  the  existence  of  an  encumbrance,  to  detain  the  pur- 
chase money,  or  to  recover  it  in  case  of  payment.''  The  prior 
contract  for  the  purchase  is  merged  in  the  deed,  and  resort 
must  be  had  to  that  to  determine  the  rights  of  the  parties.' 


'See  Falconer  v.  Clark,  3  Md. 
Ch.  530,  7  Md.  178;  Buckner  v. 
Street,  15  Fed.  Rep.  365;  Soper  v. 
Stevens,  14  Me.  133;  Peabody  v. 
Phelps,  9  Cal.  213;  Reese  v.  Gor- 
don, 19  Cal.  147 ;  Young  v.  Adams, 
6  Mass.  182;  United  States  Bank 
V.  Bank  of  Georgia,  10  Wheat.  333, 
6  L.  ed.  334;  Doyle  v.  Knapp,  3 
Scam.  334 ;  Cannon  v.  White,  16  La. 
Ann.  89;  Nance  v.  Elliott,  3  Ired. 
Eq.  408;  Commonwealth  v.  Mc- 
Clanachan,  4  Rand.  482;  Laughery 
V.  McLean,  14  Ind.  108;  Lowry  v. 
Brown,  1  Cold.  457;  Sutton  v.  Sut- 
ton, 7  Gratt.  238,  56  Am.  Dec.  109 
Allen  V.  Pegram,  16  Iowa,  172 
Johnson  v.  Houghton,  19  Ind.  361 
Starkey  v.  Neese,  30  Ind.  224 ;  Beale 
V.  Sieveley,  8  Leigh,  658;  Carr  v. 
Roach,  2  Duer,  20;  Middle  Kauf  v. 
Barrick,  4  Gill.  300;  Butman  v. 
Hussey,  30  Me.  266;  Frost  v.  Ray- 
mond, 2  Caines,  192,  2  Am.  Dec. 
Deeds,  Vol.  U.— 112 


228;  Harris  v.  Morris,  4  Md.   Ch. 
530;  Condrey  v.  West,  11  111.  146 
Brandt   v.   Foster,    5    Clarke,   293 
Maney   v.    Porter,  3   Humph.   347 
Williamson  v.  Raney,  1  Freem.  Ch. 
114;    Alexander    v.    McCauley,    22 
Ark.  533 ;  Butler  v.  Miller,  IS  Mon. 
B.  627;  Allen  v.  Hopson,  1  Freem. 
Ch.  276;  Earle  v.  De  Witt,  6  Allen, 
526;  Abbott  v.  Allen,  2  Johns.  Ch. 
519,  7  Am.  Dec.  554;  Price  v.  Neale, 
3    Burr.    1355;    Jones    v.    Ryde,    5 
Taunt.    488;    Smith    v.    Mercer,    6 
Taunt.  76. 

8  Seitzinger  v.  Weaver,  1  Rawie, 
377 ;  Ludwick  v.  Huntzinger,  5 
Watts  &  S.  51;  Griffith  v.  Kemp- 
shall,  1  Clarke  Ch.  571 ;  Howes  v. 
Barker,  3  Johns.  506,  3  Am.  Dec. 
526;  Coleman  v.  Hart,  25  Ind.  256; 
Bull  V.  Willard,  9  Barb.  642; 
Houghtaling  v.  Lewis,  10  Johns. 
297. 


CHAPTER  XXVII. 


CONDITIONS,     LIMITATIONS,     RESERVATIONS,     EXCEPTIONS,     RE- 
STRICTIONS,  AND  STIPULATIONS. 


§  958.  Distinction  between  con- 
ditions precedent  and 
subsequent. 

959.  Fee  passes   upon  condition 

subsequent. 

960.  Absolute   deed  with  subse- 

quent grant  on  condition. 
96L     Subsequent    impossibility. 

962.  Prevention  of  performance 

of  condition. 

963.  Condition    against    sale    of 

intoxicating  liquors. 

963  a.  Construction  of  clauses 
against  sale  of  liquors. 

963  b.  Condition  inserted  to  en- 
able owner  to  maintain 
monopoly  of  liquor  sell- 
ing. 

963c.  Public  policy. 

964.  Conditions   precedent. 

965.  Restraint  on  alienation. 

966.  Restraint  upon  partition  by 

tenants  in  common. 

967.  Condition  against  putting  in 

windows. 

968.  Use  of   buildings   for  cer- 

tain purposes. 

968  a.  Enforcing  personal  contract 
of  grantor  against  gran- 
tee with  notice. 

968  b.  Technical  accuracy  not 
necessary. 

969.  Who  may  take  advantage  of 

breach. 

970.  Conditions    subsequent 

strictly  construed. 

1778 


971. 


972. 


973. 
974. 


970  a.  Sale   not   an   abandonment. 

970  b.  Clauses  construed  as  cov- 
enants rather  than  con- 
ditions. 

970  c.  Same    subject    continued. 

970d.  Condition  subsequent  when 
intent  clear. 
Some  instances  of  construc- 
tion. 
Time    for   performance   of 
condition. 

972  a.  Breach  of  condition  by  life 
tenant  destroys  remaind- 
er. 
Clear  proof  of  forfeiture. 
Distinction  between   condi- 
tions   and    limitations. 

974a.  Election  of  remedies  be- 
tween recission  and  ac- 
tion for  enforcement. 

975.  Appraisement   of    improve- 

ments. 
975  a.  Where  the  estate  conveyed 
is  less  than  the  fee. 

976.  Parol  condition. 
Effect  of  restriction. 
Deed    in    consideration    of 

certain  agreements. 
Reservations     and     excep- 
tions. 
Construing  a  reservation  as 
an  exception. 
980  a.  Title  founded  on  an  excep- 
tion. 
980  b.  Growing     crops     conveyed 
by  deed. 


977. 
978. 

979. 

980. 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS^  ETC. 


1779 


980  c. 

,  Reservation      of      growing 

989.     Construction    in    particular 

crops  by  parol. 

cases. 

981. 

Reservation    by    tenant    in 

989  a.  Removal  of  timber. 

common. 

990.     Restrictions     and     stipula- 

982.a 

.  Reservation  to  stranger  as 

tions. 

estoppel. 

990  a.  Offensive  occupations. 

983. 

Reservation    of    support   in 

990  b.  Building  lines. 

deed  to  trustees. 

990  c.  Extension  of  room,  window, 

984. 

Reservation  of  plants  mak- 

or piazza. 

ing  them  personal  prop- 

990 d.  Bay  windows. 

erty. 

990  e.  Restrictions   as  to  purpose 

985. 

Right  of  way. 

of  building  lots. 

985  a 

.  Right     to     pass     reserved 

991.     Removal   of   restriction. 

merely. 

991  a.  Reasonable    construction. 

986. 

Maintenance  of  tollhouse. 

991  b.  Public    policy. 

987. 

Unincorporated  town. 

991  c.  Changed  conditions  of  city. 

988. 

Passageway. 

§  958.  Distinction  between  conditions  precedent  and 
subsequent. — If  land  is  conveyed  upon  a  condition  prece- 
dent, the  title  will  not  pass  until  the  performance  of  the  con- 
dition. But  if  the  condition  is  subsequent,  the  title  passes  at 
the  time  at  which  the  deed  is  executed  and  delivered.*  Whether 
a  covenant  is  to  be  deemed  precedent  or  subsequent  depends 
upon  the  intention  of  the  parties  as  shown  by  the  instrument, 
and  not  upon  the  use  of  any  particular  set  of  technical  words." 
A  deed  was  made  with  the  condition  that  the  grantees  should 
build  and  maintain  a  dam  over  a  certain  brook  crossing  the 
land  embraced  in  the  deed,  and  that  such  dam  with  its  flood- 
gates and  sluiceways  might  be  used  by  the  grantors  for  hy- 
draulic purposes.  It  was  also  covenanted  that  if  the  grantors 
sustained  any  damages  in  case  of  a  break  in  the  dam  or  an 
overflow,  the  grantees  should  not  be  liable  unless  the  same 


iSheppard  v.  Thomas,  26  Ark. 
617.  See,  also,  Koch  v.  Streutcr, 
232  111.  594,  83  N.  E.  1072;  Ran- 
dall V.  Wentworth,  100  Me.  177,  60 
Atl.  871;  Spies  v.  R.  Co.  60  W. 
Va.  389,  55  S.  E.  464. 

sUnderhill   v.    The    Saratoga    & 


Washington  R.  R.  Co.,  20  Barb. 
556;  Shinn  v.  Roberts,  20  N.  J.  L. 
(Spencer),  435,  43  Am.  Dec.  636; 
Rogan  V.  Walker,  1  Wis.  527.  This 
section  was  quoted  as  authority  in 
The  Bank  of  Suisun  v.  Stark,  106 
Cal.  202. 


1780 


THE  LAW   OF   DEEDS. 


[chap.    XXVI. 


happened  through  their  gross  negHgence.  In  this  case,  the 
condition  did  not  necessarily  precede  the  vesting  of  the  es- 
tate, but  might  accompany  or  follow  it,  and  the  court  held  that 
the  condition  was  subsequent,  and  that  the  deed  passed  the  fee 
simple  subject  to  be  divested  by  a  neglect  or  refusal  to  per- 
form the  condition.'  Where  an  instrument  commencing  in 
the  ordinary  form  of  a  bargain  and  sale  deed,  and  purporting 
to  convey  to  the  grantees  in  consideration  of  a  sum  of  money 
certain  land,  and  authorizing  the  grantees  to  take  possession, 
sell,  and  convey  or  lease  the  prpoerty  in  the  name  of  the  grant- 
or, and  to  receive  the  purchase  money  and  rent,  declared  that 
the  grantor  would  not  sell  the  property  or  revoke  the  power 
unless  the  grantees  neglected  to  pay  the  sum  specified,  and 
contained  a  covenant  that  if  payment  was  made  at  the  stipu- 
lated time  the  instrument  should  operate  as  a  full  conveyance, 
which  effect  it  should  also  have  if  the  grantor  failed  to  fulfill 
his  part  of  the  agreement,  such  instrument  is  intended  as  a 
conveyance  upon  condition  precedent.  Until  performance  of 
the  condition,  the  grantees  can  acquire  no  title,  but  when  per- 
formed, the  grantees'  title  is  complete  without  further  action 
by  the  grantor.* 

§  959.     Fee  passes  upon  condition  subsequent. — ^The 
fee  passes  by  a  deed  upon  a  condition  subsequent,  in  the  same 


1 


3  Underbill  v.  The  Saratoga  & 
Washington  R.  R.  Co.,  20  Barb. 
556;  Glocke  v.  Glocke,  57  L.R.A. 
458,  113  Wis.  303,  89  N.  W.  118. 

4  Brennan  v.  Mesick,  10  Cal.  95. 
See  Mesick  v.  Sunderland,  6  Cal. 
297.  See,  also,  Cheete  v.  Wash- 
burn, 44  Minn.  312.  It  is  a  ques- 
tion of  intention  whether  a  condi- 
tion is  precedent  or  subsequent,  and 
this  intention  is  to  be  derived  from 
the  deed  as  a  whole ;  Mesick  v.  Sun- 
derland, 6  Cal.  297;  Blacksmith  v. 


Fellows,  7  N.  Y.  401;  Martin  v. 
Ballon,  13  Barb.  119;  Finlay  v. 
King,  3  Pet.  346,  7  L.  ed.  701; 
Chapin  v.  School  District,  35  N. 
H.  445;  Rogan  v.  Walker,  1  Wis. 
527;  Home  v.  Dorrance,  2  Dall. 
304;  Raley  v.  Umatilla  Co.,  15  Or. 
172,  3  Am.  St  Rep.  142,  13  Pac. 
Rep.  890;  Jones  v.  Chesapeake  & 
O.  R.  Co.,  14  W.  Va.  514;  Shinn  v. 
Roberts,  20  N.  J.  L.  435,  43  Am. 
Dec.  636;  Osgood  v.  Abbott,  58  Me. 
72. 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS^  ETC.  1781 

manner  and  to  the  same  extent  as  if  the  condition  did  not 
exist,  subject  to  the  contingency  of  being  defeated  as  provided 
in  the  condition,  the  grantor  possessing  a  right  of  entry  upon 
condition  broken.^  This  is  true,  even  M^here  a  homestead  is 
conveyed  upon  condition  that  the  grantee  shall  make  certain 
specified  payments,  and  the  deed  provides  that  when  the  condi- 
tions have  been  performed  the  title  shall  vest  in  the  grantee 
absolutely.^  The  word  "family,"  where  a  deed  is  made  on 
condition  that  the  grantor  and  his  family  should  have  free 
passage  from  a  railroad  company,  means  those  living  in  the 
grantor's  house  and  under  his  management,  and  does  not  in- 
clude a  granddaughter  not  living  with  him.'  A,  who  was  the 
owner  of  a  lot,  gave  a  bond  to  B,  by  which  he  obligated  him- 
self to  convey  the  lot  to  B,  whenever  the  latter  should  convey 
to  A  or  his  assigns  a  certain  other  lot.  A  subsequently  exe- 
cuted a  deed  to  C  of  the  lot,  on  condition  that  the  grantee 
should  convey  it  to  B  whenever  B  tendered  a  like  deed  of  the 
lot  to  be  granted  as  provided  in  the  bond,  and  took  back  a 
mortgage  upon  it  with  the  same  condition  inserted.  At  the 
same  time  that  C  executed  the  mortgage  to  A,  he  executed  a 
warranty  deed  to  B  containing  the  clause  "for  conditions  and 
obligations  see  said  deed  from  A  to  me,"  but  did  not  receive 
the  other  lot  in  exchange.  It  was  held  that  A's  deed  to  C 
passed  the  title  subject  only  to  defeasance  upon  breach  of  the 
condition,  and  that  C's  deed  to  B  conveyed  the  lot  subject  to 
the  mortgage  from  C  to  A}  After  the  breach  of  a  condition 
subsequent,  the  estate  vested  in  the  grantee  is  not  divested  at 

6  Memphis   &    Charleston    R.    R.  Me.   177,  60  Atl.  871;   Spies  v.   R. 

Co.    V.    Neighbors,    51    Miss.    412;  Co.,  60  W.  Va.  389,  55  S.  E.  464. 

Spect  V.  Gregg,  51  Cal.   198.     See  « The  Bank  of  Suifun  v.  Stark, 

SpoflFord  V.  True,  33  Me.  283,  54  106  Cal.  202. 

Am.  Dec.  621 ;  Evenson  v.  Webster,  '  Dodge  v.   Boston  etc.   Ry.   Co., 

3   S.   Dak.   382,   44   Am.    St.    Rep.  154   Mass.   299,    13  L.R.A.   318,   28 

802.    See  also  S.  v.  Salt  Lake  City,  N.  E.  243. 

29   Utah   361,   81    Pac.   273;    Koch  8  Shattuck  v.  Hastings,  99  Mass, 

V.   Streuter,  232  111.  594,  83   N.   E.  23. 
K)72;    Randall   v.   Wentworth,    100 


1782 


THE  LAW    OF   DEEDS. 


[chap.    XXVI. 


common  law  until  an  actual  entry  by  one  having  the  right  to 
enter  for  the  forfeiture.'  At  the  present  day  an  action  of 
ejectment  would  have  the  same  effect.^  The  waiver  of  a  for- 
feiture may  be  inferred  from  the  neglect  of  the  party  entitled 
to  the  estate  to  assert  his  claim  in  a  reasonable  time  after  the 
termination  of  the  estate.^    Where  land  was  conveyed  on  con- 


9  Willard  v.  Henry,  2  N.  H.  120 ; 
Osgood  V.  Abbott,  58  Me.  11 ;  Cross 
V.  Carson,  8  Blackf.  138,  44  Am. 
Dec.  742;  Hubbard  v.  Hubbard,  97 
Mass.  188,  93  Am.  Dec.  75 ;  Chalker 
V.  Chalker,  1  Conn.  79,  6  Am.  Dec. 
206;  Kenner  v.  American  Contract 
Co.,  9  Bush,  202 ;  Phelps  v.  Chesson, 
12  Ired.  194  And  see  Thomas  v. 
Record,  47  Me.  500,  74  Am.  Dec. 
500;  Chapman  v.  Pingree,  67  Me. 
198;  Guild  v.  Richards,  16  Gray, 
309;  Memphis  R.  R.  Co.  v.  Neigh- 
bors, 51  Miss.  412;  Chalker  v. 
Chalker,  1  Conn.  79,  6  Am.  Dec. 
206;  Frost  v.  Butler,  7  Greenl.  225, 
22  Am.   Dec.   199. 

1  Osgood  V.  Abbott,  58  Me.  IZ; 
Green  v.  Pettingill,  47  N.  H.  375,  93 
Am.  Dec.  444.  And  see  McKelway 
V.  Seymour,  29  N.  J.  L.  321; 
Stearns  v.  Harris,  8  Allen,  598; 
Austin  V.  Cambridgeport  Parish,  21 
Pick.  224 ;  Tallman  v.  Snow,  35  Me. 
342;  Canal  Co.  v.  Railroad  Co.,  4 
Gill.  &  J.  1,  121 ;  Cory  v.  Cory,  86 
Ind.  567. 

2  Kenner  v.  American  Contract 
Co.,  9  Bush,  202;  Willard  v.  Henry, 
2  N.  H.  120 ;  Ludlow  v.  New  York 
etc.  R.  R.,  12  Barb.  440;  Hooper  v. 
Cummings,  45  Me.  359.  In  the 
case  first  cited  the  court  said  :  "The 
more  modern  authorities  on  the 
subject  of  such  forfeitures  estab- 
lish the  doctrine  that  it  is  with  the 
party  in  whose  favor  the  condition 


is,  or  who  becomes  entitled  to  the 
estate  by  reason  of  the  forfeiture, 
to  say  whether  the  estate  shall  be 
forfeited  or  not;  and  although  the 
user  from  which  the  grant  of  a 
public  passway  may  be  implied  must 
have  continued  for  a  period  re- 
quired to  toll  the  right  of  entry  in 
ejectment,  the  waiver  of  a  forfeit- 
ure may  nevertheless  be  inferred 
by  reason  of  the  failure  of  the  par- 
ty entitled  to  the  estate  to  re-enter 
or  assert  some  claim  in  a  reason- 
able time  terminating  the  estate; 
and  particularly  in  a  case  where 
the  party  to  whom  the  grant  is 
made  is  permitted  to  use  and  make 
valuable  improvements  on  the  prem- 
ises after  the  condition  is  broken. 
The  courts  adjudge  the  waiver  of 
the  forfeiture  upon  the  principle 
that  the  happening  of  the  condition 
does  not  ipso  facto  determine  the 
estate,  the  same  remaining  in  the 
grantee,  but  only  subjects  it  to  be 
defeated  at  the  election  of  the  gran- 
tor and  his  heirs,  etc;  and  for  the 
additional  reason  that  the  for- 
feitures of  estates  are  not  favored 
either  in  courts  of  law  or  equity." 
See  Jackson  v.  Crysler,  1  Johns. 
126;  Doe  v.  Gladwin,  6  Q.  B.  (51 
Eng.  C.  L.)  953;  Williams  v.  Da- 
kin,  22  Wend.  209;  Sharon  Iron 
Co.  v.  City  of  Erie,  41  Pa.  St.  349; 
Gray  v.  Blanchard,  8  Pick.  284. 
But    a    mere    acquiescence    in    the 


CHAP.    XXVII.]        CONDITIONS,    LIMITATIONS,    ETC.  1783 

dition  that  it  should  be  used  for  a  burying  ground,  and  that 
the  grantee  should  erect  and  maintain  a  fence  around  the  land, 
and  where  it  was  used  for  the  purposes  intended  for  many- 
years,  but  no  fence  had  ever  been  erected,  and  no  complaint 
had  ever  been  made  of  the  failure  to  build  the  fence,  it  was 
said  to  be  too  late  for  the  successor  in  interest  of  the  grantor 
to  enter  for  breach  of  the  condition.' 

§  960.  Absolute  deed  with  subsequent  grant  on  con- 
dition.— An  absolute  deed  of  land  conveys  the  title  to  the 
grantee.  If  the  grantor  subsequently  executes  a  conveyance 
to  the  grantee  or  the  latter's  grantee  charged  with  conditions, 
the  conditions  can  have  no  operative  effect,  because  there  is 
no  estate  remaining  in  the  grantor.* 

§  961.  Subsequent  impossibility. — Conditions  subse- 
quent, incapable  of  execution  at  the  time  at  which  they  are 
made,  or  subsequently  becoming  impossible,  either  by  the  act 
of  God  or  of  law,  do  not  have  the  effect  of  divesting  the  es- 
tate vested  in  the  grantee.  As  the  condition  cannot  be  per- 
formed, the  grantee  is  not  at  fault.^     If  at  the  time  of  the 

breach   of    a   condition    without   a  rick,  31  Ky.  L.  Rep.  287,  102  S.  W. 

license  would  not  constitute  a  waiv-  237. 

er  of  subsequent  breaches  :  Hubbard  *  Alemany  v.  Daly,  36  Cal.  90. 

V.  Hubbard,  97  Mass.  192,  93  Am.  ^  Merrill  v.  Emory,  10  Pick.  507 : 

Dec.  75 ;  Guild  v.  Richards,  16  Gray,  Taylor  v.  Stratton,   15  Ga.  103,  60 

326;    Andrews    v.    Senter,    32    Me.  Am.  Dec.  682;  United  States  v.  Ar- 

397;    Gray   v.    Blanchard,   8    Pick.  redondo,  6  Pet.  691,  8  L.  ed.  547; 

284;  Cleveland  etc.  Ry  Co.  v.  Co-  Hughes  v.  Edwards,  9  Wheat.  489, 

burn,  91  Ind.  557.     Waiver  may  be  6  L.  ed.  142;  Taylor  v.  Sutton,  15 

inferred  from  a  failure  to  re-enter ;  Ga.    103,    60    Am.    Dec.    682.      See 

Marsh  v.  Bloom,  133  Wis.  646,  14  Barksdale  v.   Elam,  30  Miss.  694; 

L.R.A.(N.S.)  1187,  114  N.  W.  457;  Brandon  v.  Robinson,  18  Ves.  428; 

Rannels    v.    Rowe',    145    Fed.    296,  Blackstone  Bank  v.  Davis,  12  Pick. 

74  C.  C.  A.  376.  42,  32  Am.  Dec.  241 ;  Jones  v.  Doe, 

sScoville  V.  McMahon,  62  Conn.  2   111.   276;   Bradley  v.    Peixoto,   3 

378,  21  L.R.A.  58,  36  Am.  St.  Rep.  Ves.   324;    Gadberry   v.    Sheppard, 

350'.    See,  also,  School  DisL  v.  Pat-  27  Miss.  203;   Badlam  v.   Tucker, 


1784 


THE  LAW    OF   DEEDS. 


[chap.    XXVI. 


execution  of  an  absolute  deed  the  grantee  delivers  a  writing 
to  the  grantor,  stating  that  the  "deed  shall  be  null  and  void," 
unless  the  grantee  shall  procure  two  witnesses  to  testify  to 
certain  things,  and  that  in  case  he  succeeds  in  obaining  such 
witnesses  the  deed  shall  operate  only  as  a  mortgage,  the  legal 
title  has  been  conveyed  with  an  unlawful  condition  subse- 
quent. In  such  a  case  the  grantor  must  bear  the  loss.  He 
can  neither  in  law  nor  in  equity  recover  the  title.^  But  if  the 
grantor  purchases  the  land  back,  and  executes  a  mortgage  as 
security  for  the  payment  of  the  purchase  money,  he  cannot 
defeat  the  enforcement  of  the  mortgage  for  the  reason  that 
the  condition  subsequent  was  against  public  policy,  or  that 
there  was  no  consideration.'  Where  a  husband  and  wife, 
grantors,  execute  a  conveyance  with  the  condition  that  they 
shall  retain  the  entire  use  and  control  of  the  property  so  long 
as  they,  or  either  of  them,  shall  live,  a  court  of  equity  has 
power  to  determine  the  rights  of  the  parties,  and  for  the  pur- 
pose of  preventing  future  complications  may  decree  the  exe- 
cution of  a  formal  conveyance  of  the  fee  from  the  grantors 
to  the  grantee,  and  a  reconveyance  by  the  latter  for  the  lives 
of  the  grantors.*  A  condition  repugnant  to  the  grant  is  void.' 
Where  a  deed  is  made  on  the  condition  subsequent  that  the 


1  Pick.  284,  11  Am.  Dec.  202; 
Davis  V.  Gray,  16  Wall.  203 ;  Rogers 
V.  Sebastian  Co.,  21  Ark.  440;  Burn- 
ham  V.  Burnham,  79  Wis.  557,  48 
N.  W.  Rep.  661 ;  Culin's  Appeal, 
20  Pa.  St.  243 ;  Whitney  v.  Spencer, 
4  Cow.  39;  Jones  v.  Walker,  13 
B.  Men.  163,  56  Am.  Dec.  557 ;  Ran- 
dall V.  IVIarble,  69  Mead.  310,  31 
Am.  Rep.  281 ;  Jones  v.  Chesapeake 
etc.  R.  R.  Co.,  14  W.  Va.  514;  Lamb 
V.  Miller,  18  Pa.  St.  448;  Morse  v. 
Hayden,  82  Me.  227 ;  Martin  v.  Bal- 
lon, 13  Barb.  119;  Parker  v.  Parker, 
123  Mass.  584;  Wheeler  v.  Moody, 
9  Tex.  372. 


*  Patterson  v.  Donner,  48  CaL 
369. 

'I  Patterson  t.  Donner,  48  Gal. 
369. 

8  Chandler  v.  Chandler,  55  Cal. 
267. 

»  Littlefield  v.  Mott,  14  R.  I.  288 ; 
Pynchon  v.  Stearns,  11  Met.  312, 
45  Am.  Dec.  210;  Gadberry  v.  Shep- 
pard,  27  Miss.  203 ;  Taylor^  v.  Sut- 
ton, 15  Ga.  103,  60  Am.  Dec  682; 
Bassett  v.  Budlong,  77  Mich.  2>2&, 
18  Am.  St  Rep.  404. 


fcHAP.    XXVII.]    CONDITIONS,  LIMITATIONS^  ETC.  1785 

premises  should  be  used  as  a  cemetery,  and  an  act  of  the 
legislature  renders  further  performance  of  the  condition  un- 
lawful, the  condition  is  discharged,  and  the  title  of  the  grantee 
is  no  longer  subject  to  it.* 

§  962.     Prevention    of    performance    of    condition. — 

Where  the  grantor  prevents  the  performance  of  a  condition, 
its  nonperformance  will  be  excused.^  Where  a  grantor  con- 
veyed an  undivided  third  of  a  tract  of  land,  upon  the  condition 
that  the  grantee  should  proceed  to  recover  the  possession  of 
the  lot  at  his  own  expense,  by  legal  proceedings,  and  the 
grantee  employed  a  competent  attorney,  who  assumed  the 
management  of  an  action  then  pending  against  the  parties  in 
the  possession  of  the  land,  and  subsequently,  on  the  motion  of 
the  grantor,  and  against  the  wishes  of  the  grantee  and  his  at- 
torney, another  attorney  was  substituted,  who  dismissed  the 
action  and  instituted  another  in  which  the  possession  of  the 
land  was  recovered,  it  was  held  that  the  action  of  the  grantor 
excused  the  nonperformance  of  the  condition  by  the  grantee.' 

1  Scoville  V.  McMahon,  62  Conn.  estate :  Alemany  v.  Daly,  36  Cal. 
378,  21  L.R.A.  58,  36  Am.  St.  Rep.  90.  The  condition  must  be  ex- 
350.  See,  also,  Ricketts  v.  Louis-  pressed  in  the  deed  or  in  some 
ville  etc.  Ry.  Co.,  91  Ky.  221,  11  writing  referring  to  it :  Thompson 
L.R.A.  422,  34  Am.  St.  Rep.  176.  v.  Thompson,  9  Ind.  323,  68  Am. 

2  Jones  V.  Chesapeake  &  Ohio  R.  Dec.  638;  Scantlin  v.  Garvin,  46 
R.  Co.,  14  W.  Va.  514;  Houghton  Ind.  262;  Marshall  Co.  High  School 
V.  Steele,  58  Cal.  421,  and  cases  v.  Iowa  Synod,  28  Iowa,  360; 
cited;  Jones  v.  Walker,  13  B.  Mon.  Schwalbach  v.  Chicago  M.  &  St. 
163,  56  Am.  Dec.  557;  Mezell  v.  P.  Ry.  Co.,  12,  Wis.  137;  Moser  v. 
Burnett,  4  Jones  L.  249,  69  Am.  Miller,  7  Watts,  156;  Galveston 
Dec.  744;  Elkhart  Car  Co.  v.  Ellis,  etc.  Ry.  Co.  v.  Pfeufifer,  59  Tex. 
113  Ind.  215,  15  N.  E.  Rep.  249;  66;  Gaberry  v.  Sheppard,  27  Miss. 
Young  V.  Hunter,  6  N.  Y.  203 ;  203.  A  deed  by  referring  to  anoth- 
Leonard  v.  Smith,  80  Iowa,  194;  er  instrument  containing  a  condi- 
Gray  v.  Blanchard,  8  Pick.  284.  tion   may,   by  reference,   adopt  the 

'  Houghton  V.  Steele,  58  Cal.  421.  condition:      Bear     v.     Whisler,     7 

A  grantor  cannot,  after  the  execu-  Watts,   144;  Merritt  v.  Harris,  102 

tion   and   delivery   of   a   deed,    im-  Mass.  326. 
pose  conditions,  for  he  then  has  no 


1786 


THE  LAW   OF   DEEDS. 


[chap.    XXVI. 


§  963.  Condition  against  sale  of  intoxicating  liquors. — 
A  condition  inserted  in  a  deed  that  intoxicating  liquors  shall 
never  be  manufactured  or  sold,  or  disposed  of  as  a  beverage 
in  any  place  of  public  resort  upon  the  land  conveyed  by  the 
deed,  and  providing  that  in  case  of  a  breach  of  the  condition 
by  the  grantee  or  his  assigns,  the  deed  shall  become  null  and 
void,  and  the  title  thereupon  shall  revert  to  the  grantor,  is  not 
repugnant  to  the  estate  granted,  nor  is  it  unlawful  or  against 
public  policy.*  In  a  suit  to  obtain  the  benefit  of  the  forfeiture, 
the  grantee  is  estopped  from  denying  the  validity  of  the  title 
conveyed  by  the  deed  under  which  he  acquired  possession.^ 
Such  a  condition,  until  broken,  runs  with  the  land.^  No  for- 
feiture will  occur  by  reason  of  a  sale  which  is  not  chargeable 
to  the  fault  or  negligence  of  the  grantee,  and  the  question  of 
the  grantee's  knowledge  or  negligence  is  one  of  fact.'  A 
condition  of  this  character  is  a  condition  subsequent.' 

§  963a.  Construction  of  clauses  against  sale  of  liquors. 
— A  clause :  "Provided  always,  and  these  presents  are 
upon  the  express  condition  that  the  aforesaid  premises  shall 


4CoweIl  V.  Springs  Co.,  100  U. 
S.  55,  25  L.  ed.  547;  Plumb  v. 
Tubbs,  41  N.  Y.  442;  Collins  v. 
Marcey,  25  Conn.  242;  O'Brien  v. 
Wetherell,  14  Kan.  616;  Jenks  v. 
Pawlowski.  98  Mich.  110,  39  Am. 
St.  Rep.  522;  Bad  River  Lumber- 
ing etc.  Co.  V.  Kaiser,  82  Wis.  116, 
33  Am.  St.  Rep.  29 ;  Chippewa  Lum- 
ber Co.  V.  Tremper,  75  Mich.  36, 
13  Am.  St.  Rep.  420;  Sioux  City 
etc.  R.  R.  Co.  V.  Singer,  49  Minn. 
301,  15  L.R.A.  751,  51  N.  W.  905, 
32  Am.  St.  Rep.  554;  Smith  v. 
Barrie,  56  Mich.  314,  56  Am.  Rep. 
391 ;  Lehigh  Coal  etc.  Co.  v.  Early, 
162  Pa.  St.  338,  29  Atl.  Rep.  736; 
Odessa  Improvement  Co.  v.  Daw- 
son,  5   Tex.    Civ.    App.   487.     See 


also  Sioux  City  etc  R.  Co.  v.  Davis, 
49  Minn.  308,  51  N.  W.  907;  Min. 
Co.  V.  Mulari,  152  Mich.  607,  116 
N.  W.  360;  Jetter  v.  Lyon,  70  Neb. 
429,  97  N.  W.  596;  Watrous  v. 
Allen,  57  Mich.  362,  24  N.  W.  104, 
58  Am.  Rep.  363 ;  Fly  v.  Guinn, 
2  Tex.  Unrep.  Cas.  300;  Halcher 
V.  Andrews,  5  Bush  (Ky.)  561; 
Plumb  V.  Tubbs,  41  N.  Y.  442. 

5  Cowell  V.  Springs  Co.,  100  U.  S. 
55,  25  L.  ed.  547. 

6  O'Brien  v.  Wetherell,  14  Kan. 
616. 

'  Collins  V.  Marcy,  25  Conn.  242. 
And  see,  also,  Barrie  v.  Smith,  47 
Mich.  130. 

8  Jeffrey  v.  Graham,  61  Tex.  481. 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS,  ETC.  1787 

not  be,  nor  shall  any  part  thereof,  or  any  building  or  build- 
ings thereon  erected  or  to  be  erected,  be  at  any  time  hereafter 
used  or  occupied  as  a  tavern  or  public  house  of  any  kind," 
will  be  construed  as  a  mere  covenant,  and  not  as  a  condition 
subsequent,  a  breach  of  which  will  defeat  the  title.'  By  an 
agreement  not  to  use  a  drugstore  for  the  sale  of  intoxicating 
liquors,  the  keeping  of  a  drugstore  where  liquors  are  sold  in 
the  manner  usual  with  druggists,  but  not  to  be  drunk  upon 
the  premises,  is  not  prohibited.^  Where  one  parcel  of  land  is 
conveyed  with  a  restriction  against  the  sale  of  intoxicating  li- 
quors, and  the  grantor  subsequently  conveys  adjoining  land 
to  another  without  such  restriction,  he  waives  the  right  to  en- 
force the  restriction  contained  in  the  first  deed,  even  though 
the  omission  of  the  restriction  in  the  second  deed  was  by  mis- 
take, if  no  step  has  been  taken  to  correct  the  mistake.^  Such 
a  condition  is  valid,  though  such  sales  are  not  illegal.^ 

§  963b.  Condition  inserted  to  enable  ov^rner  to  main- 
tain monopoly  of  liquor  selling. — While  there  can  be  no 
question  that  a  condition  inserted  in  a  deed  for  the  prohibi- 
tion of  the  sale  of  intoxicating  liquor  is  perfectly  valid,  yet 
this  condition  must  be  inserted  for  an  honest  purpose.  The 
law  is  just  as  firm  against  the  creation  of  a  monopoly  as  it 
is  in  the  enforcement  of  a  condition,  otherwise  valid,  in  a 
deed.  It  will  not  allow  a  man  to  create  a  monopoly  in  him- 
self for  the  sale  of  whisky.  In  the  words  of  Mr.  Justice 
Morse:  "Courts  will  not  enforce  such  a  condition  inserted 
for  a  dishonest  purpose,  and  to  the  end  that  the  grantor  may 
thereby  obtain  a  monopoly  in  any  business,  and  all  others  be 
restrained  therefrom,  and  there  can  be  no  difference  in  this 

9  Post  V.   Weil,    115    N.   Y.   361,  110,  22  L.R.A.  863,  39  Am.  St.  Rep. 

5  L.R.A.  422,  12  Am.  St.  Rep.  809.  522. 

1  Hall  V.  Solomon,  61  Conn.  476,  3  Smith  v.   Barrie,  56  Mich.  314, 

29  Am.  St.  Rep.  218.  56  Am.  Rep.  391. 

2Jenks  V.   Pawlowski,  98  Midi. 


1788  THE  LAW   OF   DEEDS.  [CHAP.    XXVI. 

regard  whether  the  business  so  sought  to  be  centered  in  one 
person  in  a  community  is  one  acknowledged  by  every  one  to 
be  of  great  benefit  to  mankind,  or  one  regarded  by  many 
good  people  of  detriment  to  the  community,  provided  both  are 
lawful;  and  certainly  one  cannot  ask  a  court  of  justice  to  en- 
force such  a  condition  as  this  against  a  person  selling  liquor 
otherwise  lawfully,  that  he  may  reap  the  benefit  of  unlawful 
sales.  Courts  will  not  enforce  forfeitures  of  estates  for  any 
such  purposes."  *  For  the  purpose  of  showing  a  waiver  of 
such  a  condition  in  a  deed,  the  grantee  may  prove  that  the 
grantor's  agent  is  engaged,  with  the  knowledge  of  the  grantor, 
in  the  unlawful  sale  of  liquor  in  the  tract  subject  to  the  con- 
dition. The  jury  are  authorized  from  such  evidence  to  draw 
the  inference  that  such  jale  was  made  with  the  acquiescence 
and  consent  of  the  grantor  for  the  purpose  of  securing  a 
monopoly  in  himself.' 

§  963c.  Public  policy. — In  one  case,  the  condition  was 
not  held  to  be  void,  but  the  court  decided  that  the  fact  that 
the  grantor  or  his  agent,  with  the  grantor's  acquiescence 
was  engaged  in  the  sale  of  intoxicating  liquor  would  warrant 
the  grantee  in  assuming  that  the  condition  had  been  waived, 
upon  which  assumption  he  would  have  a  right  to  act,  until 
he  should  be  notified  to  the  contrary.  Until  the  giving  of 
such  a  notice  the  court  decided  that  no  forfeiture  would  re- 
sult from  the  breach  of  the  condition.^  But  in  -a  case 
in  California  it  was  decided  that  if  this  condition  is  insert- 
ed solely  for  the  purpose  of  reserving  to  the  grantee  a 
monopoly  of  the  business,  then  the  condition  itself  is  against 
public  policy.    Consequently,  under  this  view,  the  estate  would 

4  Chippewa  Lumber  Co.  v.  Trem-  Tremper,  75  Mich.  36,  4  L.R.A.  373, 

per,  75  Mich.  36,  4  L.R.A.  373,  13  13   Am.    St.    Rep.   420,   42    N.    W. 

Am.  St.  Rep.  420,  42  N.  W.  532.  532. 

6  Chippewa  Lumber  Co.  v.  Trem-  ^  Cheppcwa  Lumber  Co.  v.  Trem> 

per,  75  Mich.  36,  4  L.R.A.  373,  13  per,  75  Mich.  36,  4  L.R.A.  373,  13 

Am.  St.  Rep.  420,  42  N.  W.  532.  Am.  St.  Rep.  420,  42  N.  W.  532. 

•  Chippewa  Lumber  Co.  v.  Trem- 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS,  ETC. 


1789 


not  be  liabld^to  forfeiture  for  a  breach  of  the  condition.''  In 
the  case  just  cited  the  lower  court  found  that  the  conditions  im- 
posed by  the  grantor  were  made  for  the  purpose  of  giving 


'  Burden  v.  Grandi,  152  Cal.  379, 
14  L.R.A.(N.S.)  909.  The  opinion 
of  the  court  was  delivered  by  Mr. 
Justice  Lorigan,  who  said: 

"It  is  insisted  by  appellant  that  a 
condition  inserted  in  a  deed  that 
intoxicating  liquors  shall  not  be 
sold  on  the  conveyed  premises, 
and  providing  that  for  a  breach 
thereof  the  estate  granted  shall  be 
forfeited  is  entirely  lawful,  and 
that  there  is  nothing  in  the  other 
findings  made  by  the  court  in  this 
case — the  condition  and  the  breach 
being  found — which  warranted  the 
court  in  awarding  judgment  for 
the  defendants,  and  in  refusing  to 
sustain  the  forfeiture.  As  an  ab- 
stract proposition,  the  contention 
of  appellant  that  such  conditions 
are  lawful  and  enforceable  is  un- 
doubtedly correct.  The  books  are 
full  of  cases  in  which  restrictions 
as  to  the  use  of  property  have  been 
sustained.  It  has  been  uniformly 
held  that  conditions  inserted  in 
deeds  precluding  the  establishment 
of  various  occupations  or  indus- 
tries— as  for  instance  distilleries, 
machine-shops,  livery-stables,  and 
saloons,  or  places  where  intoxicat- 
ing liquors  might  be  obtained — in 
certain  specified  localities  intended 
for  and  desirable  as  places  of  resi- 
dence have  been  sustained,  the  in- 
tent and  purpose  of  the  restriction 
being,  as  to  the  industries,  to  free 
such  localities  from  offensive  sights, 
disturbing  noises,  or  noxious  vap- 
ors, and,  as  to  saloons,  in  aid  of 
the  social  and  moral  welfare  of  the 


community  by  preventing  intemper- 
ance, which  is  universally  recog- 
nized as  a  social  evil.  Under  this 
general  rule,  and  confining  ourselves 
now  to  the  condition  in  the  deed 
relative  to  the  sale  of  intoxicating 
liquors,  broken  by  the  defendant 
Grandi,  if  the  plaintiff  in  the  for- 
mation of  the  town  of  Point  Reyes 
Station,  and  in  pursuance  of  a 
scheme  to  prevent  intoxicating 
liquors  being  sold  within  its  lim- 
its, had  by  condition  in  all  deeds 
made  by  him  provided  against  it, 
and  for  forfeiture  of  the  land  con- 
veyed in  case  it  was  done,  no  con- 
tention could  arise  as  to  the  valid- 
ity of  such  condition  and  the  con- 
sequent forfeiture  of  the  property 
if  it  were  violated.  Or  if  the 
plaintiff,  under  a  general  scheme 
for  establishing  such  town,  had 
contemplated  and  intended  that  the 
sale  of  intoxicating  liquors  should 
be  confined  and  restricted  to  some 
given  locality  or  territory  within 
the  town,  and  restricted  it  to  such 
given  locality  by  imposing  condi- 
tions against  its  sale  elsewhere,  we 
are  not  prepared  to  say  that  such 
a  scheme  would  not  be  entirely 
proper,  and  conditions  in  deeds 
harmonizing  therewith  lawful  and 
enforceable.  But  nothing  of  this 
kind  appears  to  have  been  intended 
or  designed  by  the  plaintiff,  accord- 
ing to  the  findings.  Whatever  his 
views  may  have  been  on  the  ques- 
tion of  temperance,  or  the  restric- 
tion of  the  liquor  traffic,  he  neither 
intended  by  the  imposition  of  these 


1790 


THE  LAW    OF   DEEDS. 


[chap.    XXVI. 


him  a  monopoly  in  the  sale  of  intoxicating  liqilbr  upon  other 
property  which  he  owned  in  the  tract,  and  not  for  the  pur- 
pose of  promoting  temperance  and  that  not  only  was  this 
his  intent,  but  that,  as  a  matter  of  fact,  he  was  through  his 
agents  in  the  actual  enjoyment  of  a  monopoly.  The  Supreme 
court  observed  that  if  the  grantor  "under  a  general  scheme 
for  establishing  such  town,  had  contemplated  and  intended 
that  the  sale  of  intoxicating  liquors  should  be  confined  and 
restricted  to  some  given  locality  or  territory  within  the  town, 
and  restricted  it  to  such  given  locality  by  imposing  conditions 
against  its  sale  elsewhere,  we  are  not  prepared  to  say  that 
such  a  scheme  would  not  be  entirely  proper,  and  conditions  in 
deeds  harmonizing  therewith  lawful  and  enforceable."  ' 

§  964.  Conditions  precedent. — A  condition  precedent 
is  one  that  must  take  effect  before  the  estate  can  vest.  If 
a  condition  precedent  is  impossible  from  the  beginning,  or 


conditions  to  entirely  prohibit  the 
sale  of  such  liquor  within  the  town 
laid  out  by  him  nor  to  confine  its 
sale  within  any  given  district  or 
locality  for  the  benefit  of  the  com- 
munity or  its  individual  members. 
His  purpose  was,  so  the  court  finds, 
and  we  must  assume  it  has  so  found 
on  sufficient  evidence,  that  he  in- 
tended by  the  imposition  of  such 
conditions,  to  reserve  and  create 
solely  in  himself  a  monopoly  of  the 
sale  of  intoxicating  liquors  within 
the  town  of  Point  Reyes  Station. 
The  court  not  only  finds  that  this 
was  the  intent  of  the  plaintiff,  but 
that  in  effect,  he,  through  his  agents, 
was  in  the  actual  enjoyment  of  a 
monopoly  as  to  such  business.  It 
hardly  needs  any  citation  of  au- 
thority to  the  proposition  that  in 
tlie  scheme  of  establishing  a  town 
or  village,  all  forfeitures  inserted  in 


deeds  to  lots  therein  solely  for  the 
purpose  of  restricting  a  lawful  oc- 
cupation, in  order  that  the  grantor 
may  himself  enjoy  a  monopoly  in 
it,  are  against  public  policy  and 
void.  The  retail  liquor  business 
conducted  under  such  restrictions 
and  limitatioris  as  are  imposed  by 
law,  is  a  lawful  business  in  this 
state,  and  no  more  subject  to  mon- 
opoly by  restrictive  conditions  im- 
posed for  such  purpose,  as  the  low- 
er court  finds  they  were  here,  than 
restrictive  conditions  affecting  any 
other  lawful  business,  and  when 
the  intent  and  purpose  of  such  con- 
ditions is  to  effect  a  monopoly  of 
any  lawful  business  or  occupation 
in  the  person  imposing  them,  they 
are  void." 

8  Burdell  v.  Grandi,  152  Cal.  380, 
14  L.R.A.(N.S.)    909. 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS^  ETC.  1791 

for  any  reason  is  incapable  of  performance,  the  estate  will  not 
vest.®  A  condition  "that  this  deed  is  to  have  effect  and  be 
operative  only  upon  the  express  condition  and  understand- 
ing," that  certain  things  shall  first  be  done,  is  a  condition  pre- 
cedent.^ Where  a  father  executes  a  deed  of  gift  of  eight 
undivided  ninths  of  a  tract  of  land,  reserving  to  himself  one- 
ninth,  to  be  laid  out  on  the  portion  on  which  he  resided,  the 
actual  location  of  the  ninth  so  reserved  is  not  a  condition  pre- 
cedent to  the  operation  of  the  deed  as  to  the  undivided  por- 
tions conveyed  to  the  Children.^  Where  a  deed  of  a  block  of 
land  to  a  city,  to  be  kept  as  an  ornamental  square,  and  for 
the  erection  of  public  buildings,  contains  this  proviso :  "Pro- 
vided the  city,  by  its  legal  representatives,  obtains  authority 
from  the  legislature  of  this  State,  and  makes  the  necessary 
removals  of  the  dead  from  the  said  block  within  twelve 
months  from  the  first  day  of  January,  A.  D.,  1891,"  the  deed 
is  to  be  construed  as  made  upon  a  condition  precedent,  and 
if  the  city  fails  to  perform  the  condition,  no  title  vests  in  the 
city.' 

§  965.  Restraint  on  alienation. — A  condition  may  be 
imposed  in  a  deed  on  the  power  of  alienation  in  certain  cases, 
as  that  the  land  shall  not  be  conveyed  before  a  certain  date  or 
to  a  certain  person.*    But  an  absolute  restriction  on  the  power 

9  Harvey   v.   Aston,   1   Atk.   374;  i  Tennessee  &  Coosa  R.  R.   Co. 

Vanhorne's   Lessee  v.   Dorrance,  2  v.  East  Alabama  Ry.  Co.,  IZ  Ala. 

Dall.  317;  Mizell  V.  Burnett,  4  Jones  426.     Not  condition  precedent,  see 

(N.    C),   249,   69   Am.    Dec.    744;  Mackey  v.  Kerwin,  222  111.  371,  78 

Martin    v.    Ballon,    13    Barb.    119;  N.  E.  817. 

Taylor  v.  Mason,  9  Wheat.  325,  6  2  Salmon  v.  Wilson,  41  Cal.  595. 

L.  ed.  101.    And  see  Bertie  v.  Falk-  3  Stockton  v.  Weber,  98  Cal.  433. 

land.    Freem.    Ch.    220;    Scott    v.  See,    also,    Jones    v.    Bramblet,    2 

Tyler,  2  Bro.  C.  C.  431;  Dunlap  v.  111.    276;    Blean    v.    Messenger,    2>l 

Mobley,    71    Ala.    102.      Conditions  N.  J.  L.  499. 

precedent     must    be     strictly    per-  *  Attwater  v.  Attwater,  18  Beav. 

formed.     Helms  v.  Helms,   137  N.  330;    Hunt    v.    Wright,    47    N.    H. 

C.  206,  49  S.   E.   110;   Spies  v.   R.  396,   93    Am.    Dec.   451.     And    see 

Co.,  60  W.  Va.  389,  55  S.  C.  464.  McWilliaras   v,   Nisley,  2   Serg.  & 


1792 


THE  LAW  OF  DEEDS. 


[chap.    XXVII. 


of  alienation  or  a  condition  forbidding  the  marriage  of  the 
grantee  is  void.^  A  condition  in  a  deed  made  in  considera- 
tion of  love  and  afifection,  conveying  an  absolute  fee,  that  if 
the  land  is  not  disposed  of  during  the  grantee's  lifetime  it 
shall  revert  to  the  grantor,  is  repugnant  to  the  grant,  and 
void.^  A  condition  that  a  failure  to  pay  the  purchase  money 
shall  render  the  deed  void,  is  not  void  as  repugnant  to  the 
grants  A  condition  in  a  deed  conveying  a  life  estate,  with 
remainder  in  fee  to  the  grantee's  children,  or  in  case  of  his 
death,  to  others,  which  forbids  the  grantee  to  convey  his  in- 
terest, and  prohibits  the  sale  of  it  for  his  debts,  is  void."  In 
California,  the  rule  that  a  condition  in  restraint  ®f  alienation 
when  repugnant  to  the  interest  created  is  void  is  laid  down  in 


R.  513,  7  Am.  Dec.  654;  Stewart  v. 
Brady,  3  Bush,  623;  Shackleford 
V.  Hall,  19  III.  212;  Dougal  v.  Fryer, 
3  Mo.  40,  22  Am.  Dec.  458.  See, 
also.  Realty  Co.  v.  Graves  (Ky.)  113 
S.  W.  420;  Harkness  v.  Lisle,  132 
Ky.  767,  117  S.  W.  264. 

6  Murray  v.  Green,  64  Gal.  363 ; 
McCleary  v.  Ellis,  54  Iowa,  311,  ll 
Am.  Rep.  205 ;  Anglesea  v.  Church 
Wardens,  6  Q.  B.  114;  Blackstone 
Bank  V.  Davis,  21  Pick.  42,  32  Am, 
Dec.  241 ;  Taylor  v.  Sutton,  15  Ga. 
103,  60  Am.  Dec.  682;  Brandon  v. 
Robinson,  18  Ves.  429;  Hall  v. 
Tuffts,  18  Pick.  455 ;  De  Peyster  v. 
Michael,  6  N.  Y.  467,  57  Am.  Dec. 
470;  Williams  v.  Cowden,  13  Mo. 
211,  53  Am.  Dec.  143;  Walker  v. 
Vincent,  19  Pa.  St.  369;  Scher- 
merhorn  v.  Negus,  1  Denio,  448; 
Willis  V.  Hiscox,  4  Mylne  &  C. 
197;  Munroe  v.  Hall,  97  N.  C.  206; 
Dick  V.  Pitchford,  1  Dev.  &  B.  Eq. 
480;  Pritchard  v.  Bailey,  113  N. 
C.  521,  18  S.  E.  Rep.  668;  Hardy 
V.  Galloway,  111  N.  C.  519,  32  Am. 
St  Rep.  828.   IS  S.  E.   Rep.  890; 


Yard's  Appeal,  64  Pa.  St.  95 ;  Reif- 
snyder  v.  Hunter,  19  Pa.  St.  41; 
Doebler's  Appeal,  64  Pa.  St.  9; 
Oxley  V.  Lane,  35  N.  Y.  340;  Smith 
V.  Clark,  10  Md.  186;  Norfis  v. 
Hensley,  27  Cal.  439;  Lawrence  v. 
Singleton,  (Tenn.  Oct.  23,  1895), 
17  S.  W.  Rep.  265;  McCleary  v. 
Ellis,  54  Iowa,  311,  37  Am.  Dec. 
205 ;  Mandelbaum  v.  McDonnell,  29 
Mich.  78,  18  Am.  Rep.  61;  Hawley 
V.  Northampton,  8  Mass.  3,  5  Am. 
Dec  66;  Gleason  v.  Fayerweather, 
4  Gray,  348.  See  Sprague  v.  Ed- 
wards, 48  Cal.  239.  Walker  v. 
Shepard,  210  111.  100,  71  N.  E. 
422;  Harkness  v.  Lisle,  (Ky.)  117 
S.  W.  264. 

6  Case  V.  Dewire,  60  Iowa,  442. 

7  Taylor  v.  Sutton,  15  Ga.  103, 
60  Am.  Dec.  682. 

8  McCleary  v.  Ellis,  54  Iowa,  311, 
37  Am.  Rep.  205.  A  deed  contained 
this  clause :  "The  said  J.  B.  Gallo- 
way and  wife,  Alice  L.  Galloway, 
retaining  for  themselves  and  their 
heirs  and  assigns  the  right  to  re- 
purchase said  land  when  sold,  the 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS^  ETC.  1793 

the  Civil  Code.®  Where  a  restraint  against  alienation  is  void 
as  against  public  policy  the  grantee  may  convey  an  absolute 
title,  and  his  grantee  is  not  estopped  by  any  act  or  declara- 
tion made  by  him  to  allege  its  invalidity.^  Where  land  is 
purchased  by  a  son  and  conveyed  to  his  mother  as  a  gift,  a 
contract  made  subsequently,  which  recites  that  the  land  was 
acquired  by  her  by  money  supplied  by  the  son  as  a  gift  and 
which  contains  a  covenant  that  no  part  of  such  land  "shall 
be  sold  or  conveyed  without  the  consent"  of  the  son  and 
which,  also,  provides  that  he  was  to  be  known  and  consid- 
ered as  the  manager  and  superintendent  of  the  land  conveyed 
for  the  benefit  of  the  mother  to  whom  all  the  income  was  to 
be  paid,  and  that  in  case  of  her  death  the  property  should 
be  divided  among  her  lawful  heirs  who  were  named,  is  void, 
because  it  places  a  restraint  upon  alienation  repugnant  to  the 
interest  conveyed  by  the  deed.  A  daughter  to  whom  the 
mother  without  the  son's  consent  conveyed  the  property  in 
consideration  of  love  and  affection  excluding  the  son,  will 
take  the  entire  title.^  The  rule  invalidating  repugnant  condi- 
tions in  restraint  of  alienation  does  not  apply  where  it  ap- 
pears from  a  fair  consideration  of  all  the  parts  of  a  deed  and 

said  Jefferson   Evans   conveying  a  Pick.   42,   32   Am.    Dec.   241 ;    Me- 

title  for  said  land  either  by  deed  bane  v.   Mebane,  4   Ircd.   Eq.    131, 

or  mortgage  to  any  person  without  44  Am.  Dec.  102. 
first    giving    J.    B.    Galloway    and  ^  Civil  Code  Cal.  §  711. 

wife   and   their    heirs    and   assigns  ^  Prey  v.  Stanley,  110  Cal.  423. 

the   privilege    of    repurchasing   the  8  Prgy  y.    Stanley,    110   Cal.   423, 

same,   renders   this    deed   null   and  42   Pac.  908.     See  as   restraint   on 

void,   otherwise  to   remain   in    full  alienation:    Teaney    v.    Mains,    113 

force."    This  provision  was  held  to  Iowa,   53,  84  N.   W.  953 ;   Latimer 

be  void  because  it  was  uncertain  as  v.  Waddell,  119  N.  C.  370,  3  L.R.A. 

to  time  and  manner  of  performance,  (N.   S.)   668,  26  S.  E.   122;  Lewis 

was   repugnant    to   the   grant,    and  v.    Lewis,    16    Conn.    586,    57    Atl 

was   a   restraint    on  the   power   of  735 ;    Bennett  v.   Chapin,   11   Mich, 

alienation:    Hardy  v.  Galloway,  111  526,  7  L.R.A.  ZlT ,  43   N.  W.  893; 

N.  C.  519,  32  Am.  St.  Rep.  828.   See,  Simonton  v.  White,  93  Tex.  50,  SZ 

also,  Tillinghast  v.  Bradford,  5  R.  I.  S.  VV.  339,  11  Am.  SL  Rep.  824. 
205;  Blackstone  Bank  v.  Davis,  21 
Deeds,  Vol.  IL— 113 


1794  THE  LAW    OF  DEEDS.  [CHAP.    XXVII. 

of  contemporaneous  instruments  forming  parts  of  the  same 
transaction,  that  it  was  the  intention  by  other  expressions 
contained  in  the  deed  to  quaHfy  and  limit  the  meaning  and 
effect  of  the  words  of  grant,  unless  the  conditions  are  re- 
ferable to  the  limited  estate  actually  conveyed  by  the  deed. 
"In  such  cases"  says  Mr.  Justice  Shaw,  "the  other  provisions 
of  the  deed  operate  on  and  affect  its  true  meaning,  the  grant- 
ing clause  is  to  be  taken  in  the  limited  sense  which  the  entire 
instrument  shows  it  was  intended  to  have,  and,  the  limitations 
and  conditions  relating  to  the  fee  are  not  to  be  considered  as 
repugnant  to  the  grant,  but  as  descriptive  of  the  estate  con- 
veyed, and  in  harmony  with  the  grant  when  truly  interpreted." 
He  continued  to  say  that  "conditions  which  would  be 
void  as  restrictions  upon  the  alienation  of  a  fee  conveyed  by 
the  deed,  may  contain  expressions,  which  show  that  no  such 
fee  is  granted,  and  in  construing  a  deed,  such  language  must 
be  given  due  weight.  Where  the  intent  to  be  gathered  from 
the  deed  as  a  whole,  including  the  otherwise  void  conditions, 
is  that  a  lesser  estate  was  to  be  conveyed,  then  such  intention 
must  prevail,  and  as  the  effect  will  be  that  no  fee  is  conveyed 
by  the  deed,  there  will  be  nothing  upon  which  the  restrictions 
upon  the  alienation  of  the  fee  can  operate."  ' 

§  966.  Restraint  upon  partition  by  tenants  in  common. 
—Whether  a  restraint  upon  the  right  of  partition  by 
tenants  in  common  is  a  restraint  upon  the  power  of  alien- 
ation or  not  depends,  in  a  great  measure,  upon  the  character 
of  the  property  and  the  purposes  for  which  it  has  been  pur- 
chased. As  an  abstract  proposition  the  right  to  partition  is 
an  inseparable  incident  to  ownership,  and,  in  many  cases,  it 
has  been  asserted  that  every  estate  in  common  is  subject  to 
partition.  This  was  said  in  a  case  in  Massachusetts  where 
there  was  no  agreement  that  partition  should  not  be  had,  but 
where  the  right  to  partition  was  resisted  on  the  ground  of 

'Burnett  v.  Piercy,  149  Cal.  178,      86  Pac.  603. 


CHAP.    XXVII,]    CONDITIONS,  LIMITATIONS,  ETC.  1795 

prescription.^  But  where  the  use  of  the  property  as  a  whole 
is  essential  for  the  benefit  of  all,  and  it  has  been  acquired  for 
a  definite  purpose,  under  an  agreement  that  it  shall  not  be 
divided  by  partition,  the  agreement  is  not  subject  to  the  objec- 
tion that  it  is  a  restraint  upon  alienation,  as  each  tenant  may 
convey  his  undivided  interest.  Hence,  if  land  purchased  for 
the  site  of  a  hotel  to  be  erected  by  an  association  is  conveyed 
to  the  members  forming  the  association  upon  condition  that 
each  member  and  his  heirs  and  assigns  shall  hold  the  same  in 
common  without  partition  or  division,  subject  to  the  articles 
of  the  association,  such  a  condition  is  not  repugnant  to  the 
estate  granted,  or  void  upon  grounds  of  public  policy.  Each 
of  the  grantees  is,  as  against  the  others,  estopped  to  demand 
partition.*  But  a  covenant  by  tenants  in  common  that  a  cer- 
tain part  of  their  land  shall  be  occupied  in  common  as  a  yard, 
by  them  and  their  heirs  and  assigns  forever,  does  not  prevent 
partition  of  such  lot.  The  right  of  occupation  will  remain 
after  partition  as  it  existed  previously.®  And  so  if  a  deed 
conveying  an  undivided  interest  in  land  contains  a  stipulation 
that  the  parties,  their  heirs  and  assigns,  shall  never  commence 
proceedings  for  the  partition  of  a  certain  designated  part  of 
the  land,  the  stipulation  is  void  because  it  is  an  unreasonable 
restraint  of  the  use  and  enjoyment  of  the  property."' 

4  Mitchell  V.   Starbuck,   10  Mass.  mon  law,  and  especially  to  the  jur- 

11.  isprudence  of  today,  which,  in  the 

*  Hunt  V.  Wright,  47  N.  H.  396,  United  States  at  least,  has  almost 

93  Am.  Dec.  451 ;  Spalding  v.  Wood-  wholly  lost  the  spirit  and  genius  of 

ward,  53   N.   H.  573,    16  Am.   Rep.  the  feudal  system  and  feudal  ten- 

392;  Avery  v.  Payne,  12  Mich  549.  ures :  9  Am.  Law  Reg,,  N.  S.  393, 

6  Fisher  v.  Dewerson,  3  Met.  544.  457.    Primogeniture  and  estates  tail. 

And  see  Savage  v.  Mason,  3  Cush.  with    all    their    incidents,    find    but 

500.  little    favor    in    the    laws    of    this 

'  Haeussler  v.  Missouri  Iron  Co.,  century.     The  right  of  partition  is 

110  Mo.  188,  16  L.R.A.  220,  33  Am.  an   absolute   right   which   yields  to 

St.  Rep.  431.     Said  Thomas,  J.,  for  no  consideration  of  hardship  or  in- 

the  court:    "Restraints  and  fetters  convenience:    Freeman    on    Coten- 

upon  the  alienation  and  enjoyment  ancy  and  Partition,  sec.  443     Any- 

of  property  are  opposed  to  the  com-  thing    that    militates    against    this 


1796 


THE  LAW  OF  DEEDS. 


[chap.    XXVII. 


§  967.  Condition  against  putting  in  windows. — A  con- 
dition in  a  deed  of  a  house  that  there  shall  be  no  windows  in 
it,  would,  probably,  be  considered  a  restriction  inconsistent 
with  the  estate  granted,  and  hence,  void.  But  a  condition  that 
no  window  shall  be  placed  on  a  certain  side  would  be  valid. 
A  clause  in  a  deed,  "provided,  however,  this  conveyance  is 
upon  the  condition  that  no  windows  shall  be  placed  in  the 
north  wall  of  the  house  aforesaid,  or  of  any  house  to  be 
erected  on  the  premises  within  thirty  years  from  the  date 
hereof,"  was  construed  to  be  a  condition,  and  not  a  covenant, 
giving  the  grantor  a  right  to  re-enter  upon  a  breach.' 

§  968.  Use  of  buildings  for  certain  purposes. — Where 
the  owner  of  a  block  of  land  divided  it  into  lots,  and  sold 
the  lots  from  time  to  time  to  different  persons,  and  the  deeds 
contained  mutual  covenants  against  the  erection  of  buildings 
for  certain  trades,  the  covenants  in  the  various  deeds  are  for 
the  mutual  benefit  and  protection  of  all  the  purchasers  of  lots 
in  the  block.'  Persons  who  are  not  parties  to  a  deed  contain- 
ing a  covenant  providing  against  certain  constructions  which 
may  be  offensive  to  neighboring  inhabitants,  are,  if  they  have 
suffered  from  a  breach  of  it,  entitled  to  relief  in  equity.^    An 


right  is  repugnant  to  the  essential 
characteristics  of  cotenancy:  Mit- 
chell V.  Starbuck,  10  Mass.  11;  and 
the  tendency  of  our  times  is  to 
greater  freedom  of  sale  and  trans- 
fer of  property,  unfettered  by  con- 
ditions or  limitations  of  the  right  of 
alienation." 

8  Gray  v.  Blanchard,  8  Pick.  283. 
And  see,  Chapin  v.  School  District, 
35  N.  H.  445 ;  Wood  v.  County  of 
Cheshire,  32  N.  H.  421;  Gillis  v. 
Bailey,  21  N.  H.  150;  s.  c.  17  N. 
H.  18;  Parsons  v.  Miller,  15  Wend. 
564;  Stuyvesant  v.  Mayor  etc.  of 
New  York,   11   Paige,  414;  CoUins 


V.  Marcey,  25  Conn.  242 ;  Savage  v. 
Mason,  3  Cush.  500;  Hooper  v. 
Cummings,  45  Me.  359. 

9  Barrow  v.  Richard,  8  Paige,  351, 
35  Am.  Dec.  713. 

1  Gilbert  v.  Peteler,  3  N  .Y.  165. 
See  Linzee  v.  Mixer,  101  Mass.  512; 
Clark  V.  The  Inhabitants  of  th« 
Town  of  Brookfield,  81  Mo.  503; 
51  Am.  Rep.  243.  If  a  person  has 
agreed  not  to  build  flats  in  a  neigh- 
borhood, and  subsequently  purchas- 
es land  there,  it  becomes  in  his 
hands  restricted  and  limited  in  its 
uses  by  that  agreement,  and  con- 
tinues subject  to  the  restriction  in 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS,  ETC.  1797 

fiabendum  in  a  deed,  "to  have  and  to  hold  for  the  use  of  said 
rehgious  Society  of  Friends  so  long  as  it  may  be  needed  for 
meeting  purposes,  then  said  premises  to  fall  back  to  the  orig- 
inal tract,"  is  not  broken  by  a  transfer  of  the  church  property 
to  neighboring  land,  where  use  was  still  to  be  made  of  the 
premises  for  meetings.^  Where  a  county  erects  a  courthouse 
and  jail  on  land  conveyed  to  it  for  county  purposes,  and 
afterward  the  county  site  is  removed  to  another  place,  the  title 
of  the  county  is  not  divested  by  such  removal.  The  removal 
is  not  evidence  of  the  county's  intention  to  abandon  the  prop- 
erty or  to  use  it  for  purposes  not  for  the  use  of  the  county.* 
In  a  deed  containing  the  condition,  "no  buildings  which  may 
be  erected  on  said  lot  shall  be  less  than  three  stories  in  height, 
exclusive  of  the  basement  and  attic,  nor  have  exterior  walls  of 
any  other  material  than  brick,  stone,  or  iron,  nor  be  used  or 
occupied  for  any  other  purpose,  or  in  any  other  way  than  as 
a  dwelling-house,  for  the  term  of  twenty  years,"  from  a  day 
named  in  the  deed,  the  limitation  of  time  is  considered  as 
applying  only  to  the  character  of  occupation,  and  not  to  the 
other  conditions.* 

the  hands  of  a  purchaser  from  him  the  owner  of   forty  acres  of   land 

with  notice:    Louis  v.  GoUner,  129  was    engaged    m    the    busmess    of 

N    Y   227,  26  Am.  St.  Rep.  516.  selling    sand    therefrom,     and    he 

2  Carter' V.   Branson,  79  Ind.   14.  sold    a    half    acre    to    a    grantee 

aPoitevent   v.    Hancock    County  under     an     agreement     that     the 

Supervisors,  58  Miss.  810.  latter    should    not    sell    any    sand 

4  Keening  v.    Ayling,    126   Mass.  off  the  premises.    The  ongmal  con- 

404     See  as  to  the  construction  of  tract  of   sale  contained   an   agree- 

a  condition  that  the  premises  should  ment  to  this   effect,   and  the   deed 

be   used    for   the    manufacture   of  contamed    this    covenant:        Said 

cars,   Ellis  v.   Elkhart  etc.   Co.,  97  P^rty    of    the    second    part    hereby 

Ind.  247.     The  question  of  the  ex-  ag^fi^e^  "°t  to  sell   any  sand   off 

,  .  ,  i   it,  *  said  premises.       The  grantee  con- 

tent   to   which    an   agreement   that  ^^^^^    ^^    ^^^^^^^_^    ^^^^^    ^^^^.^^_ 

the    grantee    will    use.    or    abstain  ^^^^^-^^    j^j^    knowledge    of    the 

from  using,  the  granted  premises  in  ggj-gg^e^t,    opened    a    bed    on    the 

a  specified  manner  is  valid  was  ex-  pj-gmises    and    commenced    to    sell 

haustively    considered    in    the    case  g^^d  therefrom.    The  original  gran- 

of  Hodge  v.  Sloan,  107  N.  Y.  244,  tor  brought   an   action   to   restrain 

1  Am.  St.  Rep.  816.     In  that  case,  the  sale  of  sand,  and  the  court,  in 


1798 


THE  LAW  OF  DEEDS. 


[chap.    XXVII. 


§  968a.  Enforcing  personal  contract  of  grantor  against 
grantee  with  notice. — Although  an  agreement  made  by 
the  owner  of  land  restricting  its  use,  may  not  be  a  covenant 


considering  the  effect  of  this 
stipulation,  per  Mr.  Justice  Dan- 
forth,  said:  "Parties  competent  to 
contract  have  contracted,  the  one 
to  sell  a  portion  of  his  land,  but 
only  upon  such  conditions  as  will 
protect  himself  in  the  prosecution 
of  business  carried  on  upon  the 
residue,  the  other  agreeing  to  buy 
for  a  consideration  affected  by  that 
condition,  and  enabled  to  do  so 
only  by  acceding  to  it,  and  he  there- 
fore binds  himself  by  contract  to 
limit  the  use  of  land  purchased  in 
a  particular  manner.  There  seems 
no  reason  why  he  and  his  grantee, 
taking  title  with  notice  of  the  re- 
striction, should  not  be  equally 
bound.  The  contract  was  good  be- 
tween the  original  parties,  and  it 
should  in  equity,  at  least,  bind  who- 
ever takes  title  with  notice  of  such 
covenant.  By  reason  of  it  the 
vendor  received  less  for  his  land, 
and  the  plain  and  expressed  inten- 
tion of  the  parties  would  be  de- 
feated if  the  covenant  could  not  be 
enforced  as  well  against  a  pur- 
chaser with  notice  as  against  the 
original  covenantor.  In  order  to 
uphold  the  liability  of  the  successor 
in  title,  it  is  not  necessary  that  the 
covenant  should  be  one  technically 
attaching  to  and  concerning  the 
land,  and  so  running  with  the  title. 
It  is  enough  that  a  purchaser  has 
notice  of  it;  the  question  in  equity 
being,  as  is  said  in  Tulk  v.  Mox- 
hay,  11  Beav.  571,  2  Phill.  Ch.  774, 
not  whether  the  covenant  ran  with 
the  land,  but  whether  a  party  shall 


be  permitted  to  use  the  land  in- 
consistently with  the  contract  en- 
tered into  by  his  vendor,  and  with 
notice  of  which  he  purchased.  This 
principle  was  applied  in  Tallmadge 
V,  East  River  Bank,  26  N.  Y.  105, 
where  the  equity  in  regard  to  the 
manner  of  improvement  and  occu- 
pation of  certain  land  grew  out 
of  a  parol  contract  made  by  the 
owner  with  the  purchaser,  and  was 
held  binding  upon  a  subsequent 
purchaser  with  notice,  although  his 
legal  title  was  absolute  and  un- 
restricted. In  Trustees  v.  Lynch, 
70  N.  Y.  446,  26  Am.  Rep.  615,  the 
action  was  brought  to  restrain  the 
carrying  on  of  business  on  certain 
premises  in  the  city  of  New  York, 
of  which  the  defendant  was  the 
owner,  upon  the  ground  that  the 
premises  were  subject  to  a  cove- 
nant reserving  the  property  exclu- 
sively for  dwelling-houses.  The 
court  below  held,  among  other 
things,  that  the  covenant  did  not 
run  with  the  land,  and  that  the  re- 
striction against  carrying  on  any 
business  on  the  premises  was  liable 
to  conflict  with  the  public  welfare, 
and  judgment  was  given  for  the 
defendant.  Upon  appeal  it  was  re- 
versed, and  the  covenant  held  to  be 
binding  upon  a  subsequent  grantee 
with  notice  as  well  as  upon  the 
original  covenantor.  So  the  re- 
straint may  be  against  the  use  of 
the  premises  for  one  or  another 
particular  purpose,  as  that  no  build- 
ing thereon  'shall  be  used  for  the 
sale  of  ale,  beer,  spirits,'  etc.,  'or 


(JHAP.    XXVII.]    CONDITIONS,  LIMITATIONS^  ETC. 


1799 


running  with  the  land,  or  a  legal  exception  or  reservation, 
still,  it  may  be  enforced  in  equity  by  injunction  against  a 
grantee  who  did  not  purchase  innocently  and  in  good  faith. 


as  an  inn,  publichouse,  or  beer- 
house' :  Carter  v.  Williams  L.  R.  9 
Eq.  Cas.  678.  And  it  is  said  la  man 
may  covenant  not  to  erect  a  mill 
on  his  own  lands :  Mitchell  v.  Rey- 
nolds, 1  P.  Wms.  181.  Many  other 
instances  of  restraint  might  be  re- 
ferred to,  and  where  it  is  of  such 
a  nature  as  concerns  the  mode  of 
occupying  or  dealing  with  the  prop- 
erty purchased  in  the  way  of  busi- 
ness operations,  or  even  the  omis- 
sion of  all  business  or  certain  kinds 
of  business,  or  the  erection  or  non- 
erection  of  buildings  upon  the  prop- 
erty, we  see  no  reason  to  doubt  the 
validity  of  an  agreement  fair  and 
valid  in  other  respects,  which  se- 
cures that  restraint.  Indeed,  it 
seems  well  settled  by  authority  that 
a  personal  obligation  so  insisted 
upon  by  a  grantor  and  assumed  by 
a  grantee,  which  is  a  restriction  as 
to  the  use  of  the  land,  may  be  en- 
forced in  equity  against  the  grantee 
and  subsequent  purchasers  with 
notice :  Parker  v.  Nightingale.  6 
Allen,  341,  344,  83  Am.  Dec.  632; 
Burbank  v.  Phillsbury,  48  N.  H. 
475 ;  nor  is  it  essential  that  the  as- 
signees of  the  covenantor  should  be 
named  or  referred  to:  Morland  v. 
Cook,  L.  R.  6  Eq.  Cas.  252.  In 
Tulk  V.  Moxhay,  1  Hall  &  T.  105, 
it  was  said  that  the  jurisdiction  of 
the  court  in  such  cases  is  not  fet- 
tered by  the  question  whether  the 
covenant  does  or  does  not  run  with 
the  land.  In  that  case  the  purchas- 
er of  land,  which  was  conveyed  to 
him  in  fee  simple,  covenanted  with 


the  vendor  that  the  land  should  be 
used  and  kept  in  ornamental  re- 
pair as  a  pleasure  garden,  and  it 
was  held  that  the  vendor  was  en- 
titled to  an  injunction  against  the 
assignees  of  the  purchaser  to  re- 
strain them  from  building  upon  the 
land.  Upon  the  appeal,  the  chan- 
cellor, Cottenham,  said :  'I  have  no 
doubt  whatever  upon  the  subject; 
in  short,  I  cannot  have  a  doubt  up- 
on it,  without  impeaching  what  I 
have  considered  as  the  settled  rule 
of  this  court  ever  since  I  have 
known  it.  Where  the  owner  of  a 
piece  of  land  enters  into  contract 
with  his  neighbor,  founded,  of 
course,  upon  a  valuable  or  other 
good  consideration,  that  he  will 
either  use  or  abstain  from  using  his 
land  in  such  a  manner  as  the  other 
party  by  the  contract  particularly 
specifies,  it  appears  to  me  the  very 
foundation  of  the  whole  of  his  jur- 
isdiction to  maintain  that  this  court 
has  authority  to  enforce  such  a 
contract.  It  has  never,  that  I  know 
of,  been  disputed.'  The  question 
before  the  court  was  stated  to  be 
whether  a  party  taking  property 
with  a  stipulation  to  use  it  in  a 
particular  manner  will  be  permit- 
ted by  the  court  to  use  it  in  a  way 
diametrically  opposite  to  that  which 
the  party  has  stipulated  for.  'Of 
course, — he  says — 'of  course  the 
party  purchasing  the  property  which 
is  under  such  restriction  gives  less 
for  it  than  he  would  have  given  if 
he  had  bought  it  unencumbered. 
Can  there,  then,  be  anything  much 


1800 


THE  LAW  OF  DEEDS. 


[chap.    XXVII. 


Thus,  a  builder  of  flats  and  tenement  houses  contracted  for  the 
purchase  of  a  lot  with  the  object  of  building  thereon  a  tene- 
ment house.  The  street  was  occupied  by  private  residences, 
and  their  owners  deeming  the  contemplated  structure  would 
be  an  injury  to  them,  and  failing  to  induce  the  builder  not  to 
erect  such  a  building,  purchased  and  took  an  assignment  of 
the  contract  at  a  considerable  advance  over  the  price  originally 
agreed.  They  did  this  for  the  sole  and  declared  purpose  of 
preventing  the  erection  of  flats  in  the  neighborhood,  and  they 
purchased  the  contract  upon  the  oral  agreement  of  the  builder, 
that  he  would  not  construct  any  flats  in  that  immediate  neigh- 
borhood.   The  builder,  however,  soon  bought  other  premises 


more  inequitable  or  contrary  to 
good  conscience  than  that  a  party 
who  takes  property  at  a  less  price 
because  it  is  subject  to  a  restric- 
tion should  receive  the  full  value 
from  a  third  party,  and  that  such 
third  party  should  then  hold  it 
unfettered  by  the  restriction  under 
which  it  viras  granted?  That  v^rould 
be  most  inequitable,  most  unjust, 
and  most  unconscientious ;  and,  as 
far  as  I  am  informed,  this  court 
never  would  sanction  any  such 
course  of  proceeding.'  And  in  lan- 
guage very  applicable  to  the  case  be- 
fore us  he  adds:  'Without  ad- 
verting to  any  question  about 
a  covenant  running  with  land 
or  not,  I  consider  that  this 
piece  of  land  is  purchased  sub- 
ject to  an  equity  created  by  a  party 
competent  to  create  it;  that  the 
present  defendant  took  it  with  dis- 
tinct knowledge  of  such  equity  ex- 
isting; and  that  such  equity  ought 
to  be  enforced  against  him,  as  it 
would  have  been  against  the  party 
who  originally  took  the  land  from 
Mr.  Tulk.'    This  case  is  cited  and 


followed  as  to  restrictive  coven- 
ants in  many  cases :  Brown  v. 
Great  East.  Ry.  Co.,  L.  R.  2  Q.  B. 
D.  406;  London  etc.  Ry  Co.  v. 
Gomm,  L.  R.  20  Ch.  Div.  562,  576. 
Each  case  will  depend  upon  its 
own  circumstances,  and  the  juris- 
diction of  a  court  of  equity  be  ex- 
ercised for  their  enforcement  or 
refused,  according  to  its  discretion : 
Trustees  v.  Thacher,  87  N.  Y.  311, 
41  Am.  Rep.  365;  but  where  the 
agreement  is  a  just  and  honest 
one,  its  judgment  should  not  be  in 
favor  of  the  wrongdoer.  Such 
seems  to  us  the  character  of  the 
covenant  in  question;  it  is  restric- 
tive, not  collateral  to  the  land  but 
relates  to  its  use,  and  upon  the 
facts  found  the  plaintiff  is  entitled 
to  the  equitable  relief  demanded." 
The  court  in  the  case  cited  (Hodge 
v.  Sloan)  distinguish  the  case  from 
Brewer  v.  Marshall,  19  N.  J.  Eq. 
537,  97  Am.  Dec.  679,  where  the 
court  held  that  the  facts  did  not 
justify  the  interference  of  a  court 
of  equity. 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS,  ETC.  1801 

in  the  neighborhood  and  commenced  the  erection  of  a  flat,  but 
when  suit  was  threatened  he  conveyed  the  property  to  his  wife 
in  exchange  for  other  property  worth  considerably  less,  and 
as  her  agent  and  architect  continued  the  work.  The  wife 
knew  all  the  facts,  and  took  the  title  in  her  name  for  the  pur- 
pose of  assisting  her  husband  to  avoid  his  contract.  The 
court  held  that  the  builder  might  be  enjoined  from  continuing 
the  proposed  construction,  or  using  any  structure  on  the  land 
as  a  flat.*  Where  parties  purchase  land  with  notice  of  a  cove- 
nant relating  to  it,  but  not  running  with  the  land,  they  will 
not  be  permitted  in  equity  to  perform  any  act  contrary  to  the 
true  meaning  of  that  covenant.^  An  owner  possesses  an  ease- 
ment where  it  is  agreed  by  owners  fronting  upon  a  square  of 
land  in  a  city,  that  certain  places  laid  out  upon  a  map  shall 
remain  open  as  appurtenant  to  several  lots,  and  if  the  city  in 
the  exercise  of  the  right  of  eminent  domain  takes  such  a  lot 
it  must  compensate  the  owner  of  another  lot  entitled  to  such 
easement  for  its  loss."^ 

§  968b.  Technical  accuracy  not  necessary. — Many 
agreements  as  to  what  the  grantee  may  or  may  not  do  with 
the  property  conveyed  to  him  are  not  in  the  strict  sense  cove- 
nants running  with  the  land,  but  as  they  are  valid  in  their 
nature,  they  are  capable  of  enforcement  in  equity  against 
those  acquiring  an  interest  in  the  property  with  notice  of 
them.  A  purchaser,  under  such  circumstances,  is  obligated  to 
do  that  which  his  grantor  agreed  to  do.    Notwithstanding  the 

5  Lewis  V.  Gollner,  129  N.  Y.  228,  '  Ladd   v.    City    of    Boston,    151 

26  Am.  St.  Rep.  516.  Mass.  585,  21  Am.  St.  Rep.  481.    In 

6Tulk  V.  Moxhay,  2  Phill.  Ch.  the  latter  volume  there  is  an  ex- 
774;  Patching  v.  Dubbins,  Kay,  1.  tended  note  upon  covenants  restrict- 
To  the  same  effect,  see  Brown  v.  ing  the  use  of  land,  to  which  the 
Huber,  80  Ohio  St.  183,  28  L.R.A.  reader  is  referred  for  a  more  ela- 
(N.S.)  705,  88  N.  E.  322;  Ashland  borate  discussion  of  the  subject. 
V.  Greiner,  58  Ohio  St.  67,  50  N.  E. 
99. 


1802  THE  LAW  OF  DEEDS.  [CHAP.    XXVII. 

covenant  may  be  purely  personal  in  its  nature,  subsequent 
grantees  and  successors  in  interest  will  be  bound  by  it,  unless 
they  claim  as  bona  fide  purchasers  without  notice  to  have  a 
superior  equity.^  And  even  if  such  agreements,  affecting 
the  manner  in  which  real  property  shall  be  occupied  or  used, 
are  not  expressed  in  terms  of  technical  accuracy  still  courts  of 
equity  will  enforce  them.^  A  grantee  with  notice  is  bound  by 
a  covenant  not  to  sell  sand  from  the  land.^  Subsequent 
grantees  may  be  charged  with  notice  of  such  a  covenant  in  a 
deed  because  it  is  in  their  line  of  title.*  Although  a  clause  in 
a  deed  providing  for  the  keeping  open  of  a  passageway  be- 
tween two  houses,  may  not  operate  as  a  reservation  for  want 
of  the  word  "heirs,"  still  it  is  enforceable  against  grantees 
with  notice  as  a  contract  which  equity  will  specifically  en- 
force.' To  absolve  the  grantee,  having  notice  from  the  cove- 
nant would  be  inequitable  and  unconscientious  as  such  grantee 
takes  his  title  subject  to  all  equities  of  which  he  has  notice.* 
If  the  right  of  way  of  a  railroad  company  may  be  used  by 
another  railroad  company  upon  such  reasonable  terms  and 
such  compensation  as  may  be  mutually  agreed  upon,  a  court 
of  equity,  if  they  fail  to  agree,  may  settle  the  amount  of  com- 
pensation to  be  paid.®  If  a  deed  contains  no  reservation  or 
exception  and  does  not  limit  the  estate  conveyed,  it  conveys 
all  minerals  under  the  surface  as  well  as  upon  it.®  Under  a 
covenant,  to  convey  the  mineral  in  the  part  of  a  tract  of  land, 
together  with  all  necessary  mining  rights,  a  conveyance  is 
included  of  such  easements  in  the  rest  of  the  land  as  may  be 

8  Whitney   v.   Union   R.    Co.,    11  Bank,  190  Mass.  20,  3  L.R.A.(N.S.) 
Gray  359,  71  Am.  Dec.  715.  98,  76  N.  E.  449. 

9  Parker  v.  Nightingale,  6  Allen,  *  Columbia  College  v.  Lynch,  70 
341,  83  Am.  Dec.  632.  N.  Y.  440,  26  Am.  Rep.  615. 

1  Hodge  V.  Sloan,  107  N.  Y.  244,  6  Joy  v.  City  of  St.  Louis,  138  U. 
1  Am.  St.  816,  17  N.  E.  335.                S.  1,  34  L.  ed.  843,  11  Sup.  Ct.  R. 

2  Middleton  v.  Newport  Hospital,       243. 

16  R.  I.  319,  1  L.R.A.  191,  15  Atl.  6  Richards  v.  Potter,  136  Ky.  579, 

800.  124  S.  W.  850. 

3  Bailey    v.     Agawara     National 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS,  ETC.  1803 

found  necessai-y  to  enable  the  mining  and  removal  of  the 
material  to  be  accomplished.' 

§  969.     Who  may  take  advantage  of  breach. — No  one 

can  take  advantage  of  a  breach  of  a  condition  subsequent  but 
the  grantor  or  his  heirs.  If  they  do  not  take  steps  to  enforce 
a  forfeiture  of  the  estate  on  the  ground  of  a  breach  of  the 
condition,  the  title  remains  unimpaired  in  the  grantee.  This 
rule  also  prevails  where  a  condition  is  inserted  in  a  patent 
or  grant  made  by  the  government."  "In  what  manner  the 
reserved  right  of  the  grantor  for  breach  of  the  condition  must 
be  asserted  so  as  to  restore  the  estate  depends  upon  the  char- 
acter of  the  grant.  If  it  be  a  private  grant,  that  right  must 
be  asserted  by  entry  or  its  equivalent.  If  a  grant  be  a  public 
one,  it  must  be  asserted  by  judicial  proceedings  authorized  by 
law,  the  equivalent  of  an  inquest  of  office  at  common  law, 
finding  the  fact  of  forfeiture,  and  adjudging  the  restoration 
of  the  estate  on  that  ground,  or  there  must  be  some  legisla- 
tive assertion  of  ownership  of  the  property  for  breach  of  the 
condition,  such  as  an  act  directing  the  possession  and  appro- 
priation of  the  property,  or  that  it  be  offered  for  sale  or  set- 

7Neal  V.  Finley,  (Ky.),  124  S.  W.  12  N.  Y.  121;  Southard  v.  Central 

348.  R.  R.  Co.,  2  Dutch.  13;  Dewey  v. 

SSchulenberg    v.    Harriman,    21  Williams,    40    N.    H.   222,   11   Am. 

Wall.  44,  22  L.  ed.  SSI;  Smith  v.  Dec.     708;     People    v.     Brown,     1 

Brannan,    13    Cal.    107;    Hooper   v.  Caines,  416;   United   States  v.  Re- 

Cummings,  45  Me.  359;  Towne  v.  pentigny,  5  Wall.  267,  18  L.  ed.  645; 

Bowers,  81  Mo.  491 ;  De  Peyster  v.  Cross  v.  Carson,  8  Blackf.   138,  44 

Michael,  6  N.  Y.  506,  57  Am.  Dec.  Am.  Dec.  742;  Butchers  and  Drov- 

470;    Gray    v.    Blanchard,    8    Pick.  ers'   Stock   Yard   Co.   v.  Louisville 

284;  Bangor  v.  Warren,  34  Me.  324,  &  N.  R.  Co.,  67  Fed.  Rep.  35;  State 

56  Am.  Dec.  657 ;  Norris  v.  Milner,  v.  Lake   Short  etc.   Ry.   Co.,   Com. 

20  Ga.  563 ;  Merritt  v.  Harris,  102  PI.  1  Ohio  N.  P.  292,  2  Ohio  Dec. 

Mass.  328.     See  Fonda  v.  Sage,  46  300;  Hayward  v.  Kinney,  84  Mich. 

Barb.  122;  Van  Rensselaer  v.  Ball,  591,  48  N.  W.  Rep.  170;  Copeland, 

19  N.  Y.   103;   Cross  v.  Carson,  8  v.  Copeland,  89  Ind.  29;  Higbee  v. 

Blackf.  138,  44  Am.  Dec.  742 ;  Nicoll  Rodeman,   129  Ind.  244,   28  N.   E. 

New   York   &   Erie   R.   R.    Co.,  Rep.  442;  Boone  v.  Clark,  129  111. 


V. 


1804 


THE  LAW  OF  DEEDS. 


[chap.    XXVII. 


tlement."'  In  the  case  of  a  private  grant,  the  heirs  of  the 
grantor  are  entitled,  as  well  as  the  grantor  himself,  to  take 
advantage  of  a  breach  of  the  condition.^  Land  was  conveyed 
by  husband  and  wife  to  a  person  on  condition  that  the  latter 
should  maintain  the  grantors  during  their  lives,  and,  in  case 
of  a  failure  to  comply  with  the  condition,  the  land  should  re- 
vert. Subsequently,  the  husband  secured  a  divorce  from  his 
wife,  and  the  grantee  declined  to  maintain  her  except  in  her 
former  husband's  house.  It  was  held  that,  while  the  husband 
only  could  enforce  a  forfeiture,  yet  the  wife  could  enforce  her 
claim  for  maintenance  as  a  lien  on  the  land,  and  that  the 
grantee  had  no  power  to  make  the  condition  that  he  sought  to 
impose.^  Where  there  has  been  a  breach,  if  the  grantor  re- 
mains in  possession,  and  has  not  waived  the  forfeiture,  the 
title  becomes  vested  in  him  again.^  If  it  is  stated  in  a  deed 
that  it  is  made  upon  condition  that  the  grantee  will,  within  a 
certain  time  from  the  date  of  the  conveyance,  erect  a  factory 
upon  the  premises,  the  condition  is  annexed  to  the  estate,  and 
is  not  merely  the  personal  covenant  of  the  grantor.*  Where  a 
deed  contains  a  condition  for  the  support  of  the  grantor  dur- 
ing his  life,  and  does  not  stipulate  that  the  support  shall  be 
furnished  by  the  grantee  personally,  the  condition  may  be 


466,  5  L.R.A.  276,  21  N.  E.  Rep. 
850;  Neimeyer  v.  Knight,  98  111.  222 ; 
Hooper  v.  Cummings,  45  Me.  359; 
Piper  V.  Union  Pac.  Ry.  Co.,  14 
Kan.  568;  McEIroy  v.  Morley,  40 
Kan.  76;  Owsley  v.  Owsley,  78  Ky. 
257.  See,  also,  Beaufort  etc.  Church 
V.  Elliott,  65  S.  C.  251,  43  S.  E. 
674;  Helms  v.  Helms,  135  N.  C. 
164,  47  S.  E.  415. 

5  Schulenberg  v.  Harriman,  21 
Wall.  44,  63,  22  L.  ed.  551,  555,  per 
Mr.  Justice  Field. 

1  Jackson  v.  Topping,  1  Wend. 
388,  19  Am.  Dec.  515;  Bowen  v. 
Bowen,  18  Conn.  535. 


2  Copeland  v.  Copeland,  89  Ind. 
29. 

3  Adams  v.  Ore  Knob  Copper  Co., 
4  Hughes  C.  C.  589. 

*  Langley  v.  Chapin,  134  Mass. 
82.  In  the  absence  of  objection  on 
the  part  of  the  grantor,  a  third  par- 
ty cannot  excuse  a  failure  of  duty 
by  placing  it  on  the  ground  of  a 
possible  violation  of  the  condition 
of  the  grant :  Butchers  and  Drov- 
ers' Stockyard  Co.  v.  Louisville  & 
N.  R.  Co.,  67  Fed.  Rep.  35. 


CHAP.    XXVII.]   CONDITIONS,  LIMITATIONS^  ETC. 


1805 


performed  by  some  other  person.'  When  the  grantor  is  en- 
titled to  a  reversion  of  the  estate  for  condition  broken,  his 
right  is  not  affected  by  the  fact  that  the  grantee  has  made 
outlays.  The  right  of  entry  is  a  legal  right.*  On  the  theory 
that  neither  executors  or  trustees,  as  such,  can  have  heirs,  it 
has  been  held  recently  in  New  York  that  the  heirs  of  executors 
or  trustees  executing  a  deed  have  no  right  of  re-entry.' 

§  970.     Conditions    subsequent    strictly    construed. — 

Conditions  subsequent,  having  the  effect  in  case  of  a  breach 
to  defeat  estates  already  vested,  are  not  favored  in  law,  and 
hence  always  receive  a  strict  construction.'  "A  deed  will  not 
be  construed  to  create  an  estate  on  condition,  unless  language 
is  used  which  according  to  the  rules  of  law,  ex  propria  vigore, 


*  Joslyn  V.  Parlin,  54  Vt.  670. 

6  Rowell  V.  Jewett,  71  Me.  408. 

■'Richter   v.    Distelhurst,    101    N 
Y.  Supp.  634,  116  App.  Div.  269. 

8  Hunt  V.  Beeson,  18  Ind.  380 
Page  V.  Palmer,  48  N.  H.  385 
Hoyt  V.  Kimball,  49  N.  H.  322 
Wilson  V.  Gait,  18  111.  431 ;  Laberee 
V.  Carleton,  53  Me.  213;  Thompson 
V.  Thompson,  9  Ind.  323,  68  Am. 
Dec.  638;  Ludlow  v.  New  York 
etc.  R.  R.  Co.,  12  Barb.  440;  Taylor 
V.  Sutton,  IS  Ga.  103,  60  Am.  Dec. 
682;  Weir  v.  Simmons,  55  Wis. 
637 ;  Merrifield  v.  Cobleigh,  4  Cush. 
178;  Southard  v.  Central  R.  R.,  26 
N.  J.  L.  13.  And  see  Board  etc. 
V.  Trustees  etc.,  63  111.  204;  Mc- 
Kelway  v.  Seymour,  29  N.  J.  L. 
322;  Bradstreet  v.  Clark,  21  Pick. 
389;  Voris  v.  Renshaw,  49  111.  432; 
Gladberry  v.  Sheppard,  27  Miss. 
203;  Martin  v.  Ballou,  13  Barb. 
119;  McWilliams  v.  Nisly,  2  Serg. 
&  E.  513,  7  Am.  Dec.  654;  Crane  v. 


Hyde  Park,  135  Mass.  147;  Kil- 
patrick  v.  Mayor  of  Baltimore,  81 
Md.  179,  27  L.R.A.  643,  48  Am. 
St.  Rep.  509;  Emerson  v.  Simpson, 
43  N.  H.  475,  82  Am.  Dec.  168; 
Peden  v.  Chicago  etc.  Ry.  Co.,  73 
Iowa,  328,  5  Am.  St.  Rep.  680; 
Rawson  v.  School  District,  7  Allen, 
125,  83  Am.  Dec.  670;  Cullen  v.  // 
Sprigg,  83  Cal.  56;  Van  Horn  v. 
Mercer,  29  Ind.  App.  277,  64  N.  E. 
531 ;  Reclamation  Dist.  v.  Van 
Loben  Sels,  145  Cal.  181,  78  Pac.  \^ 
638;  Hamel  v.  R.  Co.,  97  Minn. 
334,  107  N.  W.  139;  Park  Co.  v. 
Rohleder  (Va.)  61  S.  E.  794;  Burg- 
son  V.  Jacobson,  124  Wis.  295,  102 
N.  W.  563;  Coal  Co.  v.  Brown,  147 
Fed.  931 ;  Buck  v.  Macon,  85  Miss. 
580,  37  So.  562;  Richter  v.  Distel- 
hurst, 101  N.  Y.  Supp.  634,  116 
App.  Div.  269;  Yards  Co.  v.  Pack- 
ing Co.,  140  Fed.  701,  72  C.  C.  A. 
195;  Thompson  v.  Hart,  133  Ga. 
540,  66  S.  E.  270. 


1806 


THE  LAW  OF  DEEDS. 


[chap.    XXVII. 


imports  a  condition,  or  the  intent  of  the  grantor  to  make  a 
conditional  estate  is  otherwise  clearly  and  unequivocally  in- 
dicated." "Conditions  are  not  to  be  raised  readily  by  infer- 
ence or  argument."  ^  Where  a  deed  is  made  upon  condition 
that  the  grantee  shall  forever  keep  up  and  maintain  a  fence 
on  the  hne  between  the  land  conveyed  and  the  land  of  the 
grantor,  a  neglect  to  keep  up  the  fence  after  the  death  of  the 
grantee  will  not  forfeit  the  land.^  Or,  in  other  words,  to 
bind  the  heirs  or  assigns  to  the  performance  of  a  condition 
subsequent,  the  condition  must  expressly  mention  them.^ 
Where  the  clause  is  a  covenant,  the  legal  responsibility  for 
its  violation  is  a  liability  to  respond  in  damages,  while  a 
breach  of  the  condition  forfeits  the  estate.'    A  condition  sub- 


'  Rawson  v.  Inhabitants  of  School 
District  etc.,  7  Allen,  125,  127,  83 
Am.  Dec.  670.  As  to  what  words 
will  create  a  condition  subsequent, 
see  Ecroyd  v.  Coggeshall,  21  R. 
T.  41,  41  Atl.  260,  79  Am.  St.  Rep. 
741  and  see  note  pages  747  et.  seq. 

1  Emerson  v.  Simpson,  48  N.  H. 
475,  82  Am.  Dec.  168. 

2  Page  V.  Palmer,  48  N.  H.  385. 

3  Woodruff  V.  Water  Power  Co. 
10  N.  J.  Eq.  (2  Stockt.  Ch.)  489. 
And  see  Sharon  Iron  Co.  v.  Erie, 
41  Pa.  St.  341;  Houston  v.  Spru- 
ance,  4  Har.  (Del.)  117;  McCul- 
lough  V.  Cox,  6  Barb.  386;  Under- 
bill V.  Saratoga  R.  R.,  20  Barb. 
455.  When  the  language  used  in 
a  deed,  which  it  is  claimed  creates 
a  condition  subsequent,  is  capable 
of  any  other  reasonable  construc- 
tion that  will  uphold  the  estate  con- 
veyed by  the  deed,  courts  are  in- 
clined to  give  the  language  such  a 
construction.  For  various  cases  in 
which,  under  the  circumstances  ex- 
isting in  each  particular  case,  the 
rule  has  been  applied  or  recognized 


that  conditions  subsequent  are 
strictly  construed,  and  are  not  fav- 
ored, see  Raley  v.  Umatilla  Co.,  IS 
Or.  172,  3  Am.  St.  Rep.  142,  13 
Pac.  Rep.  190;  Portland  v.  Ter- 
williger,  16  Or.  465,  19  Pac.  Rep. 
90;   Coffin  v.   Portland,   16  Or.  11, 

17  Pac.  Rep.  580;  Blanchard  v. 
Detroit   etc.   R.    Co.,   31    Mich.   43, 

18  Am.  Rep.  142 ;  Hammond  v.  Port 
Royal  etc.  Ry.  Co.,  15  S.  C.  10; 
Hooper  v.  Cummings,  45  Me.  359; 
Laberee  v.  Carleton,  53  Me.  211; 
Bray  v.  Hussey,  83  Me.  329,  22 
Atl.  Rep.  220;  Cullen  v.  Sprigg, 
83  Cal.  56;  Jeffery  v.  Graham,  61 
Tex.  481 ;  Jackson  v.  Silvernail,  15 
Johns.  278;  Craig  v.  Wells,  11  N.  Y. 
315;  Woodworth  v.  Payne,  74  N.  Y. 
196,  30  Am.  Rep.  298;  Baker  v. 
Mott,  78  Hun,  141 ;  Duryee  v.  New 
York,  96  N.  Y.  477;  Graves  v.  De- 
terling,  120  N.  Y.  447;  Lyon  v. 
Hersey,  103  N.  Y.  264;  Post  v. 
Weil,  115  N.  Y.  361,  5  L.R  A.  422. 
12  Am.  St.  Rep.  809;  Elyton  Land 
Co.  V.  South  &  N.  Ala.  R.  Co., 
100   Ala.    396,    14    So.    Rep.    207; 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS^  ETC. 


1807 


sequent  is  not  created  by  the  words  that  "the  land  hereinafter 
described  shall  be  kept  by  said  board  of  police  for  the  use  of 
a  court  house  and  jail  for  the  benefit  of  said  county"  and  the 
words,  "to  have  and  to  hold  the  same  .  .  .  for  the  use 
of  said  county  as  aforesaid."  This  language  is  as  consistent 
with  the  grantor's  intent  to  repose  a  trust  and  confidence  in 
the  grantee  as  they  are  with  an  intent  to  impose  a  condition 
the  breach  of  which  would  work  a  forfeiture.'*     A  condition 


Woodfuff  V.  Water  Power  Co.,  10 
N.  J.  Eq.  489;  Southard  v.  Cent. 
Ry.  Co.,  26  N.  J.  L.  13;  Woodruff 
V.  Woodruff,  44  N.  J.  Eq.  349,  1 
L.R.A.  380,  16  AU.  Rep.  4;  Lawe 
V.  Hyde,  39  Wis.  345;  Wier  v. 
Simmons,  55  Wis.  637;  Mills  v. 
Evansville,  58  Wis.  135,  15  N.  W. 
Rep.  133;  Greene  v.  O'Connor,  18 
R.  I.  56,  19  L.R.A.  262,  25  Atl.  Rep. 
692;  Chapin  v.  School  District,  35 
N.  H.  445;  Emerson  v.  Simpson, 
43  N.  H.  475;  82  Am.  Dec.  168; 
Page  V.  Palmer,  48  N.  H.  385; 
Ho3^  V.  Kimball,  49  N.  H.  322; 
Scovill  V.  McMahon,  62  Conn.  378, 
36  Am.  St.  Rep.  350,  26  Atl.  Rep. 
479;  Morrill  v.  Wabash  Ry.  Co., 
96  Mo.  174,  9  S.  W.  Rep.  657; 
Stillwell  V.  St.  Louis  &  H.  Ry.  Co., 
39  Mo.  App.  221 ;  Roanoke  Ins.  Co., 
V.  Kansas  City  &  S.  R.  Co.,  108  Mo. 
50,  17  S.  W.  1000;  Weinreich 
V.  Weinreich,  18  Mo.  App.  364; 
Studdard  v.  Wells,  120  Mo.  25,  25 
S.  W.  Rep.  201 ;  Waterman  v.  Clark, 
58  Vt.  601,  2  Atl.  Rep.  578;  Palmer 
V.  Ryan,  63  Vt.  227,  22  Atl.  Rep. 
574;  Farnham  v.  Thompson,  34 
Minn.  330,  57  Am.  Rep.  59;  Chute 
V.  Washburn,  44  Minn.  312,  46  N. 
W.  Rep.  555 ;  Thompson  v.  Thomp- 
son, 9  Ind.  323,  68  Am.  Dec.  638; 
Sumner  v.  Darrell,  128  Ind.  38,  13 


L.R.A.  173,  27  N.  E.  Rep.  162; 
Taylor  v.  Sutton,  15  Ga.  103,  60 
Am.  Dec.  682;  Peden  v.  Chicago 
etc.  R.  Co.,  73  Iowa,  328,  5  Am. 
St.  Rep.  680;  Chapin  v.  Harris,  8 
Allen,  594;  Packard  v.  Ames,  16 
Gray,  327;  Merrifield  v.  Cobleigh, 
4  Cush.  178;  Ayer  v.  Emery,  14 
Allen,  67;  Hadley  v.  Hadley  Mfg. 
Co.,  4  Gray,  140;  Sohier  v.  Trinity 
Church,  109  Mass.  1 ;  Stone  v. 
Houghton,  139  Mass.  175 ;  Curtis 
V.  Topeka,  43  Kan.  138,  23  Pac. 
Rep.  98;  Ruggles  v.  Clare,  45  Kan. 
662,  26  Pac.  Rep.  25 ;  Gallagher  v. 
Herbert,  117  111.  160;  Boone  v. 
Clark,  129  111.  466,  5  L.R.A.  276; 
Stanley  v.  Colt,  5  Wall.  119,  18  L. 
ed.  502;  Glenn  v.  Davis,  35  Md. 
208,  6  Am.  Rep.  389. 

*  Soria  v.  Harrison  County,  Miss. 
50  South,  443.  It  was  contended 
that  a  condition  was  created  by 
the  language  of  two  deeds  in  the 
first  of  which  it  was  stated : 
"In  trust,  nevertheless,  that  said 
premises  shall  be  used,  kept,  main- 
tained and  disposed  of  as  a  place 
of  divine  worship  for  the  use  of 
the  ministry  and  membership  of 
the  Methodist  Episcopal  Church, 
South,  subject  to  the  discipline,  us- 
age and  ministerial  appointments  of 
said  church  as  from  time  to  time 


1808 


THE  LAW  OF  DEEDS. 


[chap.   XXVH. 


subsequent  will  not  be  held  to  have  been  created  unless  the 
language  of  the  deed  creates  an  estate  upon  condition  in  ex- 
press terms,  or  unless  the  entire  instrument  shows  the  grant- 
or's intent  to  create  a  conditional  estate.*^ 


§  970a.  Sale  is  not  an  abandonment. — A  sale  of  prop- 
erty is  not  an  abandonment  within  the  meaning  of  a  clause 
that  the  property  conveyed  shall  revert,  if  the  grantees  should 
"abandon"  the  property.^  "There  is  a  great  difference  be- 
tween abandon  and  surrender;  between  abandoning  a  right 
or  thing  and  the  surrender  of  such  right  or  thing  to  another ; 
between  giving  it  up  because  it  is  regarded  as  utterly  useless 
or  valueless  and  surrendering,  assigning  or  transferring  it  to 
another  as  a  valuable  right  or  thing."  '    This  point  has  fre- 


authorized  and  declared  by  the  gen- 
eral conference  of  said  church  and 
the  annual  conferences  within  those 
bounds  the  said  premises  are  situ- 
ate. To  have  and  to  hold  said  lot 
of  land,  with  all  and  singular  the 
rights,  members,  and  appurtenances 
thereto  appertaining,  to  the  only 
proper  use,  benefit  and  behoof  of 
them,  the  said  trustees  and  their 
successors  in  office,  in  fee  simple; 
and  the  said  Methvin  S.  Thompson 
the  said  bargained  premises  unto 
the  said  trustees  as  aforesaid  for 
church  uses  only,  and  their  succes- 
sors, against  the  said  Methvin  S. 
Thompson,  his  heirs,  executors  and 
administrators  and  against  all  and 
every  other  person  or  persons,  shall 
and  will  warrant  and  forever  de- 
fend by  virtue  of  these  presents." 
In  the  other  deed  it  was  recited 
that  the  conveyance  was  made  upon 
"the  same  conditions  of  trust  for 
like  purposes  as  the  original  deed 
given  in  1870."  The  habendum  and 
warranty  clause   in  the  last   deed 


is  in  the  following  language:  "To 
have  and  to  hold  the  said  extra 
ground  to  the  said  trustees  for  the 
benefit  and  behoof  of  themselves 
and  their  successors  in  fee  simple; 
and  the  said  parties  of  the  first 
part  the  said  bargained  premises  to 
the  trustees  aforesaid  and  their 
successors  for  church  uses,  also  on 
which  to  erect  a  parsonage  and 
other  necessary  buildings,  against 
the  parties  of  the  first  part,  their 
heirs,  executors,  and  administrators 
and  all  and  every  other  person  or 
persons,  shall  and  will  warrant  and 
defend  by  virtue  of  these  presents." 
The  court  said  these  clauses  did  not 
make  the  deed  a  grant  upon  con- 
dition subsequent.  Thompson  v. 
Hart,  133  Ga.  540,  66  S.  E.  271. 

5  Thompson  v.  Hart,  Ga.  66  S. 
E.  270. 

6  St.  Peters  Church  v.  Bryan,  144 
N.  C.  633,  10  L.R.A.(N.S.)  633,  56 
S.    E.   688. 

^Hagan  v.  Gaskill,  4  N.  J.  Eq. 
217,   6   Atl.   880. 


CHAP.    XXVII.]   CONDITIONS,  LIMITATIONS^  ETC.  1809 

quently  arisen  in  the  matter  of  public  lands  and  it  is  held  that 
an  abandonment  of  land  in  favor  of  a  particular  individual 
and  for  a  consideration  cannot  exist.'  So  in  regard  to  water 
rights.®  When  a  transaction  fails  as  a  sale  it  cannot  be  trans- 
formed into  an  abandonment.^  An  abandonment  contem- 
plates the  act  of  one  party  only.  It  cannot  arise  where  the 
act  of  two  parties  has  affected  the  transfer.  An  abandonment 
does  not  exist  except  where  the  right  abates  hut  if  it  continues 
in  another  by  a  transfer  there  has  been  no  abandonment.^  But 
a  conveyance  may  amount  to  an  abandonment  where  a  widow 
claims  dower  in  a  mining  claim  which  was  sold  before  title 
was  perfected.' 

§  970b.  Clauses  construed  as  covenants  rather  than 
conditions. — Courts  are  inclined  to  construe  clauses  in  a 
deed  as  covenants  rather  than  as  conditions,  when  the  lan- 
guage employed  is  capable  of  construction  as  a  covenant.  In 
all  cases  of  doubt  whether  a  clause  is  intended  as  a  condition 
or  a  covenant,  the  doubt  should  be  resolved  in  favor  of  hold- 
ing the  clause  to  be  a  covenant  and  not  a  condition.  A  clause 
that  the  deed  is  subject  to  the  condition  that  no  dwelling  house 
or  other  buildings,  with  the  exception  of  necessary  outbuild- 
ings shall  be  constructed  on  the  rear  of  the  lot  and  that  no 
building  erected  upon  the  land  conveyed  shall  be  less  than  a 
certain  number  of  stories  in  height  is  a  restriction  merely.* 
So  is  a  clause  a  mere  restriction  that  the  deed  is  subject  to 
the  condition  that  no  building  shall  be  erected  on  a  part  of 
the  land  conveyed  until  other  persons  have  built  upon  an  ad- 

8  Stephens   v.   Mansfield,   11   Cal.  Min.  Co.,  70  Fed.  455,  17  C.  C.  A. 
363.  190,   44   U.    S.    App.   204. 

9  Middle     Creek     Ditch     Co.,     v.  3  Black  v.  Elkhorn  Min.  Co.,  163 
Henry,  15  Mont.  576,  39  Pac.  1054  U.  S.  445,  41  L.  ed.  221,   16  Sup. 

iMcLeran  v.  Benton,  43  Cal.  467.       Ct.  Rep.  1101. 
2  Richardson  v.  McNulty,  24  Cal.  *  Ayling  v.  Kramer,  133  Mass.  12. 

544.     See,   also.    Doe  v.   Waterloo  - 
Deeds,  Vol.  U.— 114 


1810 


THE  LAW  OF  DEEDS. 


[chap.    XXVII. 


joining  lot."  A  clause  in  a  deed  to  a  railroad  company  that 
it  is  executed  in  consideration  of  an  agreement  on  the  part  of 
the  company  to  erect  and  maintain  a  depot  on  the  land  con- 
veyed does  not  create  a  condition  subsequent.  Such  a  clause 
is  but  an  agreement  or  covenant  by  the  grantee,  and  if  there 
be  a  breach,  the  grantor  cannot  maintain  ejectment.^  So  is  a 
clause  that  the  land  is  conveyed  for  the  erection  and  main- 
tenance of  a  freight  house.'  A  deed  conveying  certain  land 
and  containing  a  clause  that  it  granted  also  the  exclusive  use  of 
a  certain  courtyard  "upon  condition  that  said  yard  shall  only 
be  used  as  a  front-door  yard,"  and  that  the  grantee  "shall 
put  no  building  upon  said  yard  except  front  door  steps"  is 
not  a  condition  but  a  limitation  upon  the  use.'  No  condition 
subsequent  is  created  by  a  clause  that  the  property  conveyed 
shall  be  kept  and  maintained  for  the  purpose  of  erecting  and 
maintaining  an  institution  of  learning  on  the  granted  prop- 
erty.' A  condition  is  not  created  by  a  clause  in  a  deed  con- 
veying land  to  a  railroad  company  and  reciting  that  it  was 
made  in  consideration  of  an  agreement  by  the  railroad  com- 


6  Episcopal  City  Mission  v.  Ap- 
pleton,  117  Mass.  326. 

6  Shreve  v.  Norfolk  &  W.  R.  Co. 
109  Va.  706,  23  L.R.A.(N.S.)  771, 
64  S.  E.  972.  See,  also,  King  v. 
Norfolk  &  W.  R.  Co.,  99  Va.  625, 
39  S.  E.  701;  Lowman  v.  Crawford, 
99  Va.  688,  40  S.  E.  17;  Alexandria 
&  W.  R.  Co.  V.  Chew,  27  Gratt. 
547. 

In  King  V.  Norfolk  &  W.  R.  Co., 
99  Va.  625,  39  S.  E.  701  it  is  said: 
"We  are  of  opinion  that  the  lan- 
guage employed  in  the  deeds  under 
consideration  is  apt  language  to 
create  a  fee  simple  and  that  the 
superadded  words  under  the  au- 
thorities amount  to  covenants  rath- 
er then  conditions.    The  deeds  arc 


not  voluntary,  as  contended,  but 
are  based  upon  the  benefits  to  ac- 
crue to  the  reserved  property  of 
the  grantor  by  reason  of  the  use 
of  the  granted  premises  as  a  rail- 
road terminal.  Hence  they  must 
be  interpreted  as  any  other  deeds 
based  upon  a  valuable  considera- 
tion. The  language  is  to  be  taken 
most  strongly  against  the  grantor, 
and  most  favorably  to  the  grantee." 

7Noyes  v.  St.  Louis  A.  &  P.  H. 
R.  Co.,   (111.)  21  N.  E.  487. 

SEckhart  v.  Irons,  128  111.  568, 
20   N.   E.   687. 

9  Davis  v.  Jernigan,  71  Ark.  494, 
76  S.  W.  554. 


CHAP.    XXVII,]    CONDITIONS,  LIMITATIONS^  ETC.  1811 

pany  to  establish  and  maintain  a  station  on  the  ground  con- 
veyed.^ 

§  970c.  Same  subject  continued. — Conditions  subse- 
quent are  not  favored  and  if  the  language  of  a  deed  will  bear 
any  other  construction  it  will  not  be  construed  as  creating  a 
condition  subsequent.  Although  a  deed  may  contain  a  clause, 
that  it  was  given  by  the  grantor  and  accepted  by  the  grantee 
upon  the  express  agreement  of  the  la'tter  to  build  a  house  upon 
the  property  conveyed  of  a  value  and  within  a  time  stipulated 
and  although  it  may  further  state  that  this  agreement  was  a 
part  of  the  consideration  for  the  deed,  still  no  condition  sub- 
sequent is  created.  This  clause  creates  only  a  personal  cove- 
nant on  the  part  of  the  grantee.  If  the  grantee  fails  to  com- 
ply with  the  agreement,  he  does  not  suffer  a  forfeiture,  nor 
is  it  permissible  to  prove  by  parol  evidence  that  it  was  in- 
tended to  create  a  condition  subsequent.^  A  clause  that  the 
property  conveyed  is  to  be  held  on  condition  and  in  trust  that 
the  grantee  "shall  erect  and  put  up  a  suitable  building  or 
buildings  for  a  high  school"  and  further,  that  such  building 

1  Louisville  H.  &  H.  L.  Co.,  v.  words  is  necessary  to  create  a  con- 
Baskett,  (Ky.)  31  Ky.  L.  Rep.  1035,  dition  subsequent,  still  it  must  be 
104  S.  W.  695.  created    by    express    terms    or    by 

2  Hawley  v.  Kaf  etz,  148  Cal.  393,  clear  implication.  Merely  reciting 
3  L.R.A.(N.S.)  741,  83  Pac.  248.  in  a  deed  that  it  is  in  consideration 
Said  the  court  per  Mr.  Justice  of  a  certain  sum,  and  that  the 
Lorigan :  "Conditions  subsequent  grantee  shall  do  other  things  speci- 
are  those  which  in  terms  operate  fied  therein,  does  not  create  an 
upon  an  estate  conveyed  and  rend-  estate  upon  condition.  There  must 
er  it  liable  to  be  defeated  for  be  language  used  which  is  so  clear 
breach  of  the  conditions.  Such  as  to  leave  no  doubt  that  the  grant- 
conditions  are  not  favored  in  law  or  intended  that  an  estate  upon 
because  they  tend  to  destroy  es-  condition  should  be  created — lan- 
tates,  and  no  provision  in  a  deed  guage  which  ex  propria  vigore  im- 
relied  on  to  create  a  condition  sub-  ports  such  a  condition.  Cullen  v. 
sequent  will  be  so  interpreted  if  Sprigg,  83  Cal.  64,  23  Pac.  222;  // 
the  language  of  the  provision  will  Behlow  v.  Southern  Pac.  R.  R.  Co., 
bear  any  other  reasonable  construe-  130  Cal.   19,  62  Pac.  295." 

tion.      While   no    precise    form    of 


1812  THE  LAW  OF  DEEDS.  [CHAP.    XXVII. 

"shall  always  be  devoted  to  school  purposes"  creates  a  cove- 
nant merely.^  A  deed  which  conveyed  land  to  a  university 
corporation  contained  a  recital  that  it  was  made  "upon  the 
express  conditions  and  for  the  consideration  hereinafter 
named."  These  conditions  were  that  the  land  should  be  de- 
voted exclusively  for  university  purposes  as  a  part  of  its 
campus,  and  that  no  buildings  excepting  those  devoted  to  uni- 
versity purposes  should  be  erected  upon  the  land  conveyed, 
and  also  that  at  least  one  building  of  a  specified  cost  should 
be  erected  upon  the  property  within  a  certain  period  fixed  in 
the-  conveyance.  The  deed  provided  that  in  case  the  property 
was  abandoned  for  university  purposes  or  was  used  for  other 
purposes  before  a  time  specified,  the  title  should  revert,  but 
expressly  provided  that,  after  the  time  thus  specified,  there 
should  be  no  reversion.  The  court  decided  that  the  provisions 
as  to  use  before  a  certain  time  were  conditions  from  which 
the  land  became  released  when  such  time  expired,  but  that  as 
to  the  clause  that  the  land  should  be  used  exclusively  as  a 
part  of  the  campus,  such  clause  must  be  construed  as  creating 
a  covenant  running  with  the  land.  Upon  the  breach  of  the 
covenant,  the  grantor  would  be  entitled  to  recover  damages, 
or  in  a  proper  case,  he  might  be  entitled  to  enforce  perform- 
ance in  a  court  of  equity.*  •  Whether  the  provisions  of  a  deed 
are  to  be  construed  as  covenants  or  as  conditions  must  be  de- 
termined by  a  construction  of  the  entire  instrument.  In  case 
of  doubt  they  will  be  construed  as  covenants  and  not  as  con- 
ditions in  order  to  prevent  a  forfeiture  of  the  estate,  and 
this  construction  is  to  be  reached  regardless  of  the  technical 
language  used  by  the  parties.  To  employ  the  language  of 
Judge  Cross:  "Terms  which,  taken  by  themselves,  import 
a  condition,  are  frequently  construed  as  covenants,  while 
terms  which  taken  by  themselves,  import  covenants,  are  fre- 

3  Carroll  County  Academy  v.  Gal-  *  Los      Angeles      University      v. 

latin  Academy  Co.,  104  Ky.  621,  Swarth,  54  L.R.A.  262,  46  C.  C  A. 
47   S.  W.  617.  647,  107  Fed.  79S. 


CHAP.    XXVII.]  THE  LAW  OF  DEEDS.  1813 

quently  construed  to  be  conditions;  or,  stated  in  a  different 
way,  the  intent  of  the  parties  is  gathered  from  the  construc- 
tion of  the  whole  instrument,  regardless  of  the  technical 
meaning  of  the  terms  used."  ^ 

§  970d.     Condition  subsequent  when  intent  clear. — It  is 

very  difficult  to  say  with  any  degree  of  precision  when  lan- 
guage importing  a  condition  will  be  construed  as  a  personal 
covenant.  The  general  rule  undoubtedly  is  that  courts  will 
incline  to  construe  the  language,  wherever  it  is  possible  to 
do  so  into  a  covenant  rather  than  a  condition.  Still  if  it  is 
the  clear  intention  of  the  parties  to  create  an  estate  upon  con- 
dition subsequent,  the  courts  must  give  effect  to  the  intention 
of  the  parties.  Thus  a  deed  contained  this  clause:  "And 
this  conveyance  is  made  upon  the  express  condition  that  the 
said  Wilder  and  Hills,  their  heirs  and  assigns,  shall  never 
erect  any  building  nearer  the  street  than  the  store  building 
thereon."  The  question  presented  was  whether  this  was  a 
common  law  condition.  Mr.  Justice  Hammond  in  deliver- 
ing the  opinion  of  the  court  said :  "The  deed  is  in  the  ordi- 
nary form  of  a  warranty  deed,  in  general  use  in  this  common- 
wealth, and  bears  upon  its  face  evidence  that  the  draftsman 
understood  the  meaning  of  the  legal  terms  used.  It  conveys 
in  apt  language  the  land  now  owned  by  the  defendants,  and 
creates  also  in  express  terms  two  easements,  one  of  which  is 
a  right  of  way  over  a  strip  of  land  eight  feet  wide  on  the 
grantor's  land  southerly  of  and  adjoining  the  land  conveyed 
and  the  other  is  the  right  to  maintain  a  drain  from  the  store 
building  as  conveyed  to  the  grantor  by  a  prior  deed;  and  it 
reserves  a  right  of  way  over  a  strip  of  land  upon  the  south- 
erly side  of  the  land  conveyed,  making  in  connection  with  the 
right  of  way  above  conveyed  to  the  defendants,  a  passage- 

SMinard  v.    Delaware   L.    &   W.       R.    Co.,    139    Fed.    60,    affirmed    in 
153    Fed.   578. 


1814  THE  LAW  OF  DEEDS.  [CHAP.    XXVIl. 

way  sixteen  feet  wide  to  be  used  in  common;  and  also  the 
right  to  maintain  a  certain  drain  from  the  cellar  of  the  house 
where  the  grantor  resides  to  the  cellar  under  said  store  build- 
ing. Up  to  this  point  the  grantor  has  used  language  apt  to 
create  easements  and  reservations.  He  desires  to  do  one  thing 
more,  and  that  is  to  prevent  the  erection  of  any  building 
within  a  certain  distance  of  the  street.  Everything  else  has 
been  provided  for.  Here  the  language  changes  and  as  to  this 
one  thing  the  deed  is  upon  the  express  condition  that  this 
provision  be  complied  with.  The  language  is  "upon  the  ex- 
press condition"  an  emphatic  form  of  the  expression  "on  con- 
dition." With  reference  to  the  use  of  this  phrase  the  learned 
Justice  proceeded :  "The  common  law  as  to  the  creation  of 
conditional  estates  has  always  been  considered  a  part  of  our 
common  law.  If  we  are  to  have  such  estates,  it  is  important 
that  there  should  be  the  least  possible  uncertainty  as  to  the 
form  of  the  language  to  be  used  in  creating  them ;  and  where 
we  find  in  a  deed  an  intensified  form  of  the  phrase,  which 
from  the  earliest  times  has  been  regarded  as  "the  most  ex- 
press and  proper"  phrase  by  which  to  create  such  an  estate, 
it  is  to  be  assumed,  in  the  absence  of  anything  appearing  in 
the  deed  to  the  contrary,  that  the  phrase  is  used  for  its  proper 
purpose,  namely,  to  create  such  an  estate,  and  that  such  an 
estate  is  thereby  created."  ®    A  condition  subsequent  is  created 

*  Clapp  V.  Wilder,  176  Mass.  332,  intended  in  the  full  technical  sense, 
50  L.R.A.  120,  57  N.  E.  692.  In  and  in  such  cases  a  restriction,  and 
that  case  the  court  said  :  "No  doubt  not  a  technical  condition  is  the  re- 
there  is  a  disposition  among  courts  suit."  The  court  referred  to  the 
to  look  for  something  in  the  deed  cases  of  Sohier  v.  Trinity  Church, 
which  shall  modify  the  severity  of  109  Mass.  1,  19;  Episcopal  City 
the  language;  and  sometimes  con-  Mission  v.  Appleton,  117  Mass.  326; 
siderable  astuteness  has  been  exer-  Skinner  v.  Shephard,  130  Mass. 
cised  in  this  direction  (Post  v.  180;  Ayling  v.  Kramer,  133  Mass. 
Weil,  115  N.  Y.  361,  5  L.R.A.  422,  12;  Cassidy  v.  Mason,  171  Mass. 
22  N.  E.  145),  and  no  doubt  the  507,  50  N.  E.  1027;  Locke  v.  Hale, 
language  is  sometimes  used  where  165  Mass.  20,  42  N.  E.  331.  And 
from  the  whole  deed  it  sufficiently  distinguished  them, 
appears  that  it  could  not  have  been 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS,,  ETC.  1815 

by  a  clause  that  the  grantee  shall  erect  and  maintain  a  fence 
and  that  for  his  failure  to  comply,  the  deed  shall  become  null 
and  void.'  If  a  deed  contains  a  provision  that  the  land  con- 
veyed is  to  be  used  by  a  city  for  the  purpose  of  erecting  upon 
it  a  city  hall  and  that  it  is  made  upon  the  express  condition 
that  a  cessation  of  such  use  would  cause  it  to  revert  to  the 
grantor,  a  condition  subsequent  is  created.  If  the  city  should 
fail  to  erect  a  city  hall  within  a  reasonable  time  the  grantor 
would  have  the  right  to  a  forfeiture  and  re-entry.'  It  is  not 
essential  that  there  should  be  a  re-entry  clause  to  authorize 
the  grantor  to  terminate  an  estate,  after  there  has  been  a 
breach  of  a  condition.^  Where  property  is  conveyed  upon 
the  condition  that  it  shall  be  used  solely  for  maintaining  an 
academic  or  collegiate  school  and  for  no  other  purpose,  a  condi- 
tional estate  is  created.^  A  conditional  estate  arises  from  a 
clause  in  a  deed  that  it  is  made  upon  "condition"  that  no 
building  shall  be  erected  upon  the  property  within  a  certain 
distance.''  The  words  that  the  deed  is  made  upon  "condition" 
that  certain  things  shall  be  done  or  not  done  is  often  decisive 
in  determining  that  a  conditional  estate  has  been  created.' 

§  971.  Some  instances  of  construction. — A  deed  con- 
veying a  fee-simple  title  to  a  tract  of  land  contained  the  clause : 
"It  being  expressly  understood  by  the  parties  that  the  said 
tract  or  parcel  of  land  is  not  to  be  put  to  any  other  use  than 
that  of  a  depot  square,  and  that  no  business  or  improvements 

1  Randall  v.  Wentworth,  100  Me.  3  Brown  v.  Chicago  &  N.  W.  R. 

177,  60  Atl.  871.  Co.,      (Iowa)     82     N.     W.     1003. 

8  Union    College    v.    New    York,       Blanchard  v.  Detroit  L.  &  L.  M.  R. 

65  App.  Div.  553,  73  N.  Y.  Supp.  51.       Co.,  31  Mich.  43,  18  Am,  Rep.  142; 

9  Papst  V.  Hamilton,  133  Cal.  631,       Marshalltown  v.  Forney,  61  Iowa, 

66  Pac.  10.  578,    16    N.    W.    740;    Langley    v. 

1  Papst  V.  Hamilton,  133  Cal.  631,  Chapin,    134    Mass.    82;    Gray  v. 
66  Pac.  10.  Blanchard,   8    Pick.    284;    Rose  v. 

2  Adams  v.  Valentine,  Z2,  Fed.  1.  Hawley,   118  N.  Y.  502,  23  N.  E. 
See,    also,    Hoyt    v.    Ketcham,    54  904. 

Conn.  60,  5  Atl.  606. 


1816 


THE  LAW  OF  DEEDS. 


[chap.    XXVII. 


are  to  be  put  on  the  said  tract,  but  that  which  is  immediately 
connected  with  the  Western  and  Atlantic  Railroad."  This 
clause  was  construed  to  be  a  covenant  and  not  a  condition,  the 
remedy  for  a  breach  of  which  was  an  action  for  damages.* 
A  distinction  is  also  to  be  noticed  between  a  condition  and  a 
remainder.  By  a  condition  an  estate  is  defeated  before  its 
natural  termination.  A  remainder,  however,  takes  effect  only 
on  the  termination  of  a  preceding  estate.*^  A  deed  of  land  to 
a  church  without  designating  any  use  or  condition  transfers  a 
fee  simple.  The  title  does  not  become  divested  when  the  prop- 
erty conveyed  is  no  longer  used  for  religious  purposes.®  A 
condition  subsequent  arises  from  the  use  of  the  words  "shall 
indemnify  and  save  harmless."  ^    Words  used  in  a  deed  will 


4  Thornton  v.  Trammell,  39  Ga. 
202.  Brown,  C.  J.,  dissented,  but 
Warner,  J.,  in  delivering  the  opin- 
ion of  the  court,  said:  "The  con- 
veyance itself  is  an  unqualified  grant 
of  the  land  to  the  grantee.  The 
words  of  the  grantor  in  conveying 
the  land  to  the  grantee  impose  no 
conditions  upon  the  latter  which 
would  be  compulsory  on  him  to  do 
any  act  whatever.  Independent  of 
the  understanding  or  covenant  of  the 
parties,  as  expressed  in  the  deed, 
there  is  nothing  in  this  conveyance 
to  distinguish  it  from  any  other 
deed  of  bargain  and  sale,  conveying 
an  absolute  fee  simple  estate  in  a 
tract  of  land.  There  being  no  con- 
dition expressed  in  the  grant  of  the 
land  to  the  grantee,  by  the  grantor, 
of  course  there  can  be  no  forfeiture 
of  the  grantee's  estate  therein,  for 
condition  broken.  If  the  covenant 
of  the  grantee  has  been  broken,  the 
plaintiffs  have  an  adequate  remedy 
by  an  action  thereon  to  recover 
damages."  For  cases  in  which 
clauses  containing  conditions  have 


been  construed,  see  Rainey  v. 
Chambers,  56  Tex.  17;  Owsley  v. 
Owsley,  78  Ky.  257 ;  Taylor  v.  Bin- 
ford,  37  Ohio,  262;  Neimeyer  v. 
Knight,  98  111.  222;  Barrie  v.  Smith, 
47  Mich.  130;  Poitevent  v.  Han- 
cock County  Supervisors,  58  Miss. 
110;  Risley  v.  McNiece,  71  Ind. 
434;  Drew  v.  Baldwin,  48  Wis.  529; 
Randall  v.  Marble,  69  Me.  310,  31 
Am.  Rep.  281 ;  King  v.  Malone,  31 
Gratt  514;  Swoll  v.  Oliver,  61  Ga, 
248. 

6  Sterns  v.  Godfrey,  16  Me.   158. 

6  Cook  v.  Leggett,  88  Ind.  211. 
See  generally  Crane  v.  Hyde  Park, 
135  Mass.  147;  Erwin  v.  Hurd,  13 
Abb.  N.  C.  91 ;  Methodist  Episcopal 
Church  v.  Old  Columbia  Public 
Ground  Co.,  103  Pa.  St.  608;  Brown 
v.  Caldwell,  23  W.  Va.  187,  48  Am. 
Rep.  376;  Mills  v.  Evansville  Sem- 
inary, 58  Wis.  135;  Jeffersonville 
etc.  R.  R.  Co.,  v.  Barbour,  89  Ind. 
375. 

'Michigan  State  Bank  v.  Hast- 
ings, 1  Doug.  225,  41  Am.  Dec.  549. 
A  clause  providing  that  the  grantee 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS^  ETC.  1817 

not  be  construed  into  a  condition  subsequent  when  this  is  not 
the  intention  of  the  parties,  nor  when  they  can  receive  any 
other  reasonable  construction.'  A  condition  subsequent  is 
created  by  the  use  of  the  words,  "provided,  always,  and  this 
deed  is  upon  the  express  condition,"  that  the  grantee  shall 
maintain  a  specified  system  of  drainage.'  A  restriction 
merely  is  created  by  a  clause  that  a  conveyance  is  made  sub- 
ject to  the  condition,  that  no  building  shall  be  erected  on  the 
property  within  a  certain  distance  of  the  street.^  A  condi- 
tion is  not  created  by  a  clause  that  the  property  is  conveyed 
for  the  purpose  of  erecting  a  church  thereon.^  But  a  cove- 
nant running  with  the  land  is  created  by  a  clause  in  the  haben- 
dum that  the  deed  is  upon  the  express  condition  that  the 
grantee,  his  heirs  and  assigns,  shall  refrain  from  erecting  any 
building  that  would  be  a  nuisance.^  A  clause  stating  that  the 
deed  is  made  upon  the  express  stipulation  that  a  dwelling 
house  shall  be  erected  on  the  land,  within  a  specified  time  at  a 
cost  of  not  less  than  a  specified  sum  does  not  create  a  condi- 

shall  erect  and  maintain  a  division  §  838  and  notes,  ante.    A  clause  in 

fence  is  an  implied  covenant,   and  a    deed    that    a    railroad    company 

not   a   condition    subsequent    for   a  should   erect   a   crossing   under   its 

breach  of  which  the  land  will  be  track    will,    in    the    absence    of    a 

forfeited :     Palmer's     Executor    v.  clause  of  forfeiture,  or  other  indi- 

Ryan,  63  Vt  227.    A  condition  sub-  cation  that  the  parties  intended  to 

sequent  is  not   created  by  a   deed  attach  a  condition  to  the  grant,  be 

conveying  and  warranting  land  to  construed  as  creating  an  easement 

a  town  for  common  school  purpos-  and    not    a    condition    subsequent : 

es:    Higbee  v.    Rodeman,   129   Ind.  Stillwell   v.    Railroad    Co.,   39   Mo. 

244.    But  it  may  impose  a  limitation  App.   221. 

upon  the  manner  in  which  the  prop-  ^  Hammond    v.     Port     Royal     & 

erty  is  to  be  leased :  Curtis  v.  Board  Augusta  Ry.  Co.,  15  S.  C.  10. 

of  Education,  43  Kan.  128.  ^  Skinner  v.  Shepard,    130   Mass. 

8  Wier  V.  Simmons,  55  Wis.  637.  180;  Cassidy  v.  Mason,  171  Mass. 

A  condition  subsequent  is  not  ere-  507,   50   N.   E.    1027. 

ated  by  implication  by  a  statement  ^  Farnham  v.  Thompson,  34  Minn, 

in   a   deed   that    it   is   made    for   a  330,  57  Am.  Rep.  59,  26  N.  W.  9. 

special  and  particular  purpose :  Kil-  ^  Element    v.    Burtis,    121    N.    Y. 

Patrick  V.  Mayor  of  Baltimore,  81  708,  24   N.   E.    1013. 
Md.  179,  48  Am.  St.  Rep.  509.    See 


1818  THE  LAW  OF  DEEDS.  [CHAP.    XXVII. 

tional  estate.*  No  conditional  estate  was  held  to  be  created 
in  a  deed  to  a  city  containing  a  clause  that  no  buildings  should 
be  erected  on  the  premises  conveyed  "for  any  other  municipal 
purposes  than  that  of  a  city  hall."  ^  Nor  is  such  an  estate 
created  by  a  clause  that  a  certain  fence  was  to  continue  where 
it  was  at  the  time  of  the  conveyance,  and  that  the  grantee 
should  maintain  the  fence.®  Nor  does  a  clause  that  the  grantee 
shall  maintain  at  his  own  expense  a  division  fence  create  a 
conditional  estate.''^ 

Other  cases,  as  pointed  out  in  a  preceding  paragraph,  will 
be  found  where  the  courts  have  decided  that  under  appar- 
ently similar  clauses,  estates  upon  condition  were  created. 
Thus,  such  an  estate  was  held  to  have  been  created  by  a  clause 
that  the  deed  was  made  upon  the  express  condition  that  if  a 
building  should  be  erected  on  the  tract  conveyed  or  any  part 
thereof  at  a  cost  less  than  a  certain  sum  "then  the  whole  of 
said  tract  shall  be  at  once  forfeited  and  revert  to  the  grantor, 
his  heirs  and  assigns  forever."  '  A  clause  that  the  grantee 
should  maintain  forever,  at  his  own  expense,  a  good  and  law- 
ful fence,  or  the  deed  should  be  void  was  held  to  create  a 
condition  subsequent.^  Where  land  was  conveyed  for  the 
purpose  of  a  private  cartway,  and  the  grantee  in  consideration 
of  the  conveyance  agreed  to  maintain  forever  at  his  own  ex- 
pense on  one  line  of  the  land  conveyed,  it  was  held  that  a 
condition  subsequent  was  thereby  created.^ 

§  972.  Time  for  performance  of  condition. — Where  no 
limitation  is  prescribed  within  which  a  condition  must  be  per- 

*  Stone  V.   Houghton,   139   Mass.  *  Hoyt  v.  Ketcham,  54  Conn.  60, 

175,  31  N.  E.  719.  5  Atl.  606. 

5  Ecroyd  v.  Coggeshall,  21  R.  I.  ^  Emerson  v.  Simpson,  43  N.  H. 
1,  41  Atl.  260,  79  Am.  St.  Rep.  475,  82  Am.  Dec.  186.  See,  also, 
741.  Randall  v.  Wentworth,  100  Me.  177, 

6  Hartung  v.  Witte,  59  Wis.  285,  60  Atl.  871. 

18  N.  W.  175.  1  McCue  v.  Barrett,  99  Minn.  352, 

7  Palmer  v.  Ryan,  63  Vt  227,  22      109  N.  W.  594. 
Aa  574. 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS,  ETC.  1819 

formed,  it  is  said  that  the  grantee  has  his  whole  lifetime  in 
which  to  perform  it.^  Other  courts  have  held  that  perform- 
ance of  the  condition  must  be  within  a  reasonable  time.^^  But 
where  a  prompt  performance  of  the  condition  is  essential  to 
give  the  grantor  the  entire  benefit  which  it  was  expected  he 
would  obtain,  or  where  the  immediate  performance  of  the 
condition  was  the  consideration  inducing  the  grantor  to  enter 
into  the  agreement,  the  grantee  must  perform  the  condition 
within  a  reasonable  time,  and  has  not  his  whole  lifetime  for 
its  performance.^  Thus,  where  a  deed  is  made  on  condition 
that  the  grantee  shall  build  a  dwelling-house  on  the  land 
conveyed,  and  allow  the  grantor  and  his  wife  to  reside  there 
during  their  joint  lives,  the  condition  must  be  performed  with- 
in a  reasonable  time.* 

§  972a.  Breach  of  condition  by  life  tenant  destroys  re- 
mainder.— Where  property  is  conveyed  upon  condition 
that  the  life  tenant  shall  maintain  it  in  repair,  pay  the  taxes 
levied  and  also  pay  an  annuity  to  the  grantor,  with  a  provision 
for  the  estate  in  remainder,  and  with  a  further  provision  that 
a  breach  of  the  condition  shall  give  the  grantor  the  right  to 
declare  a  forfeiture,  a  breach  of  the  condition  by  the  life  ten- 
ant will   destroy  the   remainder  as  well   as  the  life  estate.^ 

The  destruction  of  the  life  estate  leaves  the  remainder  with- 
out support.  There  must  be  a  continuous  ownership  in  suc- 
cession of  the  two  estates.^  In  the  language  of  Mr.  Justice 
Turley :     "There  is  no  principle  of  law  better  settled  than 

2  See  Hamilton  v.  Elliott,  5  Serg.       Dickey  v.  McCuUough,  2  W.  &  S. 
&  R.  383.  88;    Stuyvesant   v.    New    York,    11 

2a  Trustees  v.  City  of  New  York,       Paige,  414. 
1Z  N.  Y.  Supp.  51,  65  App.  Div.  553.  *  Hamilton  v.   Elliott,   5   Serg.  & 

3  Hamilton  v.   Elliott,  5   Serg.  &       R.  375. 

R.  375,  383.    See  Hayden  v.  Stough-  6  Lumsden   v.    Payne,    120   Tenn. 

ton,  5  Pick  528;  Ross  v.  Tremain,  407,  114  S.  W.  483,  21  L.R.A.(N.S.) 

2  Met.  495;  Reed  v.  Hatch,  55  N.  604. 

H.  327 ;  Fisk  v.  Chandler,  30  Me.  6  2  Washb.  Real  Prop.  §  1547. 
79;  Allen  v.  Howe,  105  Mass.  241; 


1820 


THE  LAW  OF  DEEDS. 


[chap,  xxvn. 


that,  if  the  particular  estate  which  supports  a  contingent  re- 
mainder is  destroyed  before  the  remainder  vests,  the  re- 
mainder is  defeated."  '  But  a  breach  of  the  condition  with- 
out forfeiture  will  not  destroy  the  remainder,^  In  an  action 
to  set  aside  a  deed  for  the  breach  of  a  condition  of  support  of 
the  grantor  by  the  grantee,  where  a  lien  had  been  reserved 
upon  the  property  conveyed  as  security  for  the  performance 
of  the  condition,  it  was  held  that  the  title  in  remainder  de- 
pended upon  the  performance  of  the  contract  and  that  upon 
the  destruction  of  the  life  estate  for  a  breach  of  condition  the 
remainder  fell  with  it.® 

§  973.  Clear  proof  of  forfeiture. — A  condition  cannot 
be  extended  beyond  its  terms,  and  a  party  who  insists  upon  a 
forfeiture  of  an  estate  for  a  breach  of  a  condition  must  bring 
himself  clearly  within  the  terms  of  the  condition.^     Where  a 


'  Peck  V.  Carmichael,  9  Yerg.  326. 

8  Williams  v.  Angell,  7  R.  I.  145. 

9  Lowe  V.  Stepp,  132  Ky.  75,  116 
S.  W.  293.  See  for  a  further  dis- 
cusssion  of  this  subject  Fearne, 
Contingent  Remainders,  270;  Tif- 
fany, Real  Property,  §  123;  Ed- 
wards, Property  in  Land,  128  note. 

iVoris  V.  Renshaw,  49  111.  425. 
It  is  said :  "When  a  grantor  of  land 
seeks  to  re-enter  for  breach  of  a 
condition  subsequent,  he  should  be 
required  to  establish  something 
more  than  a  technical  encroachment 
through  the  action  of  strangers 
without  the  grantee's  permission. 
It  is  not  enough  to  show  in  this 
way  that  the  letter  of  the  condition 
is  violated,  but  it  must  appear  that 
its  true  spirit  and  purpose  have 
been  willfully  disregarded  by  the 
grantee :"  Rose  v.  Hawley,  141  N. 
Y.  366,  378..  Said  Mr.  Chief  Jus- 
tice   Cole :    "It    is    elementary    law 


that  such  conditions  are  most 
strongly  construed  against  the 
grantor,  and  that  a  forfeiture  will 
not  be  enforced  unless  clearly  es- 
tablished :"  Mills  V.  Evansville  Sem- 
inary, 58  Wis.  135,  140,  15  N.  W. 
Rep.  133.  That  a  forfeiture  must 
be  clearly  established,  see,  also, 
Hadley  v.  Hadley  Mfg.  Co.,  4  Gray, 
140;  Merrifield  v.  Cobleigh,  4  Cush. 
178;  Bradstreet  v.  Clark,  21  Pick. 
389 ;  Crane  v.  Hyde  Park,  135  Mass. 
147;  Taylor  v.  Sutton,  15  Ga.  103, 
60  Am.  Dec.  682;  Osgood  v.  Ab- 
bott, 58  Me.  73;  Hooper  v.  Cum- 
mings,  45  Me.  359;  Laberee  v. 
Carleton,  53  Me.  211;  Sharon  Iron 
Co.  V.  Erie,  41  Pa.  St.  341 ;  Lehigh 
Coal  etc.  Co.,  v.  Eearly,  162  Pa. 
St.  338,  34  W.  N.  C.  501,  29  Atl. 
Rep.  736;  Hoyt  v.  Kimball,  49  N. 
H.  322;  Newman  v.  Rutter,  8 
Watts,  51;  Chapin  v.  School  Dis- 
trict, 35  N.  H.  445 ;  Jenkins  v.  Mer- 


CHAP.    XX VH.]    CONDITIONS,  LIMITATIONS^  ETC. 


1821 


deed  contained  a  condition  that  the  grantee  should  not  convey 
the  property  except  by  lease  for  a  term  of  years  prior  to  a 
day  named  in  the  deed,  and  the  grantee  subsequently,  and 
within  the  period  limited  in  the  deed,  executed  a  lease  of  the 
land  conveyed  for  ninety-nine  years,  and  also  at  the  same  time 
made  and  delivered  to  the  lessee  a  bond  for  an  absolute  deed, 
conveying  the  fee  after  the  expiration  of  the  limitation,  and 
received  from  the  purchaser  the  purchase  price  agreed  upon, 
these  acts  of  the  grantee,  it  was  held,  were  not  prohibited  by 
the  condition,  and  consequently  no  forfeiture  of  the  estate 
resulted.^ 

§  974.     Distinction  between  conditions  and  limitations. 

— A  limitation  determines  an  estate  upon  the  happening 


ritt,  17  Fla.  304;  Hunt  v.  Beeson, 
18  Ind.  380;  Thompson  v.  Thomp- 
son, 9  Ind.  323,  68  Am.  Dec.  638; 
Wilson  V.  Gait,  18  111.  431 ;  Lynde 
V.  Hough,  27  Barb.  415;  Wood- 
worth  V.  Payne,  74  N.  Y.  196,  30 
Am.  Rep.  298;  Williams  v.  Dakin, 
22  Wend.  201;  Ludlow  v.  New 
York  etc.  R.  R.  Co.,  12  Barb.  440; 
Craig  V.  Wells,  11  N.  Y.  315;  Bar- 
rie  V.  Smith,  47  Mich.  130,  10  N. 
W.  Rep.  168;  Waldron  v.  Toledo 
etc.  Ry.  Co.,  55  Mich.  420,  21  N. 
W.  Rep.  870;  Glenn  v.  Davis,  35 
Md.  208,  6  Am.  Rep.  389 ;  Southard 
V.  Cent.  R.  R.  Co.,  26  N.  J.  L. 
13 ;  McKelway  v.  Seymour,  29  N. 
J.  L.  321. 

2  Voris  V.  Renshaw,  49  111.  425. 
Mr.  Justice  Walker  said,  in  deliver- 
ing the  opinion  of  the  court : 
"When  we  apply,  then,  the  strictest 
rules  of  law  in  the  language  of  the 
books,  neither  the  bond  nor  the 
lease  was  a  conveyance  of  the  prop- 
erty. In  a  legal  sense,  a  bond  does 
not  convey  any  title.     It  is  but  an 


obligation  to  convey  at  a  future 
time.  It  is  in  no  sense  a  convey- 
ance, and  we  have  seen  that  where 
a  party  is  insisting  upon  the  for- 
feiture of  an  estate,  under  a  con- 
dition of  his  own  creation,  he  must 
bring  himself  clearly  within  the 
terms  of  the  condition.  We  have 
no  right  to  extend  the  condition 
beyond  its  terms.  We  cannot  say 
that  an  act  not  embraced  within 
the  language  is  within  the  spirit  of 
the  condition,  and  will  be  substitut- 
ed for  the  act  prohibited  by  the 
terms  of  the  condition.  To  do  so 
would  be  to  give  a  liberal  instead 
of  the  strictest  legal  construction. 
To  say  that  while  the  condition  only 
imposed  a  forfeiture  by  an  attempt 
to  convey  the  property  within  the 
limited  period,  by  an  instrument 
capable  of  conveying  it,  yet  it  was 
forfeited  by  executing  an  instru- 
ment that  does  not  convey,  and  all 
know  does  not  have  that  effect, 
would  be  to  givea  liberal  and  not 
a  strict  construction." 


1822 


THE  LAW  OF  DEEDS. 


[chap.    XXVII. 


of  the  event  itself,  without  the  necessity  of  doing  any  act  to 
regain  the  estate.^  "The  distinction  between  an  estate  upon 
condition,  and  the  limitation  by  which  an  estate  is  determined 
upon  the  happening  of  some  event,  is,  that  in  the  latter  case 
the  estate  reverts  to  the  grantor,  or  passes  to  the  person  to 
whom  it  is  granted  by  limitation  over,  upon  the  mere  happen- 
ing of  the  event  upon  which  it  is  limited,  without  any  entry 
or  other  act,  while  in  the  former,  the  reservation  can  only  be 
made  to  the  grantor  or  his  heirs,  and  an  entry  upon  breach  of 
the  condition  is  requisite  to  revest  the  estate.  The  provision 
for  re-entry  is  therefore  the  distinctive  characteristic  of  an 
estate  upon  condition ;  and  when  it  is  found  that  by  any  form 
of  expression  the  grantor  has  reserved  the  right  upon  the 
happening  of  any  event,  to  re-enter,  and  thereby  revest  in 
himself  his  former  estate,  it  may  be  construed  as  such."  * 
Where  a  condition  subsequent  is  followed  by  a  limitation 
over  in  case  of  a  breach  of  the  condition,  it  becomes  a  condi- 
tional limitation.^     No  one  but  a  grantor  or  his  heirs  can 


3  Guild  V.  Richards,  16  Gray,  309; 
Osgood  V.  Abbott,  58  Me.  73; 
Southard  v.  Central  R.  R.  26  N.  J. 
L.  1.  And  see  Miller  v.  Levi,  44 
N.  Y.  489;  Henderson  v.  Hunter, 
59  Pa.  St.  340;  People  of  Vermont 
V.  Society,  2  Paine,  545;  Wheeler 
V.  Walker,  2  Conn.  196,  7  Am.  Dec. 
264;  Burlington  etc.  R.  Co.  v.  Colo, 
etc.  R.  Co.  38  Colo.  95,  88  P.  154. 

*  Attorney  General  v.  Merrimack 
Mfg.  Co.,  14  Gray,  586,  612,  per 
Hoar,  J.  In  the  case  from  which  this 
quotation  is  taken,  a  deed  of  a 
church  lot,  with  the  church  and  the 
parsonage  or  minister's  house 
standing  thereon,  was  made  "in 
consideration  of  one  dollar,  and  for 
the  purpose  of  supporting  divine 
worship,"  habendum  "so  long  as 
they  shall  use  or  permit  the  same  to 


be  used,  and  appropriated  to  divine 
worship,  and  for  a  residence  of  the 
minister  of  the  gospel,  and  no  long- 
er, these  being  the  whole  object  and 
intent  of  the  parties  in  this  convey- 
ance;" and  the  deed  reserved  a 
right  of  re-entry  to  the  grantors, 
upon  failure  to  comply  with  the 
"object  and  intentions  of  the  parties 
hereto,  as  above  expressed."  The 
court  held  that  the  estate  created 
was  not  a  conditional  limitation, 
but  an  estate  upon  condition,  which 
became  absolute  by  a  subsequent  re- 
lease from  the  grantors. 

5  Stearns  v.  Godfrey,  16  Me.  158. 
And  see,  also,  relating  to  this  sub- 
ject Fifty  Associates  v.  Howland, 
11  Met.  99;  Proprietors  etc.  v. 
Grant,  3  Gray,  142,  63  Am.  Dec. 
725. 


CHAP.    XXVII.]   CONDITIONS,  LIMITATIONS^  ETC.  1823 

take  advantage  of  a  breach  of  a  condition.  But  a  stranger 
may  take  advantage  of  a  limitation.^  Land  was  conveyed  to 
a  railroad  company,  to  be  occupied  by  them  for  the  use  of 
a  depot  for  passengers  and  freight,  and  other  necessary  build- 
ings for  the  accommodation  of  the  company,  and  also  for 
the  erection  of  "a  house  for  the  temporary  reception  (other 
than  a  public  house),  for  the  accommodation,  victualing,  and 
lodging  of  passengers  and  others,"  and  with  the  proviso  that 
if  the  buildings  should  be  used  for  other  purposes,  or  if  the 
grantees  should  use  any  other  building  within  one  mile  of 
the  premises  for  the  purposes  mentioned  in  the  deed,  or  should 
use  the  premises  for  an  inn  or  travern,  the  grantees  should  for- 
feit their  estate.  It  was  held  that  a  transfer  of  the  property 
by  the  grantees  to  another  corporation  under  legislative  sanc- 
tion, and  the  selling  of  refreshments,  and  occasionally  lodg- 
ing persons  in  the  depot  buildings  by  a  person  in  the  employ 
of  the  company,  did  not  constitute  a  breach  of  the  condition.' 
If  a  piece  of  land  is  conveyed  to  a  son  by  his  parents,  on  the 
former's  agreement  that  he  shall  not,  without  his  father's  con- 
sent, make  any  changes  in  the  property,  or  contract  aiay  debt 
that  might  involve  it,  and  that  after  his  father's  death  he  will 
divide  it  with  the  rest  of  the  property  among  the  father's 
other  children,  and  the  son,  without  consideration,  causes  the 
land  to  be  conveyed  to  his  wife,  who  has  "knowledge  of  the 
agreement,"  the  transaction  is  in  fact  a  deed  upon  condition 
subsequent,  and  the  son's  estate,  on  account  of  the  breach  of 
the  condition,  becomes  forfeited. *  So,  where  a  conveyance 
is  made  by  parents  to  a  son  on  the  condition  that  he  should 
support  them,  it  may,  upon  proof  of  the  breach  of  the  condi- 
tion, be  rescinded  by  a  court  of  equity.^ 

^  People  of  Vermont  v.   Society  ^  Wilson  v.  Wilson,  86  Ind.  472. 

etc.  2  Paine,  545  ;  Southard  r.  Cent-  ^  Blake    v.    Blake,    56    Wis.    392 ; 

ral  R.  R.,  26  N.  J.  L.  1.     And  see  De  Long  v.  De  Long,  56  Wis.  514. 

Owen  V.  Field,   102  Mass.  90.  In   Burlington  etc.  R.   Co.  v.  Colo. 

7  Southard  v.  Central  R.  R.  Co.,  etc.  R.  Co.,  38  Colo,  95,  88  P.  154, 

26    N.   J.    L.    (2    Dutch.)    1.  is  was  held  that  a  provision  in  a 


1824 


THE  LAW  OF  DEEDS. 


[chap.    XXVII. 


§  974a.  Election  of  remedies  between  rescission  and 
action  for  enforcement. — In  a  case  in  Indiana  it  was  held 
that  where  suit  was  commenced  to  recover  damages  for  a 
breach  of  the  condition,  the  grantor  could  not,  after  judgment 
re-enter  for  a  breach  subsequently  occurring,  as  he  was  bound 
by  the  election  of  remedies.*  But,  in  Wisconsin,  the  direct 
contrary  was  decided.  An  action  for  rescission  of  a  deed 
made  in  consideration  of  support  on  account  of  a  subsequent 
breach  will  not  be  prevented,  it  was  held,  by  the  fact  that  a 
prior  action  had  been  commenced  and  prosecuted  to  judg- 
ment to  recover  the  benefits  due  under  the  conveyance.^  The 
court,  in  the  latter  case,  stated  the  doctrine  of  election  of 
remedies  prevents  a  person  from  assuming  intentionally  in- 
consistent positions  to  his  adversary's  disadvantage  but  the 
causes  of  action  between  which  an  election  could  be  made 
must  have  existed  when  such  election  was  exercised.  This 
principle,  however,  does  not  apply  when  a  separate  cause  of 
action  accrues  subsequently  to  the  commencement  of  the 
former  action  and  is  consistent  with  the  agreement  forming 
the  basis  of  the  first  agreement.  This  view  seems  to  us 
founded  on  the  better  reason. 

§  975.     Appraisement  of  improvements. — The  fact  that 

the  grantor  is  compelled  to  pay  for  the  improvements  erected 
upon  the  land,  does  not  affect  the  question  of  whether  a  clause 
in  a  deed  is  to  be  considered  a  condition  or  a  conditional  limi- 
tation.    "No  matter  how  many  events  the  forfeiture  depends 


deed  that,  on  the  final  abandon- 
ment of  a  right  of  way  for  a  ditch, 
the  right  granted  to  maintain  such 
ditch  should  cease,  and  revert  to 
the  grantors,  should  be  construed 
as  a  limitation  and  not  as  a  condi- 
tion subsequent.  Therefore,  upon 
the  happening  of  the  event  provid- 


ed, the  control  and  use  of  the  land 
would  pass  to  the  owner  of  the  fee 
without  entry  or  claim. 

1  McWhorter  v.  Heltzell,  124  Ind. 
129,  24  N.  E.  743. 

«Gall  V.  Gall,  126  Wis.  390,  5 
L.R.A.(N.S.)  603,  105  N.  W.  953. 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS^  ETC.  1825 

upon,  nor  how  many  individuals  must  act  in  prDducitxg  rtiein, 
when  all  these  events  concur  and  coexist,  the  forfeiture  is 
effected  as  completely  as  if  it  depended  upon  the  occurrence 
of  a  single  event,  and  the  action  or  omission  of  a  single  in- 
dividual." '  A  deed  conveying  a  piece  of  land  as  a  site  for 
a  schoolhouse  contained  the  provision :  "The  conditions  of 
this  deed  are  such  that  whenever  the  within-named  premises 
shall  be  converted  to  any  other  use  than  those  named  within, 
and  the  within  grantees  shall  knowingly  persist  in  the  use 
thereof  for  any  purpose  whatever,  except  such  as  are  de- 
scribed in  said  within  deed,  the  said  grantees  forfeit  the  right, 
herein  conveyed  to  the  within-described  premises,"  upon  the 
grantor  paying  to  them  the  appraised  value  of  such  buildings 
as  may  be  erected  on  the  land.  The  court  held  that  this  pro- 
vision was  not  a  limitation,  but  a  condition  subsequent,  and 
that  the  grantee's  estate  would  remain  unaffected  until  an 
entry  by  the  grantor  or  his  heirs,  after  a  breach  of  the  condi- 
tion, and  that  the  provision  for  the  payment  of  the  appraised 
value  of  the  buildings  did  not  dispense  with  the  necessity  of 
entering  for  a  breach.* 

§  975a.  Where  the  estate  conveyed  is  less  than  the  fee. 
— Where  an  estate  in  fee  is  not  conveyed,  the  rule  that  a 
limitation  on  the  use  of  the  property  inconsistent  with  the  title 
conveyed  is  void,  does  not  apply.^  The  grantor  cannot  rescind 
a  deed,  in  consideration  of  support  for  his  life,  by  executing 
a  subsequent  conveyance  without  the  consent  of  the  grantee, 
for  the  reason  that  the  support  has  been  withheld.  He  must 
resort  to  his  action  either  for  the  value  of  the  support  with- 
held, or  to  rescind  on  equitable  grounds.^ 

'Warner    v.    Bennett,    31  Conn.  ^  Pellissier    v.    Corker,    103    CaL 

468,   476.  516. 

*  Warner    v.    Bennett,    31  Conn.  6  McCardle   v.    Kennedy,   92    Ga. 

468.  198,  44  Am.  St.  Rep.  85. 

Deeds,  Vol.  H.— 116 


1826 


THE  LAW  OF  DEEDS. 


[chap.    XXVII. 


§  976.  Parol  condition. — Aside  from  the  question  of 
the  reformation  of  a  deed  in  cases  where  clauses  have  been 
omitted  by  mistake,  it  is  certain  that  in  an  action  to  recover 
property  conveyed  by  deed  on  the  ground  that  a  condition  on 
which  it  was  made  has  not  been  performed,  the  deed  must 
speak  for  itself,  and  a  condition  cannot  be  ingrafted  upon  a 
deed  absolute  in  form  by  parol  evidence.''  The  ingrafting  of 
a  contemporaneous  condition  on  a  deed  will,  in  a  proper 
action,  be  allowed  only  on  clear  evidence  of  fraud,  accident,  or 
mistake.® 

§  977.  Effect  of  restriction. — The  property  conveyed 
may  be  restricted  to  certain  uses.  A  deed  conveyed  land  by 
metes  and  bounds,  and  at  the  close  of  the  description  con- 
tained a  clause  "conditioned"  that  no  building  or  erection  is 
ever  to  be  made  on  the  land  conveyed,  except  a  dwelling- 
house  and  outbuildings  for  the  same,  or  such  other  buildings 
as  would  not  affect  the  privileges  of  the  grantor  to  a  greater 
degree  than  would  the  erection  of  such  dwelling-house  and 
outbuildings,  and  conditioned  also  that  no  building  more  than 
a  certain  distance  beyond  the  line  of  the  grantor's  house 
should  ever  be  erected.  The  clause  containing  these  restric- 
tions was  held  to  constitute  neither  a  condition  precedent  or 
subsequent,  nor  a  covenant  that  the  grantee  would  abide  by 
its  terms,  but  that  it  was  a  part  of  the  description  of  the  estate 


'  Marshall  County  High  School 
Co.  V.  Iowa  Evangelical  Synod, 
28  Iowa,  360;  Galveston,  Harris- 
burg  etc.  Ry.  Co.  v.  Pfeuffer,  56 
Tex.  66;  Thompson  v.  Thompson, 
9  Ind.  323,  68  Am.  Dec.  638 ;  Scant- 
lin  V.  Garvin,  46  Ind.  262;  Moser 
V.  Miller,  7  Watts,  156;  Schvi^al- 
bach  V.  Chicago  M.  &  St.  P.  Ry. 
Co.,  12>  Wis.  137,  40  N.  W.  Rep. 
579;  Gadberry  v.  Sheppard,  27 
Miss.  203. 


8  East  Line  &  Red  River  R.  R. 
Co.,  V.  Garrett,  52  Tex.  133;  Mar- 
shall County  High  School  v.  Iowa 
Evangelical  Synod,  28  Iowa,  360; 
Hammond  v.  Port  Royal  etc.  Ry. 
Co.,  15  S.  C.  10;  Rogers  v.  Sebas- 
tian Co.,  21  Ark.  440;  Long  v. 
McConnell,  158  Pa.  St.  573 ;  28  Atl. 
Rep.  233;  Chapman  v.  Gordon,  29 
Ga.  250. 


h 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS^  ETC. 


1827 


conveyed,  and  showed  what  rights  passed  to  the  grantee,  and 
what  were  retained  by  the  grantor,  and  that  subsequent  pur- 
chasers from  the  grantee  could  not  erect  the  prohibited  build- 
ings.* 

§  978.  Deed  in  consideration  of  certain  agreements. — 
The  courts  will  not  construe  an  estate  to  be  upon  condition, 
if  the  language  of  the  deed  will  admit  of  any  other  reasonable 
interpretation.  Thus,  a  deed  made  in  consideration  of  a  sum 
of  money,  and  the  performance  of  certain  agreements  con- 
tained in  an  indenture  annexed  to  the  deed,  providing  for  the 
support  of  the  grantor  and  his  wife,  is  not  a  deed  upon  condi- 
tion subsequent.^  Nor  does  a  deed  to  a  town  of  land  which 
has  been  used  as  a  bur3iing-place,  "for  a  burying-place  for- 
ever," in  consideration  of  love  and  affection,  and  other  valua- 
ble considerations,  convey  an  estate  upon  a  condition  subse- 
quent.''   But  where  a  parcel  of  land  is  dedicated  by  the  original 


9  Fuller  V.  Arms,  45  Vt.  400. 
When  a  party  recovers  judgment 
for  the  permanent  injuries  sus- 
tained by  him  by  the  breach  of  re- 
strictive covenants,  a  release  from 
such  covenants  should  be  decreed : 
Amerman  v.  Deane,  132  N.  Y.  355, 
28  Am.  St.  Rep.  584. 

lAyer  v.  Emery,  14  Allen,  67. 
So  in  Van  Horn  v.  Mercer,  29  Ind. 
App.  277,  64  N.  E.  351,  it  was  held 
that  an  agreement  contemporane- 
ously executed  with  a  warranty 
deed  under  which  the  grantees  un- 
dertook to  support  the  grantors 
for  life,  etc.  and  providing  "until 
said  conditions  are  fully  complied 
with  this  agreement  shall  be  a  lien 
on  said  described  lands  in  the  full 
sum  of  $800,"  does  not  create  an 
estate  on  condition  subsequent  but 
merely  provides  a  lien  in  case  of 
the  grantee's  default. 


2  Rawson  v.  Inhabitants  of  School 
District  etc.,  7  Allen,  125,  83  Am. 
Dec.  670.  And  see  Hunt  v.  Beeson, 
18  Ind.  380.  In  the  former  case,  Mr. 
Chief  Justice  Bigelow,  in  delivering 
the  opinion  of  the  court,  said :  "We 
believe  there  is  no  authoritative 
sanction  for  the  doctrine  that  a  deed 
is  to  be  construed  as  a  grant  on  a 
condition  subsequent,  solely  for  the 
reason  that  it  contains  a  clause  de- 
claring the  purpose  for  which  it  is 
intended  the  granted  premises  shall 
be  used,  where  such  purpose  will 
not  inure  specially  to  the  benefit  of 
the  grantor  and  his  assigns,  but  is 
in  its  nature  general  and  public, 
and  where  there  are  no  other  words 
indicating  an  intent  that  the  grant 
is  to  be  void  if  the  declared  purpose 
is  not  fulfilled.  If  it  be  asked 
whether  the  law  will  give  any  force 
to  the  words  in  a  deed  which  de- 


1828 


THE  LAW  OF  DEEDS. 


[chap.    XXVII. 


proprietors  of  a  town  for  a  public  square,  the  municipal  au- 
thorities cannot  sell  the  land,  or  divert  it  to  purposes  incon- 
sistent with  those  for  which  it  was  dedicated.     The  grantor 


clares  that  the  grant  is  made  for  a 
specific  purpose,  or  to  accomplish  a 
particular  object,  the  answer  is,  that 
they  may,  if  properly  expressed, 
create  a  confidence  or  trust,  or 
amount  to  a  covenant  or  agreement 
on  the  part  of  the  grantee.  Thus, 
it  is  said  in  the  Duke  of  Norfolk's 
case,  Dyer,  138  b,  that  the  words 
ea  intentione  do  not  make  a  condi- 
tion but  a  confidence  and  trust. 
See,  also.  Parish  v.  Whitney,  3 
Gray,  516,  and  Newell  v.  Hill,  2 
Met.  180,  and  cases  cited.  But 
whether  this  be  so  or  not,  the 
absence  of  any  right  or  remedy 
in  favor  of  the  grantor  under  such 
a  grant  to  enforce  the  appropria- 
tion of  land  to  the  specific  purpose 
for  which  it  was  conveyed,  will  not 
of  itself  make  that  a  condition 
which  is  not  so  framed  as  to  war- 
rant in  law  that  interpretation.  An 
estate  cannot  be  made  defeasible 
on  a  condition  subsequent,  by  con- 
struction founded  on  an  argument 
ab  inconvenienti  only,  or  on  con- 
siderations of  supposed  hardship  or 
want  of  equity.  In  the  light  of 
these  principles  and  authorities,  we 
cannot  interpret  the  words  in  the 
deed  of  the  demandant's  ancestor, 
which  declare  that  the  premises 
were  conveyed  'for  a  burying-place 
forever,'  to  be  words  of  strict  con- 
dition. Nor  can  we  gather  from 
them  that  they  were  so  intended  by 
the  grantor.  The  grant  was  not 
purely  voluntary.  It  was  only  par- 
tially so.  It  was  not  made  solely 
in   consideration    of    the    love   and 


affection  which  the  grantor  bore 
toward  the  grantees,  but  also  'for 
divers  other  valuable  considerations, 
me  moving  hereunto.'  Previously 
to  the  time  of  the  grant,  the  prem- 
ises had  been  used  for  a  burial- 
place.  It  is  so  described  in  the  deed. 
Under  what  circumstances  this  had 
been  done  does  not  appear.  It  may 
have  been  for  a  compensation.  We 
cannot  now  know,  therefore,  that 
the  sole  cause  or  consideration 
which*  induced  the  grantor  to  con- 
vey the  estate  to  the  town  was, 
that  it  should  be  used  for  the  spe- 
cific purpose  designated  in  the  deed. 
There  can  be  no  doubt  of  the  intent 
of  the  grantor  that  the  estate 
should  always  be  used  and  appro- 
priated for  such  purpose.  This  in- 
tent is  clearly  manifested;  but  we 
search  in  vain  for  any  words  which 
indicate  an  intention  that  if  the 
grantees  omitted  so  to  use  them, 
and  actually  devoted  them  to  an- 
other purpose,  the  whole  estate 
should  thereupon  be  forfeited,  and 
revert  to  the  heirs  of  the  grantor. 
The  words  in  the  deed  are  quite 
as  consistent  with  an  intent  by  the 
grantor  to  repose  a  trust  and  con- 
fidence in  the  inhabitants  of  the 
town,  for  whom  he  declared  his 
affection  and  love,  that  they  would 
always  fulfill  the  purpose  for  which 
the  grant  was  made,  so  long  as  it 
was  reasonable  and  practicable  so 
to  do,  as  they  are  with  an  intent 
to  impose  on  them  a  condition 
which  should  compel  them,  on  pain 
of  forfeiture,  to  maintain  the  prem- 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS,  ETC.  1829 

retains  such  an  interest  in  the  land  as  will  enable  him  to  en- 
join the  diversion.^  If  a  county  buys  land  for  the  purpose  of 
erecting  on  it  a  courthouse  and  other  buildings,  and  the  deed 
contains  a  clause  stating  that  the  land  is  sold  for  that  pur- 
pose, this  clause  does  not  operate  to  limit  or  restrain  the 
power  of  alienation  by  the  county  authorities,  where  the  con- 
dition that  it  should  be  so  used  was  not  imposed  in  the  deed.* 
But  a  deed  with  the  condition  that  the  grantor  is  "to  have  a 
good  living"  out  of  the  land  conveyed  during  his  life,  and 
all  other  necessary  expenses,  and  the  residue  is  to  remain  in 
the  hands  of  the  grantee,  "that  is  to  say,  if  the  conditions 
are  fully  complied  with,"  otherwise  the  deed  is  to  become 
"null  and  void  and  of  no  effect,"  is  a  deed  on  condition,  and 
the  estate  of  the  grantee  in  case  of  default  is  subject  to  loss 
by  a  re-entry.^  If  the  consideration  for  a  deed  be  one  dol- 
lar, and  the  execution  of  an  agreement  to  give  to  the  grantor, 
during  his  life,  a  certain  portion  of  the  crop  produced  on  the 
land,  the  performance  of  this  agreement  is  a  condition  subse- 
quent.^ But  it  is  held  that  a  condition  is  not  created  by  a  pro- 
vision in  a  deed  that  the  land  shall  be  subject  to  the  main- 

ises  as  a  burial-place  for  all  time,  subject  of  the  grant  cannot  be  used 
however  inconvenient  or  imprac-  for  another,  and  that  the  grantor 
ticable  it  might  become  to  make  retains  still  such  an  interest  there- 
such  an  appropriation  of  them.  in  as  entitles  him,  in  a  court  of 
Language  so  equivocal  cannot  be  equity,  to  insist  upon  the  execution 
construed  as  a  condition  subsequent,  of  the  trust  as  originally  declared 
without  disregarding  that  cardinal  and  accepted :  Williams  v.  First 
principle  of  real  property  already  Presbyterian  Society,  1  Ohio  St. 
referred  to,  that  conditions  subse-  478;  Barclay  v.  Howell's  Lessee, 
quent  which  defeat  an  estate  are  6  Pet.  498,  8  L.  ed.  477;  Webb  v. 
not  to  be  favored  or  raised  by  in-  Moler,  8  Ohio,  548;  Brown  v.  Man- 
ference  or  implication."  See  in  ning,  6  Ohio,  298,  27  Am.  Dec.  255." 
this  connection  Thornton  v.  Nat-  *  Supervisors  Warren  Co.  v.  Pat- 
cliez,  88  Miss.  1,  41  So.  49a  terson,  56  111.   111. 

3  Warren  v.  Mayor  of  Lyons  City,  ^  Watters   v.   Bredin,   70  Pa.    St. 

22    Iowa,    351.     "Nothing    can    be  235. 

clearer,"  said  Wright,  J.,  "than  that  ^  Leach  v.  Leach,  4  Ind.  628,  58 

if  a  grant  is  made  for  a  specific,  Am.  Dec.  642. 
limited,    and    defined   purpose,    the 


1830  THE  LAW  OF  DEEDS.  [CHAP.    XXVII, 

tenance  of  the  grantor.  The  effect  of  such  an  agreement  is 
merely  to  place  a  charge  upon  the  land  which  may  be  enforced 
in  equity,'  A  municipal  corporation  acquiring  title  to  land  on 
condition,  is  subject  to  the  same  rules  as  a  private  individual. 
If  it  acquires  land  on  condition  that  upon  it,  within  a  specified 
time,  it  shall  erect  a  building  suitable  for  municipal  purposes, 
it  must,  for  a  failure  to  comply  with  the  condition,  allow  the 
land  to  return  to  the  grantor." 

§  979.  Reservations  and  exceptions. — A  reservation 
is  of  some  new  thing  issuing  out  of  what  is  granted;  an  ex- 
ception is  a  withdrawal  from  the  operation  of  the  grant  of 
some  part  of  the  thing  itself.  Says  Chancellor  Kent:  "A 
reservation  is  a  clause  in  a  deed  whereby  the  grantor  reserves 
some  new  thing  to  himself  issuing  out  of  the  thing  granted, 
and  not  in  esse  before;  but  an  exception  is  always  a  part  of 
the  thing  granted,  or  out  of  the  general  words  and  description 
in  the  grant.  It  is  repugnant  to  the  deed  and  void,  if  the  ex- 
ception be  as  large  as  the  grant  itself.  So  it  is  if  the  excepted 
part  was  specifically  granted,  as  if  a  person  grants  two  acres, 
excepting  one  of  them.  The  exception  is  good  when  the 
granting  part  of  the  deed  is  in  general  terms,  as  in  the  grant 
of  a  messuage  and  houses,  excepting  the  barn  or  dovehouse; 
or  in  the  grant  of  a  piece  of  land,  excepting  the  trees  or  woods ; 
or  in  the  grant  of  a  manor,  excepting  a  close,  ex  verho  gen- 
erali  aliquid  excipitiir.  If  the  exception  be  valid,  the  thing 
excepted  remains  with  the  grantor,  with  the  like  force  and 
effect  as  if  no  grant  had  been  made."  '     It  is  scarcely  necessary 

■^  Pownal  V.  Taylor,  10  Leigh,  172,  cited.       See,     also,     Whitaker     v. 

34  Am.   Dec.   725.  Brown,   46   Pa.   St.    197;    Craig   v. 

8  Clarke    v.    Inhabitants    of    the  Wells,    11    N.    Y.    315;    Cutler    v. 

Town   of   Brookfield,   81   Mo.   503,  Tuffts,    3    Pick.    272;    Moulton    v. 

51    Am.    Rep.    243.      And    see    St.  Trafton,  64  Me.  218;   Pynchon  v. 

Louis    V.    Wiggins'    Ferry    Co.,    IS  Stearns,  11  Met.  312,  45  Am.  Dec. 

Mo.    App.   227.  210;     Marshall     v.     Trumbull,     28 

94  Kent's    Com.   468,   and   cases  Conn.  183,  73  Am.  Dec.  667;  Ash- 


CHAP.    XXVU.]    CONDITIONS,  LIMITATIONS,,  ETC. 


1831 


to  observe  that,  as  in  any  case  of  the  creation  of  an  estate  or 
interest  in  real  property  apt  words  must  be  used  to  create 


croft  V.  Eastern  R.  R.  Co.,  126 
Mass.  196,  30  Am.  Rep.  672;  State 
V.  Wilson,  42  Me.  9;  Stackbridge 
Iron  Co.  V.  Hudson  Iron  Co.,  107 
Mass.  290;  Ives  v.  Van  Auken,  34 
Barb.  566;  Munn  v.  Worrall,  53 
N.  Y.  44,  13  Am.  Rep.  470 ;  Brewer 
V.  Hardy,  22  Pick.  Z16,  ZZ  Am. 
Dec.  747;  Doe  v.  Lock,  4  Nev.  & 
M.  807;  Winthrop  v.  Fairbanks,  41 
Me.  311;  Bridger  v.  Pierson,  1 
Lans.  481 ;  Pettee  v.  Hawes,  13 
Pick.  323 ;  Farnum  v.  Piatt,  8  Pick. 
339,  19  Am.  Dec.  330;  Leavitt  v. 
Towle,  8  N.  H.  96;  Choate  v.  Burn- 
ham,  7  Pick.  274;  Hornbeck  v. 
Westbrook,  9  Johns.  1Z\  McDaniel 
V.  Johns,  45  Miss.  632 ;  Richardson 
V.  Palmer,  38  N.  H.  212;  Rich  v. 
Zeilsdorff,  22  Wis.  544,  99  Am.  Dec. 
81;  Barnes  v.  Burt,  38  Conn.  541; 
Burr  V.  Dana,  22  Cal.  11;  Blanc  v. 
Bowman,  22  Cal.  23;  Dyer  v.  San- 
ford,  9  Met.  395,  43  Am.  Dec.  399; 
Thompson  v.  Gregory,  4  Johns.  81, 
4  Am.  Dec.  255 ;  Jackson  v.  McKen- 
ny,  3  Wend.  233,  20  Am.  Dec.  690; 
Klaer  v.  Ridgway,  86  Pa.  St.  529; 
Wiley  V.  Sidorus,  41  Iowa,  224; 
Sloan  V.  Lawrence  Furniture  Co., 
29  Ohio  St.  568 ;  Lafayette  &  Wild- 
cat Gravel  Road  Co.,  v.  Vanclain, 
92  Ind.  153;  Wall  v.  Wall,  126  N. 
C.  405,  35  S.  E.  811;  Wellraan  v. 
Churchill,  92  Me.  193,  42  Atl.  352; 
Blackman  v.  Striker,  142  N.  Y.  555, 
37  N.  E.  484;  Sirmans  v.  Lumber 
Co.,  130  Ga.  82,  60  S.  E.  267 ;  White 
V.  Marion,  139  la.  479,  117  N.  W. 
254 ;  Stone  v.  Stone,  141  Iowa,  438, 
20  L.R.A.(N.S.)  221,  119  N.  W. 
712;  Moore  v.  Griffin,  72  Kan.  164, 


83  P.  395,  4  L.R.A.(N.S.)  477;  Pit- 
cairn  v.  Harkness,  10  Cal.  App. 
295,  101  P.  809 ;  Barrett  v.  Coal  Co., 
70  Kan.  649,  79  P.  150;  Edwards 
v.  Brusha,  18  Okla.  234,  90  P.  727; 
Williams  v.  Jones,  131  Wis.  361, 
111  N.  W.  505;  Elsea  v.  Adkins, 
164  Ind.  580,  74  N.  E.  242,  108 
Am.  St.  Rep.  320;  Spencer  v.  R. 
Co.,  132  la.  129,  109  N.  W.  453; 
A  reservation  issues  from  or 
comes  out  of  the  thing  granted. 
White  v.  City  of  Marion,  139  la. 
479,  117  N.  W.  254;  Youngerman 
v.  Polk  Co.,  110  la.  731,  81  N.  W. 
166.  It  cuts  down  and  lessens  the 
thing  granted.  Hough  v.  Porter, 
51  Ore.  382,  98  P.  1083.  A  reser- 
vation is  something  taken  back 
from  the  thing  granted.  An  ex- 
ception is  some  part  of  the  estate 
not  granted.  Pritchard  v.  Lewis, 
125  Wis.  604,  1  L.R.A.(N.S.)  565, 
104  N.  W.  989.  110  Am.  St.  Rep. 
873.  In  Dyer  v.  Sanford,  9  Met. 
395,  43  Am.  Dec.  399,  Mr.  Chief 
Justice  Shaw,  in  delivering  the 
opinion  of  the  court,  on  page  404, 
says :  "As  a  proper  reservation  or 
exception,  we  think  the  principle 
stated  is  correct — that  it  must  be 
something  out  of  the  estate  granted. 
But  we  have  no  doubt  that  by  apt 
words,  even  in  a  deed-poll,  a  grant- 
or may  acquire  some  right  in  the 
estate  of  the  grantee.  It  is  not, 
however,  strictly  by  way  of  reser- 
vation, but  by  way  of  condition  or 
implied  covenant,  even  though  the 
term  'reserving'  or  'reservation'  is 
used.  If  a  grant  is  made  to  A, 
reserving    the    performance    of    a 


1832 


THE  LAW  OF  DEEDS. 


[chap.    XXVII. 


an  exception  or  a  reservation. 


Petroleum  is  included  under 
a  reservation  of  all  minerals.^  A  reservation  is  to  be  con- 
strued most  strongly  against  the  grantor.^    The  duty  of  the 


duty,  to  wit,  the  payment  of  a  sum 
of  money  to  a  third  person,  for  the 
benefit  of  the  grantor,   an  accept- 
ance of  the  grant  binds  A  to  the 
payment  of   the   money:    Goodwin 
V.  Gilbert,  9  Mass.  510.     So,  where 
a  demise  is  made  to  A,  reserving 
a  rent  in  money  or  in  service,  it  is  not 
strictly  a  reservation  out  of  the  de- 
mised premises;  but  the  acceptance 
of   it  raises   an   implied  obligation 
to  pay  the  money.     So  we  think  a 
grant  may  be  so  made  as  to  create 
a    right    in   the    grantee's    land    in 
favor  of  the  grantor.    For  instance, 
suppose  A  has  close  No.  2,  lying 
between  two  closes,  Nos.  1  and  3, 
of  B ;  and  A  grants  to  B  the  right 
to  lay  and  maintain  a  drain  from 
close  No.  1  across  his  close.  No.  2, 
thence  to  be  continued  through  his 
own  close,  No.  3,  to  its  outlet ;  and 
'A,   in  his  grant  to  B,  shouM  re- 
serve the  right  to  enter  his  drain, 
for  the  benefit  of  his  intermediate 
close,  with  the  right  and  privilege 
of   having  the  waste  water  there- 
from  pass   off   freely  through  the 
grantee's  close.  No.  3,  forever.    In 
effect,  this,  if  accepted,  would  se- 
cure to  the  grantor  a  right  in  the 
grantee's    land;    but    we    think    it 
would    inure    by    way    of    implied 
grant  or  covenant,  and  not  strictly 
as  a  reservation.     It  results  from 
the   plain   terms   of   the   contract." 
In  Cutler  v.  Tuffts,  3  Pick.  277, 
it    is    said:    "An    exception."    says 
Lord  Coke,  1  inst.  47a,  "is  ever  a 
part  of  the  thing  granted,  and  of  a 
thing  tM  esse,  as  an  acre  out  of  a 


manor;   that  is,   out  of   a  general 
a  part  may  be   excepted,   but  not 
part  of  a  certainty,  as  out  of  twen- 
ty  acres,   one.     Now,   in   the  case 
before  us,  the  thing  granted  is  cer- 
tain, that  is  a  moiety  of  a  certain 
tract  of  land;  an  exception,  there- 
fore,   of    one-half    of    this   moiety 
would  be  like  a  grant  of  twenty 
acres   excepting  one.     It  is   not   a 
reservation,   for   that   must   be   of 
some  new  right  not  in  esse  before 
the  grant,  as  of  rent,  etc.,  or  per- 
haps   of    some    pre-existing    ease- 
ment."    And  see  Corning  v.  Troy 
Iron    Co.,   40   N.   Y.   209;    Pettree 
V.  Hawes,  13  Pick.  323 ;  Richardson 
v.  Palmer.  38  N.  H.  212 ;  Hurd  v. 
Curtis,   7    Met.    110;    Whitaker   v. 
Brown,  46  Pa.  St.  197;  Bridger  v. 
Pierson,  45  N.  Y.  601 ;  Emerson  v. 
Mooney,  50  N.  H.  316;  Bowen  v. 
Conner,    6    Cush.    132;    Fancy    v. 
Scott,  2  Man.  &  R.  335 ;  Dennis  v. 
Wilson,  107  Mass.  591 ;  Greenleaf  v. 
Birth,    5    Pet.    132,    8    L.    ed.    72; 
Barber   v.    Barber,   33   Conn.   335; 
Sprague  v.  Snow,  4  Pick.  54 ;  Cros- 
by V.  Montgomery,  38  Vt.  238. 

1  Brown  v.  Sudbury,  201  Mass. 
149,  87  N.  E.  483 ;  Towns  v.  Brown 
(Ky.)  114  S.  W.  773;  Wendall  v. 
Fisher,  187  Mass.  81,  72  N.  E.  322. 

2  Dudham  v.  Kirkpatrick,  101  Pa. 
St.  36,  47  Am.  Rep.  696.  Under 
the  facts,  reservation  of  mines  and 
minerals  held  not  to  include  lime- 
stone. See  Brady  v.  Smith,  181 
N.  Y.  178,  73  N.  E.  963,  106  Am. 
St.  Rep.  531. 

8Klaer   v.   Ridgway,   86   Pa.   St 


CHAP.    XXVII,]    CONDITIONS,  LIMITATIONS^  ETC. 


1833 


court,  however,  is  to  effectuate  the  intention  of  the  grantor 
if  it  can  be  discovered,  and  a  construction  most  strongly 
against  the  grantor  will  only  be  adopted  in  cases  of  doubt 
and  as  a  last  resort.*  But  reservations  are  to  be  con- 
strued as  possessing  the  force  which  it  is  supposed  the  deed 
meant  that  they  should  possess.**  A  reservation  of  all  min- 
erals, or  of  the  right  of  mining,  must  always  respect  the  sur- 
face rights  of  support.  The  surface  is  not  to  be  destroyed 
without  some  additional  authority.^  Where  land  is  conveyed 
to  trustees  to  be  used  as  a  graveyard,  the  grantor  reserving 


529;  Wiley  v.  Sidorus,  41  Iowa, 
224;  Jackson  v.  Hudson,  3  Johns. 
375,  3  Am.  Dec.  500;  Jackson  v. 
Gardner,  8  Johns.  394.  See,  also, 
Bendikson  v.  R.  Co.,  80  Minn.  332, 
83  N.  W.  194;  Jacobs  v.  Roach 
(Ala.)  49  So.  576;  Littlejohn  v. 
R.  Co.,  219  lU.  584,  76  N.  E.  840; 
Towns  V.  Brown  (Ky.)  114  S.  W. 
73.  In  California,  however,  this 
rule  has  been  changed  by  statute. 
See  sec.  1069,  Cal.  Civil  Code,  Gard- 
ner V.  Bank,  7  Cal.  App.  106,  93 
Pac  900;  Pavkovich  v.  R.  Co.,  150 
CaL  39,  87  P.  1097.  Where  a  deed 
grants  "all  the  right,  title,  and  in- 
terest of  the  said  party  of  the  first 
part,  the  same  being  one-half  un- 
divided interest,"  the  deed  trans- 
fers all  the  title  of  the  grantor, 
and  the  previous  words  of  convey- 
ance are  not  limited  by  the  expres- 
sion "being  a  one-half  undivided  in- 
terest:"  McLennan  v.  McDonnell, 
78  Cal.  273.  Reservations  are  con- 
strued most  strongly  against  the 
grantor:  Grafton  v.  Moir,  130  N. 
Y.  465,  27  Am.  St.  Rep.  533. 
Where,  under  a  deed,  the  grantee 
is  to  hold  "during  the  term  of  her 
natural  life,  and  after  her  death  to 


revert  to  me  and  my  heirs,"  the  fee 
remains  in  the  grantor,  and  if  he 
should  die  before  the  grantor  his 
interest  may  be  sold  subject  to  the 
life  estate ;  Clark  v.  Hillis,  134  Ind. 
421 ;  34  N.  E.  Rep.  13.  Section  979 
of  the  text  was  cited  as  authority  in 
City  of  Fort  Wayne  v.  Lake  Shore 
and  Michigan  Southern  Ry.  Co.,  132 
Ind.  558,  18  L.R.A.  367,  32  Am. 
St.  Rep.  277,  where  it  was  held  that 
where  land  is  conveyed  to  a  rail- 
road company  by  a  city,  under  a 
deed  reserving  the  right  to  cross 
the  tracks  with  its  streets  when 
the  city  shall  have  made  an  addi- 
tion of  certain  land  thereto,  the 
right  cannot  be  enforced  until  it 
has  been  made  the  addition. 

4Elsea  V.  Adkins,  164  Ind.  580, 
74  N.  E.  242,  108  Am.  St.  Rep.  320. 

5  Hall  V.  Ionia,  38  Mich.  493.  That 
an  exception  is  not  void  for  re- 
pugnancy where  the  general  words 
of  a  grant  are  limited  by  an  excep- 
tion, see  Elsea  v.  Adkins,  164  Ind. 
580,  74  N.  E.  242,  108  Am.  St.  Rep. 
320. 

6  Erickson  v.  Michigan  Land  and 
Iron  Co.,  50  Mich.  604. 


1834  THE  LAW  OF  DEEDS.  [CHAP.    XXVII. 

"the  right  and  privilege  to  and   for  the  said  grantor,  and 
every  member  of  his  family  or  their  offspring,  to  mark  ofif 
within  the  boundaries  of  the  above-described  lot  one  square 
perch  of  ground  in  any  locality  thereof  where  they  may  think 
proper,  for  their  own  and  separate  use  forever  for  the  burial 
of  the  dead,"  the  privilege  reserved  is  personal  to  the  grantor 
and  his  family.    It  cannot  be  assigned  to  a  stranger.'    A  reset  - 
vation  must  be  made  to  the  grantor.     But  it  is  considered  as 
made  when  by  it  he  secures  valuable  rights,  though  others  may 
be  also  benefited.^     A  reservation  of  a  life  estate  "with  the 
absolute  control  of  the  said  real  estate,  the  same  as  if  this 
conveyance  had  not  been  made,  for  and  during  the  period  of 
the  natural  life  of  the  grantors  and  of  each  of  them"  is  not 
inconsistent  with  the  grant  of  a  remainder  in  fee.^    A  clause 
in  a  deed  following  the  description  which  reads  "saving  and 
preserving  from  the  operation  hereof  the  road  running  along 
the  southerly  line  of  said  parcels"  does  not  except  the  road 
itself  from  the  grant  but  reserves  an  easement  therein  in  the 
grantor  and  the  fee  passes  to  the  grantee.^     Where  a  sale  is 
made  of  land  with  a  reservation  of  the  trees,  the  reservation 
has  been  construed  as  referring  to  trees  then  fit  for  the  manu- 
facture of  timber.^    A  deed  expressly  reserving  and  excepting 
a  "strip  of  land  two  rods  in  width  off  the  north  side  thereof" 
plainly  imports  that  the  fee  was  intended  to  be  reserved.'    A 

'  Pearson  v.  Hartman,  100  Pa.  St.  ^  Haines  v.  Weirick,  155  Ind.  548, 

84.    And  see  Wadsworth  v.  Smith,  58  N.  E.  712,  80  Am.  St.  Rep   251. 

11   Me.  278,  26  Am.  Dec.  525.     A  See    in    this    connection    Horn    v. 

life  estate  may  be  created  by  res-  Broyles  (Tenn.)  62  S.  W.  297;  Mc- 

ervation.     Sharpe  v.  Mathews,  123  Daniel    v.    Puckett    (Tex.),    68    S. 

Ga.  794,  51   S.   E.  706;   McDonald  W.  1007. 

V.  Jarvis,  64  W.  Va.  62,  60  S.  E.  i  Bolio  v.  Marvin,  130  Mich.  82, 

990.    Likewise  other  rights  may  be  89  N.  W.  563. 

reserved  to  the  grantor,  his  heirs  ^  Huron    Land    Co.    v.    Davison, 

or  assigns.     Engel  v.  Ladewig,  153  131  Mich.  86,  90  N.  W.  1034. 

Mich.  8,  116  N.  W.  550.  '  Pritchard    v.    Lewis,   125    Wis 

8  Gay  V.  Walker,  36  Me.  54,  58 
Am.   Dec.   734. 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS,  ETC. 


1835 


grant  of  a  certain  entire  tract,  excepting  a  portion,  is  not 
executory  in  any  sense,  and  if  the  land  sought  to  be  excepted 
is  so  described  as  to  be  unascertainable,  it  is  the  exception 
that  will  fail,  and  not  the  grant,  as  the  uncertainty  affects  the 
exception  only.* 

§  980.     Construing  a  reservation  as  an  exception. — The 

terms  "exception"  and  "reservation"  are  often  used  indis- 
criminately, and  sometimes  in  a  deed  what  purports  to  be  a 
reservation  has  the  force  of  an  exception.^  Mr.  Justice  Wood- 
ward, after  reviewing  some  authorities,  says :  "Thus  it  ap- 
pears, upon  sufficient  authority,  that  words  of  reservation  may 
operate  by  way  of  exception,  and,  to  have  any  effect  must 
do  so  when  the  subject  of  the  reservation  is  not  something 


604,    1    L.R.A.(N.S.)    565,    104   N. 
W.  989,  110  Am.  St.  Rep.  873. 

4Loyd  V.  Dates,  143  Ala.  231,  38 
So.  1022,  111  Am.  St.  Rep.  39;  De 
Roach  V.  Clardy,  (Tex.)  113  S.  W. 
22. 

5  State  V.  Wilson,  42  Me.  9; 
Whitaker  v.  Brown,  46  Pa.  St.  197. 
See,  also,  Moore  v.  Griffin,  72  Kan. 
164,  83  Pac.  395,  4  L.R.A.(N.S.) 
477,  in  which  the  court  says :  "The 
modern  tendency  of  the  courts  has 
been  to  brush  aside  these  fine  dis- 
tinctions, and  look  to  the  character 
and  eflfect  of  the  provision  itself. 
Gould  V.  Howe,  131  111.  490,  23  N. 
E.  602.  While  the  distinction  be- 
tween an  exception  and  a  reserva- 
tion in  a  deed  is  well  established 
the  words  are  frequently  used  in- 
terchangeably and  synonymously." 
In  Elsea  v.  Adkins,  164  Ind.  580,  74 
N.  E.  242,  108  Am.  St.  Rep.  320,  the 
court  says :  "An  exception  is  a 
part  excepted  from  the  general 
terms  of  that  which  is  granted. 
The    words,    however,     [exception 


and  reservation]  are  often  used 
interchangeably,  and  the  mere  fact 
that  what  is  excepted  is  men- 
tioned as  being  reserved  will  not 
defeat  its  operation  as  an  excep- 
tion." Accordingly  in  that  case  it 
was  held  that  the  words  "the  grant- 
or reserves  the  ownership  of  the 
well  on  or  near  the  east  line  of 
the  lot  hereby  conveyed"  constitutes 
an  exception  from  the  property 
conveyed.  That  parol  evidence  is 
admissible  to  identify  the  subject 
matter  of  an  exception ;  see  Elsea 
V.  Adkins  supra.  In  Pritchard  v. 
Lewis,  125  Wis.  604,  1  L.R.A. 
(N.S.)  565,  104  N.  W.  989,  110  Am. 
St.  Rep.  873,  the  court  lays  down 
the  rule  that  where  the  words  are 
doubtful,  the  question  as  to  wheth- 
er they  create  an  exception  or  a 
reservation  is  one  of  intention  to 
be  determined  from  the  nature  and 
effect  of  the  provision  itself,  the 
subject  matter  and  the  situation 
of   the   parties. 


1836  THE  LAW   OF  DEEDS.  [CHAP.    XXVII. 


newly  created,  as  a  rent  or  other  interest  strictly  incorporeal, 
but  is  a  thing  corporate  and  hi  esse  when  the  grant  is  made."  ' 
For  instance,  an  owner  of  land  across  which  a  way  had  been 
laid  out  and  used  by  the  public  for  several  years  conveyed  the 
land,  "reserving  to  the  public  the  use  of  the  way  across  the 
same  from  the  county  road  to  the  river."  This  clause  was 
considered  as  creating  an  exception,  and  as  applying  to  the 
way  then  in  existence.'  Where  a  grantor  conveys  land,  "sav- 
ing and  reserving,  nevertheless,  for  his  own  use,  the  coal  con- 
tained in  the  said  piece  or  parcel  of  land,  together  with  free 
ingress  and  egress  by  wagonroad  to  haul  the  coal  therefrom 
as  wanted,"  the  clause  operates  as  an  exception,  and  the 
grantor  retains  the  entire  and  perpetual  property  in  the  coal." 
A  clause  in  a  deed  conveying  one-half  of  a  farm,  "excepting, 
however,  the  reserve  of  the  four  rows  of  apple  trees  on  the 
north  side  of  the  orchard,  with  a  suitable  passway  to  and 
from  the  same,  and  the  land  on  which  they  stand,  also  so  much 
of  the  second  growth  of  ash  timber  as  I  shall  want  for  my 
personal  use,"  creates  an  exception.^ 

§  980a.  Title  founded  on  an  exception. — There  is  no 
material  distinction  between  a  title  founded  on  an  exception 
out  of  a  grant  and  a  title  arising  from  a  direct  grant  of  the 
same  subject.^  A  parol  reservation  of  a  crop,  where  land  is 
conveyed  by  a  deed  of  warranty  containing  no  reference  to 
the  reservation,  is  void.^  An  exception  is  not  void  for  uncer- 
tainty, because  the  boundaries  of  the  land  excepted  must  be 
shown  by  evidence.^  It  is  competent  to  dissever  the  title  to 
the  surface  of  land  and  the  minerals  beneath  it,  so  that  the 

6  In  Whitaker  v.  Brown,  46  Pa.  Co.,  143  Pa.  St.  293,  13  L.R.A.  627, 
St.  197.  24  Am.  St.  Rep.  544. 

7  State  V.  Wilson,  42  Me.  9.  ^  Carter  v.  Wingard,  47  111.  App. 

8  Whitaker  v.  Brown,  46  Pa.  St.  296;  Damery  v.  Ferguson,  48  111. 
197.  App.  224. 

9  Randall  v.  Randall,  69  Me.  338.  '  Painter   v.    Pasadena   L.   &   W. 
1  Lillibridge  v.  Lackawanna  Coal       Co.,  91  Cal.  74. 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS,  ETC. 


1837 


mineral  may  become  a  separate  corporeal  hereditament,  and 
possession  of  title  to  it  will  be  attended  with  all  the  attributes 
and  incidents  pertaining  to  the  ownership  of  land.  A  grant 
of  all  the  coal  beneath  a  tract  of  land  is  an  absolute  convey- 
ance in  fee  simple  of  all  the  coal,  and  an  exception  to  the  same 
effect  in  a  grant  of  the  surface  can  give  no  greater  title.* 


§  980b.  Growing  crops  conveyed  by  deed. — A  deed  will 
convey  growing  crops  produced  by  annual  planting  and  cul- 
tivation as  a  part  of  the  real  estate  unless  a  reservation  is 
made  of  them  in  the  deed  or  in  some  other  writing  executed 
simultaneusly  with  it.^     Chancellor  Kent  says:    "If  the  land 


*Lillibridge  v.  Lackawanna  Coal 
Co.,  143  Pa.  St.  293,  13  L.R.A.  627, 

24  Am.  St.  Rep.  544.  See,  also, 
Armstrong  v.  Caldwell,  53  Pa.  St 
284;  Ryckman  v.  Gillis,  57  N.  Y. 
68,  IS  Am.  Rep.  464;  Delaware  etc. 
R.  R.  Co.  V.  Sanderson.  109  Pa. 
St.  583,  58  Am.  Rep.  743;  Hart- 
well  V.  Camman,  10  N.  J.  Eq.  128, 
64  Am.  Dec.  448 ;  City  of  Scranton 
V.  Phillips,  94  Pa.  St.  15 ;  Knight  v. 
Indiana  etc.  Co.,  47  Ind.  105;  Wil- 
liams V.  Gibson,  84  Ala.  228,  5  Am. 
St.  Rep.  368;  Arnold  v.  Stevens,  24 
Pick.  106,  35  Am.  Dec.  305;  Cald- 
well V.  Copeland,  2,7  Pa.  St.  427, 
78  Am.  Dec.  436;  Caldwell  v.  Ful- 
ton, 31  Pa.  St.  475;  72  Am.  Dec. 
760 ;  Riddle  v.  Brown,  20  Ala.  412, 
56  Am.  Dec.  402. 

5  Firebaugh  v.  Divan,  207  111.  287, 
111  111.  App.  137,  69  N.  E.  924; 
Damery  v.  Ferguson,  48  111.  App. 
224;  Tabbot  v.  Hill,  68  111.  106; 
Powell  V.  Rich,  41  111.  466;  Gar- 
anflo  V.  Cooley,  33  Kan.  137,  5  Pac. 
766;  Chapman  v.  Veach,  7>2  Kan. 
167,  4  Pac.    100;   Smith  v.   Hague, 

25  Kan.    246;    Babcock   v.   Dieter, 


30  Kan.  172,  2  Pac.  504;  Carpenter 
V.  Carpenter,  154  Mich.  100,  117  N. 
W.  598 ;  Tripp  v.  Hasceig,  20  Mich. 
254,  4  Am.  Rep.  388;  Baker  v.  Jor- 
dan, 3  Ohio  St.  438.  Chancellor  v. 
Teel,  141  Ala.  634,  37  South  665; 
Gam  V.  Conrdrey,  4  Penne  (Del.) 
143,  53  Atl.  334;  Gibbons  v.  Dilling- 
ham, 10  Ark.  9,  50  Am.  Dec.  233; 
Pelts  V.  Hendrix,  6  Ga.  452;  Chap- 
man V.  Long,  10  Ind.  465  ;  Heavilon 
V  Heavilon,  29  Ind.  509 ;  Turner  v. 
Cool,  23  Md.  56;  Newburn  v.  Lu- 
cas, 126  Iowa,  85,  101  N.  W.  730; 
Moffett  V.  Armstrong,  40  Iowa,  484 ; 
Strawhacker  v.  Ives,  114  Iowa,  661, 
87  N.  W.  669;  Hecht  v.  Dittman, 
56  Iowa,  679,  7  N.  W.  495,  10  N. 
W.  241,  41  Am.  Rep.  131;  Stan- 
brough  V.  Cook,  83  Iowa,  705,  49 
N.  W.  1010;  Downard  v.  Groff, 
40  Iowa,  597 ;  Wooton  v.  White,  90 
Md.  64,  44  Atl.  1026,  78  Am.  St. 
Rep.  425;  Bludworth  v.  Lambeth, 
9  Rob.  (La.)  256;  Baird  v.  Brown, 
28  La.  Ann.  842;  Adams  v.  Moul- 
ton,  1  McGloin  (La.)  210;  Kamm- 
rath  V.  Kidd,  89  Minn.  380,  95 
N.  W.  213,  99  Am.   St.   Rep.  603; 


1838 


THE  LAW  OF  DEEDS. 


[chap,  xxvil 


be  sold  without  any  reservation  of  the  crops  in  the  ground, 
the  law  is  strict  between  vendor  and  vendee ;  and  I  apprehend 
the  weight  of  authority  to  be  in  favor  of  the  existence  of  the 
rule  that  the  conveyance  of  the  fee  carries  with  it  whatever  is 
attached  to  the  soil,  be  it  grain  growing,  or  anything  else,  and 
that  it  leaves  exceptions  to  the  rule  to  rest  upon  reservations  to 
be  made  by  the  vendor."  ^  A  deed  was  made  in  July  by  a 
person  whose  grantor  was  in  possession  of  the  property  and 
entitled  to  continue  possession  until  the  following  March,  and 
entitled  also  to  the  crops.  The  grantee's  agent,  who  prepared 
the  deed,  stated  to  the  vendor  that  the  custom  was  for  the  gran- 
tor to  retain  the  growing  crops  when  the  deed  was  made  after 
the  first  of  July,  but  no  agreement  was  made  between  the 
vendor  and  the  grantee  as  to  the  disposition  of  the  crops  and 
the  vendor  did  not  rely  on  the  statement.  The  deed  contained 
covenants  of  warranty,  but  made  no  reservation  of  the  crops. 
In  an  action  for  breach  of  the  covenants  the  court  held  that 
while  the  agreement  made  by  the  grantee's  agent  within  the 
scope  of  his  authority  might  be  binding,  yet  as  there  was 
no  agreement,  the  grantee  was  entitled  to  maintain  the  ac- 
tion and  recover  damages.'^  In  Minnesota,  the  court  said 
that  in  that  state  the  law  is  settled  "that  growing  crops  such 
as  wheat  and  oats  are  attached  to  and  become  a  part  of  the 


Cummings  v.  Newell,  86  Minn.  130, 
90  N.  W.  311;  Erickson  v.  Pater- 
son  47  Minn.  525,  50  N.  W.  699: 
In  re  Andersens  Estate,  83  Neb.  8, 
118  N.  W.  1108,  131  Am.  St.  Rep. 
613;  Walton  v.  Jordan,  65  N.  C. 
170;  Flynt  v.  Conrad,  61  N.  C. 
190,  93  Am.  Dec.  588;  Brittain  v. 
McKay,  23  N.  C.  265,  35  Am.  Dec. 
738;  Planters'  Bank  v.  Walker,  3 
Smedes  &  M.  409;  Foote  v.  Col- 
vin,  3  Johns,  216,  3  Am.  Dec.  478; 
Terhuae  v.  Elberson,  3  N.  J.  L. 
726;  Marshall  v.  Homier,  13  Okl. 
264,  74  Pac.  368;  Engle  v.   Engle, 


3  W.  Va.  246;  Jones  v.  Adams,  37 
Or.  473,  50  L.R.A.  388,  59  Pac. 
811,  62  Pac.  16,  82  Am.  St.  Rep.  766; 
Wilkins  v.  Vashbinder,  7  Wats. 
378;  Burnside  v.  Stahler's  Admr's, 
9  Watt.  46;  Bittinger  v.  Baker,  29 
Pa.  66,  70  Am.  Dec.  154;  Pickens 
V.  Reed,  1  Swan,  80;  Crews  v.  Pen- 
dleton, 1  Leigh  297,  19  Am.  Dec. 
750;  Willis  v.  Moore,  59  Tex.  628, 
46  Am.  Rep.  284. 

6  4   Kent.    Com.   p.   468. 

7  Newburn  v.  Lucas,  126  Iowa,  85, 
101  N.  W.  730. 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS,,  ETC,  1839 

real  estate,  and  are  transferred  by  a  conveyance  of  the  land, 
unless  expressly  reserved."  ^  If  an  agreement  is  made  be- 
tween husband  and  wife  for  a  separation  and,  in  pursuance  of, 
the  agreement,  a  deed  is  executed  conveying  land  to  the  wife 
without  a  reservation  of  the  growing  crops,  the  deed  conveys 
the  crops  with  the  land  to  the  wife.^  When,  upon  an  exchange 
of  lands  deeds  are  placed  in  escrow,  they  upon  delivery  after 
performance  of  the  condition  of  the  escrow,  relate  to  the  date 
of  their  execution.  In  determining  the  rights  of  the  parties 
the  delivery  is  considered  to  have  been  made  on  that  date  and, 
consequently,  if,  when  the  deeds  are  placed  in  escrow,  pos- 
session of  one  of  the  tracts  upon  which  a  prune  crop  is  grow- 
ing is  delivered  to  one  of  the  parties  to  the  exchange,  who 
paid  the  expenses  required  to  care  for  and  gather  the  crop, 
he  becomes  the  owner  of  the  crop  and  is  entitled  to  its  pro- 
ceeds as  against  the  former  owner.*  A  person  who  has  ac- 
quired the  legal  title  to  land  but  not  its  possession  is  not  en- 
titled to  the  possession  of  a  crop  as  against  one  who  was  in 
possession  of  the  land  at  the  time  at  which  the  crop  was 
planted  and  remained  in  possession  until  it  was  matured  and 
severed.^ 

§  980c.     Reservation  of  growing  crops  by  parol. — On 

the  ground  that  parol  evidence  is  inadmissible  to  contradict  or 
alter  the  terms  of  a  written  instrument,  the  rule  announced  in 
many  cases  is  that  it  cannot  be  shown  by  parol  that  the  grant- 

SKammrath   v.    Kidd,    89    Minn.  71  Mo.  597;  Jenkins  v.  McKay,  SO 

380,  95  N.  W.  213,  99  Am.  St.  Rep.  Mo.  348.     In  Damery  v.  Ferguson, 

603.  48    111.    App.    224,    the    court    said: 

9  Carpenter     v.     Carpenter,     154  "Matured   crops,    if    severed    froin 

Mich.  100,  117  N.  W.  598.  the  soil,  become  personalty  and  do 

1  Marr  v.  Rhodes,  131  Cal.  267,  not  pass  by  a  deed,  but  crops  not 
63    Pac.   364.  severed,    whether    ripe    or    unripe 

2  Edwards  v.  Eveler,  84  Mo.  App.  pass,  we  think,  to  the  vendee  by 
405.  See,  also,  McAllister  v.  Law-  the  deed  as  being  annexed  to  and 
ler,  32  Mo.  App.  91 ;  Adams  v.  Leip,  forming   a  part   of   the   freehold." 


1840 


THE  LAW  OF  DEEDS. 


[chap.  xxvn. 


or  reserved  the  growing  crops  upon  the  land  conveyed.'  But 
in  a  number  of  cases  a  contrary  rule  is  announced.*  In  the 
first  class  of  cases  it  is  said  that  to  admit  the  reservation  by 
parol  of  growing  crops  would  be  in  direct  conflict  with  the 
rule  forbidding  the  introduction  of  parol  evidence  to  vary 
the  terms  of  a  written  instrument.^  In  the  other  class  it  is 
said  that  the  allowance  of  a  parol  reservation  of  a  growing 
crop  is  not  to  contradict  the  deed,  but  to  show  what,  in  some 
instances,  would  pass  with  the  land  as  a  part  of  the  realty 
has,  by  the  agreement  of  the  parties,  been  transformed  into 
personalty.^  If  a  vendor  executes  a  contract  for  a  gross  sum, 
containing  no  exception  of  the  growing  crops,  he  is  bound  to 
convey  the  land  with  the  crops.'  Where  a  contract  of  sale  au- 
thorizes a  real  estate  agent  to  sell  land  at  a  stipulated  price 
per  acre  without  crops  or  at  a  certain  larger  price  per  acre 
with  the  crops  included,  a  contract  of  sale  for  a  gross  sum 
which  is  in  excess  of  the  highest  sum  per  acre  required  by  the 


'  Chapman  v.  Long,  10  Ind.  465 ; 
Turner  v.  Cool,  23  Ind.  56,  85  Am. 
Dec.  449.  (But  see  the  later  cases 
in  Indiana  of  Heavilon  v.  Heavi- 
lon,  29  Ind.  509;  Harvey  v.  Million, 
67  Ind.  90)  ;  Benner  v.  Bragg,  68 
Ind.  338;  Armstrong  v.  Lawson, 
IZ  Ind.  498;  Hays  v.  Peck,  107  Ind. 
389,  8  N.  E.  274;  Gibbons  v.  Dil- 
lingham, 10  Ark.  9,  50  Am.  Dec. 
233;  VanderKarr  v.  Thompson,  19 
Mich.  82;  Adams  v.  Watkins,  103 
Mich.  431,  61  N.  W.  774;  Mcll- 
vaine  v.  Harris,  20  Mo.  457,  64 
Am.  Dec.  196;  Smith  v.  Price,  39 
111.  28,  89  Am.  Dec.  284;  Powell 
V.  Rich,  41  111.  466;  Damery  v.  Fer- 
guson, 48  111.  App.  225;  Gam  v. 
Cordrey,  4  Penn.  Del.  143,  53  Atl. 
334;  Brown  v.  Thurston,  56  Me. 
126,  96  Am.  Dec.  438;  Kammrath 
V.  Kidd,  89  Minn.  380,  99  Am.  St 
Rep.  603,  95   N.   W.  213. 


4  Baker  v.  Jordan,  3  Ohio  St. 
438;  Walton  v.  Jordan,  65  N.  C. 
170;  Kerr  v.  Hill,  27  W.  Va.  576. 
Backenstoss  v.  Stabler,  2sZ  Pa.  251, 
75  Am.  Dec.  592;  Harbold  v.  Kus- 
ter,  44  Pa.  392 ;  Kluse  v.  Sparks,  10 
Ind.  App.  444,  36  N.  E.  914,  11 
N.  E.  1047;  Heavilon  v.  Heavilon, 
29  Ind.  509;  Harvey  v.  Million,  67 
Ind.  90;  Hisey  v.  Troutman,  84  Ind. 
115;  Benner  v.  Bragg,  68  Ind.  338; 
Holt  V.  Holt,  57  Mo.  App.  272. 

5  Gibbons  v.  Dillingham,  10  Ark. 
9,  50  Am.  Dec.  233. 

6  Baker  v.  Jordan,  3  Ohio  St. 
438;  Backenstoss  v.  Stabler,  ZZ  Pa. 
251,  75  Am.  Dec.  592;  Harbold  v. 
Kuster,   44   Pa.   392. 

7Fisk  V.  Soule,  87  Cal.  313,  25 
Pac.  430. 


CHAP.    XXVII.]   CONDITIONS,  LIMITATIONS^  ETC 


1841 


contract,  is  within  the  conferred  authority,  even  though  it 
fails  to  state  whether  the  sale  includes  or  excludes  the  crops.* 
Where  the  owners  of  a  tract  of  land  conveyed  it  by  a  war- 
ranty deed  for  a  specified  consideration,  and  it  was  agreed  by 
parol  that,  as  a  part  of  the  consideration,  they  might  gather 
and  remove  a  crop  of  corn  growing  upon  the  land,  although 
the  deed  contained  no  reservation  of  this  crop,  it  was  held 
that  parol  evidence  was  admissible  to  show  the  reservation  of 
the  corn  as  a  part  of  the  consideration  for  the  deed.* 

§  981.  Reservation  by  tenants  in  common. — Where 
one  of  two  tenants  in  common  conveys  his  interest  to  a  stran- 
ger, reserving  to  himself  the  right  to  pass  and  repass  over 
the  land  to  a  woodhouse  upon  an  adjoining  lot  owned  by 
him,  the  reservation,  irrespective  of  the  question  as  to  the 
propriety  of  such  use,  is  void.  It  is  an  attempt  to  create  a 
several  limited  interest  in  land  held  in  cotenancy.*    If  a  ten- 


SFisk  V.  Soule,  87  Cal.  313,  25 
Pac.  430.  See,  also,  as  to  parol 
reservation  of  growing  crops. 
Huffman  v.  Hummer,  17  N.  J. 
Eq.  269;  Powell  v.  Rich,  41  111. 
466,  47  111.  App.  296. 

^  Grabow  v.  McCracken,  23  Okla. 
613,  23  L.R.A.(N.S.)  1218,  102  Pac. 
84.  Said  the  court:  "The  weight 
of  authority  and  reason  supports 
the  rule,  at  least  that  a  matured 
crop  of  corn  and  wheat  standing 
ungathered  upon  a  tract  of  land 
may  be  specifically  reserved  by 
parol  in  the  sale  of  the  land,  as  a 
part  of  the  contract  price  or  con- 
sideration of  the  deed." 

1  Marshall  v.  Trumbull,  28  Conn. 
183,  IZ  Am.  Dec.  667.  Said  Hin- 
man,  J :  "Now  it  is  well  settled  that 
one  tenant  in  common  can  neither 
sell  nor  encumber  any  part  of  the 
estate  by  metes  and  bounds,  so  as 
Deeds,  Vol.  H.— 116 


to  prevent  such  a  diversion  or  dis- 
tribution as  would  give  the  other 
tenants  in  common  an  unencum- 
bered title  to  the  part  thus  sold  or 
encumbered :  Griswold  v.  Johnson, 
5  Conn.  363 ;  Porter  v.  Hill,  9  Mass. 
34,  6  Am.  Dec.  22 ;  Merrill  v.  Berk- 
shire, 11  Pick.  269.  Deeds  and 
other  conveyances  of  such  property 
are  not  merely  inoperative  against 
the  rights  of  the  other  tenants  v/hen 
a  partition  is  made,  but  they  are,  as 
remarked  by  Judge  Hosmer,  un- 
doubtedly void,  and  the  other  co- 
tenants  may  at  all  times  so  treat 
them.  It  follows,  then,  that  unless 
this  reservation  or  exception  is  in 
fact  a  reservation  of  a  right  in  the 
whole  passway,  that  is,  a  reserva- 
tion of  some  aliquot  portion  of  the 
plaintiff's  interest  in  it,  it  must, 
according  to  this  principle,  be 
deemed  to  be  void.    But  the  right 


1842 


THE  LAW  OF  DEEDS. 


[chap.    XXVII 


ant  in  common  convey  all  his  estate  in  the  land  held  in  com- 
mon, a  reservation  in  such  deed  of  his  interest  in  the  mines 
upon  the  land  conveyed  is  void.^  Mr.  Chief  Justice  Shaw, 
after  speaking  of  the  rule  forbidding  one  tenant  to  convey 
a  tract  by  metes  and  bounds,  said  that  if  the  conveyance  in 
question  could  avail  against  the  other  cotenants,  the  owners 
of  the  remainder  of  the  whole  estate,  "with  all  its  incidents 
unimpaired,  with  all  its  ores  and  mines  unopened  and  unsev- 
ered,  would  be  compellable  to  divide  the  soil  or  general  es- 
tate with  one  set  of  cotenants,  and  the  mines  and  ores  with  an- 
other or  many  other  sets  of  cotenants.  Such  a  result  would 
be  attended  with  all  the  mischief  and  inconvenience  arising 
from  the  act  of  a  cotenant,  in  attempting  to  convey  his  un- 
divided part  in  a  particular  parcel,  instead  of  an  aliquot  part 
in  the  whole  common  estate.  The  same  reasons  upon  which 
it  is  held  that  such  a  conveyance  is  void  against  cotenants, 
will  also  avoid  the  act  of  a  part  owner  in  attempting  to  par- 
cel out  rights  in  their  nature  indivisible,  in  definite  portions  of 
the  inheritance,  as  the  mines  to  one  and  the  general  estate  to 
another." ' 


of  a  passway  in  or  through  a  piece 
of  land  is,  in  its  very  nature,  to  be 
exercised  upon  a  specific  part  of 
the  land,  and  it  is  impossible  to 
conceive  in  this  case  of  a  right  in 
the  plaintiff  to  pass  to  and  from 
his  woodhouse  without  interrupting 
and  infringing  upon  the  rights  of 
the  proprietor,  who  might  have  that 
portion  of  the  gangway  which  ad- 
joins the  woodhouse  aparted  and 
set  to  him.  Thus  the  effect  of  the 
attempted  reservation  of  the  pass- 
way,  if  valid,  would  be  the  same 
as  the  granting  or  deeding  to  an- 
other of  that  part  of  the  gangway 
which  does  not  adjoin  the  wood- 
house  by  metes  and  bounds,  and  re- 
taining the  other  portion,  with  the 


view  of  retaining  a  passway  to  it, 
which  would  be  but  an  attempt  to 
make  partition  without  the  co-op- 
eration of  the  other  cotenants,  and 
therefore  cannot  be  done."' 

2  Adams  v.  The  Briggs  Iron  Co., 
7  Cush.  361.  The  grantor  retains 
title  to  timber  excepted  from  the 
operation  of  a  deed,  and  he  has 
the  implied  power  to  enter,  fell, 
and  take  it  away.  The  exception 
has  the  same  effect  as  if  the  whole 
estate  had  been  conveyed,  and  the 
grantee  had  reconveyed  the  timber 
to  the  grantor:  Wait  v.  Baldwin, 
60  Mich.  622,  1  Am.  St.  Rep.  551. 

3  Adams  v.  Briggs  Iron  Co.,  7 
Cush.  361,  370. 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS,  ETC  1843 

§  982.  Reservation  to  third  person. — A  stranger  to  a 
deed  cannot  take  title  by  reservation.*  "But  it  may  operate, 
when  so  intended  by  the  parties,  as  an  exception  from  the 
thing  granted,  and  as  notice  to  the  grantee  of  adverse  claims 
as  to  the  thing  excepted  or  'reserved.'  "  ^  While  a  reserva- 
tion strictly  such  is  ineffectual  to  create  a  right  in  a  stran- 
ger, it  may  still  have  effect.  Thus  in  a  deed  with  covenants 
for  quiet  enjoyment  occurred  the  clause:  "Reserving  always 
a  right  of  way,  as  now  used,  on  the  west  side  of  the  above- 
described  premises,  for  cattle  and  carriages,  from  the  public 
highway  to  the  piece  of  land  now  owned  by"  a  certain  person. 
As  there  was  in  fact  a  right  of  way  existing,  this  clause  was 
construed  as  creating  an  exception  from  the  property  con- 
veyed.® A  reservation  is  always  in  the  grantor's  favor  and 
unless  it  contains  words  of  inheritance  or  the  same  is  implied 
it  exists  only  for  the  life  of  the  grantor.''  A  reservation  is  not 
a  part  of  the  estate  itself,  but  is  something  taken  out  of 
that  already  granted  while  an  exception  is  some  part  of  the 
estate  not  included  in  the  grant. ^  It  should  be  borne  in  mind 
that  the  general  rule  is  that  an  estate  cannot  be  created  in  a 
stranger  to  a  deed  by  a  reservation,  purely  such.' 

*West    Point   Iron   Co.    v.    Rey-  117    N.   W.   254;    Stone   v.    Stone, 

mert,  45   N.  Y.   703;   Liulefield  v.  141  Iowa,  438,  20  L.R.A.(N.S.)  221, 

Mott,    14   R.   I.   288.  119  N.   W.  712;   Hill  v.  Lord,  48 

6  West    Point   Iron   Co.    v.    Rey-  Me.   83;   Herbert   v.   Pue,   72   Md. 

mert,  45   N.  Y.  703,  per   Allen,   J.  307,  20  Atl.   182;   Murphy  v.  Lee, 

6  Bridger  v.  Pierson,  45  N.  Y.  601.  114  Mass.  371,  11  N.  E.  550;  Borst 

Text  Gal.  316.  v.    Empie,    5    N.    Y.    33;    Craig    v. 

7Engel    V.    Meyer,    85    Me.    448,  Wells,   11  N.  Y.  315;  Hornbeck  v. 

27   Atl.   352.  Sleight,  12  Johns.  199;  Maynard  v. 

8  Youngerman    v.    Polk    County,  Maynard,  4  Edw.  Ch.  711;  Stevens 
110  Iowa,  731,  81  N.  W.  166.  v.    Adams,    1    Thomp.    &    C.    587 

9  Jackson  v.  Snodgrass,  140  Ala.  Parsons  v.  Miller,  15  Wend.  561 
365,  37  South,  246;  Haverhill  Sav.  Ives  v.  Van  Auken,  34  Barb.  566 
Bank  v.  Griffin,  184  Mass.  419,  68  Eysaman  v.  Eysaman,  24  Hun,  430 
N.  E.  839;  Brace  v.  Van  Eps,  21  Logan  v.  Caldwell,  23  Mo.  372 
S.  D.  65,  109  N.  W.  147;  Kar-  Edwards  v.  Brusha,  18  Okla.  234, 
muller  v.  Krotz,  18  Iowa,  352;  90  Pac.  727;  Loungs  Petition,  11 
White  V.   Marion,    139   Iowa,   479,  R.  I.  636;  Re  Palin,  28  R.  1.  12, 


1844 


THE  LAW  OF  DEEDS. 


[chap.    XXVII. 


§  982a.  Reservation  to  stranger  as  estoppel. — While 
the  general  rule  is  that  a  reservation  cannot  be  made  to  a 
stranger  to  a  deed,  yet,  there  are  cases  in  which,  under  cer- 
tain circumstances,  such  a  reservation  or  exception  may  have 
the  effect  of  an  estoppel  or  admission  for  the  benefit  of  the 
stranger  as  against  the  grantor.*  A  clause  in  a  deed  of  a 
whole  tract  of  land,  "reserving  and  saving  from  the  effect  and 
operation  of  this  conveyance  four  square  miles  in  two  separate 
parts,  to  be  selected  and  located  by  the  parties  of  the  first 
part"  operates  as  an  exception  of  the  land  reserved.  But  an 
action  of  ejectment  cannot  be  based  upon  this  title,  unless  it 
is  shown  that  the  land  excepted  has  been  selected  and  located.^ 
While  a  reservation  in  a  deed  may  not  be  effectual  to  vest,  as 
such,  a  title  in  a  stranger  to  the  deed,  it  may  operate  as  an 
exception  to  the  grant,  when  such  is  the  intention  of  the  par- 
ties.^   If  the  owner  of  real  estate  conveys  to  a  person  certain 


65  Atl.  282;  Strasson  v.  Montgom- 
ery, 32  Wis.  52. 

1  Butler  V.  Gosling,  130  Cal.  422, 
60   Pac.   596. 

2  Butler  V.  Gosling,  130  Cal.  422, 
60  Pac.  596. 

SBurchard  v.  Walther,  58  Neb. 
539,  78  N.  W.  1061.  In  that  case  the 
clause  in  question  read :  "Said  J.  P. 
C.  Walther,  reserves  the  possession 
and  life  estate  in  the  premises 
during  the  natural  life,  and  to  his 
son  Charles  F.  Walther  after  him, 
and  to  Catherine,  wife  of  Charles 
F.  Walther,  one  third  of  said  in- 
terest during  her  life,  in  case  she 
survives  both  J.  P.  C.  Walther  and 
C.  F.  Walther."  In  a  case  in 
Michigan,  the  deed  contained  a 
clause,  by  which  the  grantor  re- 
served to  himself  and  his  daughter, 
named  in  the  deed,  an  estate  for 
the  lives  of  both.  The  court  held 
that  this  clause  operated  as  an  ex- 


ception to  the  grant  and  in  the 
opinion  said :  "The  language  here 
used  must,  we  think,  be  treated  as 
excepting  from  the  grant  the  use 
and  enjoyment  of  the  land  con- 
veyed, during  the  lives  of  both 
father  and  daughter,  as  effectually 
as  though  that  reservation  had  been 
for  a  fixed  term  of  years,  extend- 
ing beyond  the  life  of  the  father, 
and  at  the  death  of  the  father  the 
right  to  that  use  for  the  unexpired 
portion  of  the  period  must  be  held 
to  have  descended  to  the  heirs  of 
William  H.  Martin.  This  construc- 
tion gives  to  the  grantee  the  estate 
which  both  parties  to  the  instru- 
ment evidently  intended  that  he 
should  take.  It  does  not  appear 
from  the  record  that  petitioner  is 
the  sole  heir.  The  record  will  there- 
fore be  remanded,  with  directions 
to  set  aside  the  order  heretofore 
entered,    for   the   proper   determin- 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS,  ETC. 


1845 


rights  in  a  house  situated  on  the  land,  and  the  deed  is  placed 
on  record,  a  subsequent  grantee  of  the  land  is  bound  by  the 
conveyance  of  such  rights,  notwithstanding  the  deed  convey- 
ing the  property  to  him  contains  no  reservation  of  the  interest 
on  the  house.^  When  valuable  rights  in  land  are  retained  by 
the  grantor  the  fact  that  others  may  be  benefited  by  the  res- 
ervation will  not  prevent  the  reservation  from  operating  in  fa- 


ing  of  that  question,  and  the  entry 
of  an  order,  after  such  hearing,  in 
accordance  with  this  opinion." 
Martin  v.  Cook,  102  Mich.  267,  60 
N.   W.   679. 

*Bartlett  v.  Barrows,  22  R.  I. 
642,  49  Atl.  31.  It  was  urged  that 
the  clause  in  question  did  not  cre- 
ate an  exception  from  the  grant, 
and  that  it  could  not  be  supported 
as  a  reservation,  because  it  was 
not  made  in  terms  to  the  grantor 
and  reliance  was  placed  upon  the 
cases  of  Ex  parte  Young,  11  R.  I. 
636,  and  Littlefield  v.  Mott,  14  R. 
I.  288.  Referring  to  these  cases 
the  court  said :  "These  were  cases 
where  the  court  refused  to  uphold 
certain  attempted  reservations  in 
deeds  with  full  covenant  of  war- 
ranty as  not  made  to  the  grantors, 
and  as  repugnant  to  the  grant.  The 
argument  is  that  in  the  deed  from 
Walling  to  the  plaintiff  this  clause 
appears  as  a  reservation,  and,  be- 
ing to  strangers,  is  void.  But,  as 
it  reserves  or  retains  rights  which 
existed  as  against  Walling  before 
he  conveyed  to  the  plaintiff,  it  has 
the  effect  in  his  deed  of  an  excep- 
tion, and  limits  the  preceding  de- 
scription of  the  property  conveyed. 
Walling  had  previously  granted 
these  privileges  to  Mrs.  Orrell  if 
she  did  not  already  own  them.  He 
therefore  could   not   convey   to  a 


third  party  except  subject  to  them. 
If  the  clause  had  not  been  re- 
peated in  his  deed,  his  grantee 
would  have  been  equally  bound  by 
its  provisions,  as  it  was  duly  re- 
corded in  the  deed  to  Mrs.  Orrell 
before  the  deed  to  the  plaintiff  was 
recorded.  Where  ^  had  a  right 
of  way  across  A.'s  land,  and  in 
conveying  it  A.  reserved  the  right 
of  way  of  B.,  it  was  held  to  be  an 
exception  of  the  right  of  way  out 
of  the  granted  premises,  because  as 
a  reservation  to  a  stranger  it  would 
be  invalid.  Bridger  v.  Pierson,  45 
N.  Y.  601,  603;  Iron  Co.  v.  Rey- 
mert.  Id.  707,  quoted  in  Washb. 
Real  Prop.  p.  462.  Prof.  Wash- 
burn says  further  on  this  subject 
(page  461)  "Exceptions  are  often 
made  in  the  form  of  a  reservation 
where  the  thing  intended  not  to 
pass  by  deed  is  then  existing.  Thus 
the  grant  of  a  farm  'reserving  to 
the  public  the  use  of  the  road 
through  said  farm,  also  reserving 
for  W.  R.  R.  the  roadway  for  said 
road,  as  made  out,'  etc.,  was  held 
to  except  the  easement  of  the  pub- 
lic and  of  the  railroad  out  of  the 
granted  premises,  and  that  the  soil 
and  freehold  of  these  passed  by 
the  deed;  the  effect  being  to  create 
an  exception,  and  not  a  reserva- 
tion." 


1846  THE  LAW  OF  DEEDS.  [CHAP.    XXVll. 

vor  of  the  grantor.^  Where  a  person  had  a  right  of  way 
across  the  grantor's  land,  and  the  latter,  in  conveying  his 
land  to  another,  inserted  in  the  deed,  a  reservation  of^  the 
right  of  way  existing,  it  was  decided,  that,  although,  in  a 
strict  sense  a  right  of  way  could  not  be  vested  in  a  stranger  to 
the  deed  by  a  reservation  in  it,  still,  as  the  right  of  way  existed 
at  the  time  at  which  the  deed  was  made,  it  should  be  construed 
as  an  exception  from  the  property  conveyed  by  the  deed.^  A 
deed  conveying  land  contained  an  exception  of  "a  certain  lot 
of  timber  growing  and  standing  in  the  southwest  corner  of 
the  aforedescribed  quarter  section"  in  favor  of  the  grantor's 
son,  a  stranger  to  the  deed.  This  exception  was  considered 
as  an  exception  of  the  timber  rather  than  of  the  land,  and  as 
terminating  with  the  death  of  the  person  in  whose  favor  it 
was  made7 

§  983.     Reservation  of  support  in  deed  to  trustees.' — 

If  a  person  conveys  all  his  property  to  a  trustee  to  be  applied 
to  his  support  and  maintenance  during  life,  and  upon  his 
death  to  be  divided  between  his  nephews  and  nieces,  and  the 
children  of  such  as  had  died,  the  instrument  is  a  deed  and  not 
a  will.  It  vests  in  them  an  interest  which  the  maker  cannot 
recall.^     Such  an  instrument  is  not  prevented  from  taking  ef- 

6  Wall    V.   Wall,    126    N.    C.   405,  granted,     which    would    otherwise 

35   s.  E.  811.  have   passed  to  the  grantee  under 

6  Bridger  v.  Pierson,  45  N.  Y.  the  general  description."  See,  also, 
601.  Eisly  V.   Spooner,  23  Neb.  470,  36 

7  Stone  V.  Stone,  141  Iowa,  438,  N.  W.  659,  8  Am.  St.  Rep.  128; 
20  L.R.A.(N.S.)  221,  119  N.  W.  Blackman  v.  Striker,  142  N.  Y.  555, 
712.  "A  reservation"  said  the  11  N.  E.  484;  Herbert  v.  Pue,  72 
court,  "is  the  creation  in  behalf  of  Md.  307,  20  Atl.  182;  Biles  v.  Ta- 
the  grantor  of  a  new  right  issuing  coma  O.  &  G.  H.  R.  Co.,  5  Wash, 
out  of  the  thing  granted,  something  509,  32  Pac.  211. 

which    did   not    exist    as    an    inde-  »  This  section  was  cited  in  Sharp 

pendent    right    before    the    grant.  v.    Hall,   86  Ala.    110,    11    Am.    St. 

And  an  exception  is  a  clause  in  a  Rep.  28. 

deed  which  withdraws  from  its  op-  ^  McGuire  v.  Bank  of  Mobile,  42 

eration    some    part    of    the    thing  Ala.    589.      See    §    309,    ante,   ana 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS,  ETC. 


1847 


feet  until  the  maker's  death,  by  reason  of  a  reservation  for  his 
support,  comfort,  and  maintenance  during  the  term  of  his 
natural  Hfe.  A  reservation  of  this  character  is  Hmited  to  a 
specified  purpose,  and  does  not  give  the  instrument  that  am- 
bulatory quality  pertaining  to  wills.* 

§  984.     Reservation  of  plants  making  them  personal 
property. — As  between  a  vendor  and  purchaser^^a  reserva- 


notes.  See,  also,  §  854,  ante.  See, 
also,  Karchner  v.  Hoy,  151  Pa.  St. 
383 ;  Blank  v.  Kline,  155  Pa.  St.  613. 
Mistreatment  of  the  grantor  by  the 
grantee  is  sufficient  ground  for  set- 
ting aside  a  deed  made  in  con- 
sideration of  support :  Alford  v. 
Alford,   1   Tex.   Civ.   App.  245. 

1  McGuire  v.  Bank  of  Mobile,  42 
Ala.  589.  This  section  was  cited 
with  approval  in  Sharp  v.  Hall,  86 
Ala.  110,  11  Am.  St.  Rep.  28,  where 
Mr.  Chief  Justice  Stone,  in  deliver- 
ing the  opinion  of  the  court,  said: 
"A  declaration  of  trust,  by  which 
the  grantor  stipulates  to  hold  in 
trust  for  himself  during  life,  with 
remainder  to  a  donee  or  succession 
of  donees,  certainly  secures  no  use, 
enjoyment,  or  usufruct  to  the  re- 
mainderman during  the  grantor's 
life;  yet  it  is  a  deed  and  not  a 
will;  1  Bigelow's  Jarman  on  Wills, 
17,  and  notes ;  Gillham  v.  Mustin, 
42  Ala.  365.  Can  a  tangible  dis- 
tinction be  drawn  between  such  case 
and  a  direct  conveyance,  in  form  a 
deed,  by  which  A  conveys  to  B,  to 
take  effect  at  the  death  of  A?  The 
human  mind  is  not  content  with  a 
distinction  that  rests  on  no  sub- 
stantial difference.  Conveyances 
reserving  a  life  estate  to  the  grant- 
or  have   been   upheld    as   deed :   2 


Devlin  on  Deeds,  §  983 ;  Robinson 
V.  Schley,  6  Ga.  515 ;  Elmore  v. 
Mustin,  28  Ala.  309;  Hall  v.  Burk- 
ham,  59  Ala.  349.  In  Daniel  v. 
Hill,  52  Ala.  430,  436,  this  court 
said:  'A  deed  may  be  so  framed 
that  the  grantor  reserves  to  himself 
the  use  and  possession  during  his 
life,  and  on  his  death  creates  a 
remainder  in  fee  in  a  stranger.' 
"Almost  every  conceivable  form  of 
conveyance,  obligation,  or  writing 
by  which  men  attempt  to  convey, 
bind,  or  declare  the  legal  status  of 
property,  have,  even  in  courts  of 
the  highest  character,  been  ad- 
judged to  be  wills.  The  form  of 
the  instrument  stands  for  but  little 
Whenever  the  paper  contemplates 
posthumous  operation,  the  inquiry 
is,  What  was  intended?  1  Bige- 
low's Jarman  on  Wills,  20,  25; 
Habergham  v.  Vincent,  2  Ves.  Jr. 
204 ;  Jordan  v.  Jordan,  65  Ala.  301 ; 
Daniel  v.  Hill,  52  Ala.  430;  Shep- 
herd V.  Nabors,  6  Ala.  631 ;  Kinne- 
brew  V.  Kinnebrew,  35  Ala.  638. 
The  intention  of  the  maker  is  the 
controlling  inquiry,  and  that  inten- 
tion is  to  be  gathered  primarily 
from  the  language  of  the  instru- 
ment itself :  Dunn  v.  Bank,  2  Ala. 
152."    See  §  309,  ante. 


1848  THE  LAW  OF  DEEDS.  [CHAP.    XXVII. 

tion  may  make  plants  personal  property,  as  much  so  as  if  they 
had  been  taken  from  the  ground.  For  instance,  a  person  sold 
his  interest  in  land,  to  which  another  held  the  legal  title.  By 
an  agreement  in  writing  between  the  vendor  and  purchaser, 
the  former  was  allowed  a  specified  time  for  the  removal  of 
some  wine  plants  growing  upon  the  ground.  The  vendor  ver- 
bally authorized  the  holder  of  the  legal  title  to  convey  to  the 
purchaser  on  the  payment  of  a  sum  of  money,  and  this  pay- 
ment having  been  made,  the  holder  of  the  legal  title  at  the 
purchaser's  request  conveyed  the  land  to  the  latter's  wife. 
There  was  no  clause  in  this  deed  reserving  the  wine  plants, 
but  the  court  held  that  the  written  reservation  was  valid,  and 
conferred  on  the  vendor  the  right  to  remove  the  plants  with- 
in the  time  given.  This  right  was  not  affected  by  the  fact 
that  the  deed  contained  no  reservation,  as  it  was  not  executed 
by  the  vendor,  nor  did  he  give  authority  for  its  execution  with- 
out the  reservation.* 

§  985.  Right  of  way. — Two  parties  obtained  title  to 
their  respective  pieces  of  land  from  the  same  grantor.  In  the 
deed  by  which  the  land  to  one  was  conveyed  was  the  clause : 
"Said  sixteen  feet  (east)  of  said  house  to  be  kept  open  as  far 
back  as  the  south  end  of  said  house."  The  other  by  reason  of 
this  reservation  claimed  a  right  of  way,  but  it  was  decided 
that,  as  the  clause  was  applicable  to  other  matters,  such  as 
obstructing  light,  air,  or  the  view,  a  right  of  way  was  not  re- 
served.' Nor  would  evidence  be  admissible  for  the  purpose 
of  aiding  in  the  construction  of  the  deed  by  showing  that 
for  more  than  twenty  years  prior  to  the  acquisition  of  the 
title  by  the  grantor  of  these  two  parties,  that  the  way  had 
been  used.* 

2  Ring  V.  Billings,  51  Til.  475.  *  Wilder  v.  Wheeldon,  56  Vt  344. 

8  Wilder  v.  Wheeldon,  56  Vt.  344. 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS,  ETC. 


1849 


§  985a.  Right  to  pass  reserved  merely. — By  a  reserva- 
tion of  a  right  of  way  over  an  alleyway,  merely  the  right  to 
pass  through  it  is  reserved,  and  the  owner  of  the  land  may 
use  it  in  any  manner  he  wishes,  if  he  does  not  prevent  the 
reasonable  use  of  the  way  as  a  means  of  passage.^  Where  a 
right  of  way  is  reserved,  but  not  specifically  defined,  it  need 
only  be  such  as  reasonable  necessity  and  convenience  for  the 
purpose  for  which  it  was  created  demand.*  Unless  expressly 
provided  otherwise,  the  owner  may  build  over  a  right  of 
way  if  he  leaves  the  ground  unobstructed  for  a  reasonable 
height  above.  The  right  to  pass  and  repass  does  not  carry 
with  it  the  right  to  light  and  air  above  the  passageway.'  But 
where  the  deed  provides  for  a  passageway  for  light  and  air, 
always  to  be  kept  open  for  the  purposes  named,  it  conveys 
the  right  to  the  unobstructed  passage  of  light  and  air  from 
the  ground  upward.* 


6  Grafton  v.  Moir,  130  N.  Y.  465, 
27  Am.  St.  Rep.  533.  See  Kripp  v. 
Curtis,  71  Cal.  63 ;  Bodfish  v.  Bod- 
fish,  105  Mass.  319;  Stuyvesant  v. 
Woodruff,  21  N.  J.  L.  133,  47  Am. 
Dec.  156.  "  'Right  of  way,  in  its 
strict  meaning,  is  the  right  of  pas- 
sage over  another  man's  ground;' 
and  in  its  legal  and  generally  ac- 
cepted meaning  in  reference  to  a 
railway,  it  is  a  mere  easement  in 
the  land  of  others,  obtained  by  law- 
ful condemnation  to  public  use  or 
by  purchase :  Mills  on  Eminent  Do- 
main, §  110.  It  would  be  using  the 
term  in  an  unusual  sense  by  apply- 
ing it  to  an  absolute  purchase  of 
the  fee  simple  of  lands  to  be  used 
for  a  railway  or  any  other  kind  of 
way :"  Williams  v.  Western  Union 
Ry.  Co.,  SO  Wis.  76. 


6  Grafton  v.  Moir,  130  N.  Y.  465, 
27  Am.  St.  Rep.  533 ;  Bakeman  v. 
Talbot,  31  N.  Y.  366,  88  Am.  Dec. 
275;  Rexford  v.  Marquis,  7  Lans. 
249;  Tyler  v.  Cooper,  47  Hun,  94, 
124  N.  Y.  626;  Bliss  v.  Greeley,  45 
N.  Y.  671,  6  Am.  Rep.  157;  Atkins 
V.  Boardman,  2  Met.  457;  27  Am. 
Dec.  100;  Maxwell  v.  McAtee,  9  B. 
Mon.  20,  48  Am.  Dec.  409;  Mat- 
thews V.  Delaware  etc.  Canal  Co., 
20  Hun,  427 ;  Spencer  v.  Weaver, 
20  Hun,  450;  Johnson  v.  Kinnicutt, 
2  Cush.  153. 

7Gerrish  v.  Shattuck,  132  Mass. 
235 ;  Burnham  v.  Nevins,  144  Mass. 
88,  59  Am.  Rep.  61. 

8  Brooks  V.  Reynolds,  106  Mass, 
31. 


1850  THE  LAW  OF  DEEDS.  [CHAP.    XXVIl. 

§  986.  Maintenance  of  tollhouse. — In  the  conveyance 
of  a  farm  a  strip  of  land  was  reserved  until  a  gravel  road 
having  its  only  tollhouse  and  gate  there,  should  remove  its 
place  of  collecting  toll  from  the  land  conveyed.  Subsequent- 
ly the  company  owning  the  tollroad  erected  a  second  tollhouse 
and  gate  at  another  place.  It  collected  its  principal  tolls  at 
this  place,  but  still  maintained  a  tollhouse  at  the  old  place,  at 
which  only  a  trifling  amount  was  collected.  The  court  held 
in  a  suit  of  ejectment  by  a  subsequent  purchaser,  that  he 
owned  the  strip  of  land  and  was  entitled  to  its  possession. 
"Looking  to  the  substance  and  not  to  the  mere  form,"  said 
the  court,  "the  event  contemplated  by  this  language  of  the 
deed  had  occurred.  If  the  occupation  of  the  land  was  still 
beneficial,  as  a  sort  of  outpost,  for  the  purpose  of  securing 
the  collection  of  a  greater  amount  of  tolls  at  the  new  tollhouse 
than  would  probably  be  collected  there  if  the  old  one  were 
abandoned,  this  was  not  the  purpose  for  which  the  reservation 
was  made  in  said  deed.  The  use  of  the  old  house  for  other 
beneficial  purposes  than  that  of  gathering  tolls  at  that  place, 
and  the  collection  of  a  merely  nominal  amount  of  tolls  there, 
while  the  substantial  revenue  of  the  corporation  was  collected 
at  another  place,  amounted,  we  think,  to  a  change  of  the  place 
of  collecting  toll,  such  as  was  contemplated  by  said  deed."  * 

§  987.  Unincorporated  town. — As  the  inhabitants  of 
an  unincorporated  town  are  incapable  in  law  of  taking  an  es- 
tate in  fee,  a  proviso  in  a  deed  reserving  to  the  inhabitants  of 
such  a  town  the  right  to  cut  wood  on  the  lands  conveyed  when 
not  in  fence,  is  void.  Even  if  operative,  the  right  would  in- 
ure only  to  the  inhabitants  of  the  town  living  at  the  time  of 
the  grant,  as  no  words  of  perpetuity  are  contained  in  the  pro- 
viso.* 

9  Lafayette  Wildcat  Gravel  R.  R.  ^  Hornbeck     v.     Westbrook,     9 

Co.  V.  Vanclaim,  92  Ind.  153.  Johns.  7Z. 


Chap,  xxvii.]  conditions,  limitations,  etc.  1851 

'  §  988.  Passageway. — Where  a  deed  contained  the 
clause,  "reserving,  however,  a  privilege  to  pass  and  repass 
through  said  lot  of  land  to  the  outer  cellarvvay,  and  through 
said  way  and  cellar  where  it  may  do  the  least  damage,"  it 
was  held  that  the  grantor  by  this  reservation  retained  the 
right  of  passage  through  the  cellar,  even  when  there  was  no 
particular  necessity  fo^  him  to  be  there,  and  that  it  was  proper 
to  show  that  he  had  used  the  passage  through  the  cellar  in  a 
certain  manner,  without  objection  from  the  grantee,  in  order 
to  determine  what  the  reservation  intended.* 

§  989.  Construction  in  particular  cases. — A  grantor 
conveyed  land,  "excepting  and  reserving"  to  himself,  his  heirs 
and  assigns,  "a  passageway  four  feet  wide,  in,  through,  and 
pver  said  premises,"  from  a  street  by  which  the  land  was 
bounded  to  the  grantor's  house  on  an  adjoining  piece  of  land, 
and  the  way  was  subsequently  located  by  the  parties  on  the 
northerly  side  of  the  land  conveyed.  The  grantee  dug  up  the 
way,  and  began  to  build  upon  and  over  it.  It  was  held  that 
he  had  the  right  to  build  over  the  way,  if  he  placed  no  part 
of  the  building  upon  it,  and  left  it  of  a  reasonable  height,  and 
that  the  grantor  was  entitled  to  have  the  soil  of  the  way  re- 
stored to  its  former  condition.^  Land  conveyed  by  deed  was 
described  as  "all  that  piece  or  parcel  of  land  described  as  fol- 
lows, to  wit,  being  the  northeast  quarter  of  section  32,  ex- 
cept forty  acres  in  the  southeast  corner  of  said  section  32." 
The  court  held  that  the  forty  acres  excepted  did  not  pass  by 
the  deed,  and  that  any  technical  rule  of  the  common  law  in- 
consistent with  this  decision,  was  not  in  force  in  Minnesota.* 
A  deed  which  reserves  a  road  of  a  certain  width  to  be  shut 
at  each  end  by  a  bar  or  gate,  reserves  only  a  right  of  way, 

«  Choate  v.  Burnham,  7  Pick.  274.  *  Babcock  v.  Latterner,  30  Minn. 

SGerrish  v.  Shattuck,  132  Mass.  417.  See  Jackson  v.  Vickory,  1 
235.  Wend.  406,   19  Am.   Dec.  522. 


1852  THE  LAW  OF  DEEDS.  [CHAP.    XXVII. 

and  not  the  fee  of  the  land  reserved  for  a  road.'  Where 
land  is  conveyed  to  a  raih-oad  corporation  by  a  deed  contain- 
ing a  clause,  "reserving  to  myself  the  right  of  passing  and  re- 
passing, and  repairing  my  aqueduct  logs  forever,  through  a 
culvert  six  feet  wide,  and  rising  in  height  to  the  superstruc- 
ture of  the  railroad,  to  be  built  and  kept  in  repair  by  said  com- 
pany," the  clause  is  construed  as  a  reservation  and  not  an  ex- 
ception. The  grantor  has  by  it  an  estate  for  life  only.'  The 
right  of  wharfing  is  included  in  a  reservation  of  all  privileges 
around  a  lot  bounded  by  tide  water."'  A  reservation  in  the 
form,  "reserving  all  that  part  of  said  lot  which  is  now  used 
and  occupied  by  the  Iron  Mining  Company  for  railroad  or 
railway  purposes,"  is  sufficiently  definite  and  certain,  where  a 
portion  of  the  lot  was  so  occupied  at  the  time  the  deed  was 
executed."  Where  A  conveyed  land  to  B,  "reserving  all  the 
right  that  C  may  have  to  fasten  a  dam  across  said  river  and 
to  said  premises,  and  all  rights  said  C  has  in  the  same,"  this 
clause  was  held  to  create  an  exception,  and  not  a  reservation ; 
a  covenant  of  seisin  in  A's  deed  to  B  was  not  broken  by  rea- 
son of  C's  interests.'  A  clause  in  a  town  lot,  "saving  and 
excepting  the  water  privileges  of  a  stream  known  as  Trout 

*Kister  v.  Reeser,  98  Pa.  St.  1,  conveyed  the  whole  tract,  "except- 

42  Am.  Rep.  608.    See,  also,  Hagan  ing  five  lots  in  the  first  block,  and 

V.  Campbell,  8  Port.  9,  33  Am.  Dec.  second  lot  in  second  block,  south 

267.    And  see  Brown  v.  Meady,  10  of  the  railroad  and  plankroad,  as 

Me.  391,  25  Am.  Dec.  248.  the   same   shall   be   hereafter   sub- 

8  Ashcroft  V.  Eastern  R.  R.  Co.,  divided    into    village    lots    by    the 

126   Mass.    196,   30  Am.   Rep.   672.  grantee   or   his    assigns,    said    lots 

f  Parker   v.    Rogers,   8   Or.    183.  having   been   heretofore   sold,"   by 

'  Reidinger     v.     Cleveland     Iron  the  grantor.     The  exception  in  the 

Mining  Co.,  39  Mich.  30.    And  see,  deed  was  considered  not  to  be  void 

also,   Johnson   v.   Ashland  Lumber  for  uncertainty,  and  the  deed  was 

Co.,  47  Wis.  326.     In  Rockafeller  held   not   to   pass   the   title   to   the 

v.  Arlington,  91  111.  375,  an  owner  lots  previously  sold.    For  a  case  in 

of  land  had  laid  out  a  block  and  which  an  excepting  clause  was  held 

subdivided     it     into     lots,     placing  void  for  uncertainty,  see  Ditman  v. 

stones  at  the  corners  of  the  block.  Clybourn,  4  111.  App.  542. 

He   sold  two  lots,   and,   after   the  ^  Stockwell     v.     Couillard,     129 

purchaser    had    taken    possession,  Mass.  23 L 


CHAP.    XXVII.]   CONDITIONS,  LIMITATIONS,  ETC.  1853 

Brook,  to  be  carried  through  the  said  described  lot  as  afore- 
said in  a  raceway,"  does  not  confer  a  right  of  carrying  the 
waters  of  the  brook  across  the  lot  through  a  flume  erected 
upon  trestlework  of  a  height  of  several  feet.  The  only  right 
conveyed  is  that  of  carrying  the  water  through  an  artificial 
canal  in  the  earth;  the  erection  of  a  flume  may  be  restrained 
by  injunction.^  A  stipulation  that  certain  timber  excepted 
from  the  operation  of  the  deed  should  be  removed  within  a 
specified  time,  does  not  render  the  exception  conditional  on 
the  removal.^  Where  a  grantor  in  a  deed  conveying  five 
parcels  of  land  inserts  the  clause,  "possession  to  be  given  the 
said  grantee  of  the  house  and  garden  above  specified  (the  first 
parcel)  immediately,  and  one  undivided  half  of  all  the  other 
tracts  of  land  specified  above,  reserving  the  buildings  now  oc- 
cupied by  myself  at  my  decease,"  he  intends  to  reserve  to 
himself  only  the  buildings  mentioned,  and  not  a  life  estate 
in  the  undivided  half  of  the  four  parcels  of  land.'  If  a  deed 
reserves  "all  th-e  standing  wood  upon  a  lot,  together  with  the 
right  to  enter  and  remove  the  same  at  any  time  within  three 
years,"  and  there  is  nothing  in  any  other  part  of  the  deed  to 
indicate  that  the  term  "standing  wood"  is  used  in  a  limited 

1  Wilder  v.  De  Cou,  26  Minn.  10.  32  Am.  Rep.  193.     See  Perkins  v. 

A    clause,    "reserving    a    passway  Stockwell,   131   Mass.  529. 

from  the  road  aforesaid,   over  or  ^  Shannon  v.  Pratt,  131  Mass.  434. 

by  said   lot  to  the   barn   standing  Where   the   only   valuable   mineral 

on   the   adjoining    lot,    being    said  found  in  the  region  at  the  time  of 

Mary's    (the    grantor's)    dwelling-  the    conveyance    was    iron    ore,    a 

house  lot,"  creates  a  reservation  of  reservation  in  the  deed  to  the  grant- 

a   right   of   way  to   the   dwelling-  or  of  "all  mines  and  ores  of  metal 

house  lot   for   such   objects,   as    it  that  are  now  or  may  be  hereafter 

would  be  proper  to  use  a  way  to  found   on  said  land"   will   not   in- 

the  barn  appurtenant  to  the  dwell-  elude  marble  or  serpentine  deposits 

ing-house.    The  right  of  the  grantee  subsequently  discovered  :  Deer  Lake 

is  not  lost  by  the  destruction  of  the  Co.  v.  Michigan  Land  etc.   Co.,  89 

barn,  which  existed  on  the  lot  at  Mich.   180.     Where  a  store   is  re- 

the  time  of  the  reservation:  Bangs  served,    sufficient    ground   therefor 

V.   Parker,   71   Me.   458.  is  also  reserved:  Moulton  v.  Traft- 

8  Irons  V.  Webb,  41  N.  J.  L.  203,  on,  64  Me.  2ia 


1854 


^  THE  LAW  OF  DEEDS. 


[chap.    XXVII. 


sense,  trees  suitable  for  timber,  as  well  as  trees  suitable  for 
fuel,  will  be  included  in  the  reservation.* 


*Strout  V.  Harper,  72  Me.  270. 
For  other  cases  in  which  reserva- 
tions and  exceptions  have  been  con- 
strued, see  Getchell  v.  Whittemore, 
72  Me.  393;  Roberts  v.  Robertson, 
53  Vt.  690,  38  Am.  Rep.  710;  Knapp 
V.  Woolverton,  47  Mich.  292;  Al- 
den's  Appeal,  93  Pa.  St.  182 ;  Kaelle 
V.  Knecht,  99  111.  396;  Perkins  v. 
Stockwell,  131  Mass.  529;  William- 
son V.  Yingling,  80  Ind.  379;  Kuhn 
V.  Farnsworth,  69  Me.  404;  Moses 
V.  Eagle,  etc.  Mfg.  Co.,  62  Ga.  455 
Hardwick  v.  Laderoot,  39  Mich 
419;  Hartley  v.  Crawford,  81  *Pa 
St.  478;  Fisher  v.  Nelson,  8  Mo 
App.  90;  Lewis  v.  Loomis,  50  Wis 
497;  Bridger  v.  Pierson,  1  Lans 
481 ;  Hawes  v.  Louisville,  5  Bush 
667 ;  Cheney  v.  Pease,  99  Mass.  448 
Dean  v.  Colt,  99  Mass.  480;  Sargent 
V.  Hubbard,  102  Mass.  380;  Spar- 
hawk  v.  Bagg,  16  Gray,  583;  Clark 
V.  Cottrell,  42  N.  Y.  527;  Wood- 
cock v.  Estey,  43  Vt.  515 ;  Farquhar- 
son  V.  McDonald,  2  Heisk.  404; 
McDaniel  v.  Johns,  45  Miss.  632; 
Cook  V.  Wesner,  1  Cin.  249 ;  Bour- 
g-^ois  v.  Thibodaux,  23  La.  Ann.  19; 
Cottle  V.  Young,  59  Me.  105 ;  Emer- 
son V.  Mooney,  50  N.  H.  315;  Re- 
formed Church  V.  Schoolcraft,  5 
Lans.  206;  Haynes  v.  Jackson,  59 
Me.  386;  Arthur  v.  Case,  1  Paige, 
447;  Swick  v.  Sears,  1  Hill,  17; 
Ten  Brock  v.  Livingston,  1  Johns. 
357;  Leavitt  v.  Towle,  8  N.  H.  96; 
Rood  V.  Johnson,  26  Vt.  64;  Mixer 
v.  Reed,  25  Vt.  254;  Cathcart  v. 
Chandler,  5  Strob.  19;  Hay  v. 
Storrs,  Wright,  711;  Massey  v. 
Warren,    7    Jones    (N.    C.)    143; 


Whitted  V.  Smith,  2  Jones  (N.  C.) 
36;  Champlain  &  St.  Lawrence  R. 
R.  Co.  v.  Valentine,  19  Barb.  484; 
Allen  V.  Scott,  21  Pick.  25,  32  Am. 
Dec.  238;  Loomis  v.  Pingree,  43 
Me.  299;  Louk  v.  Woods,  15  111. 
256;  Blossom  v.  Ferguson,  13  Wis. 
75;  Cooney  v.  Hayes,  40  Vt.  478, 
94  Am.  Dec.  425 ;  Rich.  v.  Zeilsdorf, 

22  Wis.  544,  99  Am.  Dec.  81 ;  Ballou 
V.  Harris,  5  R.  I.  419;  Knotts  v. 
Hudrick,  12  Rich.  314;  Keeler  v. 
Wood,  30  Vt.  242;  Patterson  v. 
Patterson,  1  Hayw.  (N.  C.)  163; 
Hays  V.  Askew,  5  Jones  (N.  C), 
63;  City  of  Cincinnati  v.  Newell, 
7  Ohio  St.  37;  Shoof stall  v.  Powell, 
1  Grant  Cas.  19;  Cathcart  v.  Bow- 
man, 5  Pa.  St.  317;  Sahl  v.  Wright, 
6  Pa.  St.  433;  Johnson  v.  Zink,  52 
Barb.  396;  Rose  v.  Bunn,  21  N.  Y. 
274;  Bartlett  v.  Judd,  21  N.  Y.  200, 
78  Am.  Dec.  131 ;  Esty  v.  Currier, 
98  Mass.  500;  Hodge  v.  Boothby, 
48  Me.  68 ;  Hill  v.  Lord,  48  Me.  83 ; 
Adams  v.  Morse,  51  Me.  497;  Earle 
V.  Dawes,  3  Md.  Ch.  230;  Veall  v. 
Carpenter,  14  Gray,  126;  Cronin 
V.  Richardson,  8  Allen,  423; 
McDowell  V.  Brown,  21  Mo.  57; 
Carradine  v.  Carradine,  33  Miss. 
698;  Ward  v.  Ward,  Mart.  (N.  C.) 
28;  Evans  v.  Labaddie,  10  Mo.  426; 
Stratton  v.  Gold,  40  Miss.  778; 
Logan  V.  Caldwell,  23  Mo.  373; 
Webster  v.  Webster,  33  N.  H.  18, 
66  Am.  Dec.  705;  Turner  v.  Cool, 

23  Ind.  56,  85  Am.  Dec.  449 ;  Thurs- 
ton V.  Masterson,  9  Dana,  228; 
Howard  v.  Lincoln,  12  Me.  122; 
Tuttle  V.  Walker,  46  Me.  280; 
Brown  v.  Meady,  10  Me.  (1  Fairf.) 


CHAP.    XXVII.]    CONDITIONS,  LIMITAriONS_,  ETC. 


1855 


§  989a.  Removal  of  timber. — Although  there  is  some 
variance  of  opinion  the  general  rule  is  that  if  a  deed  contains 
a  reservation  of  standing  timber  to  be  removed  within  a  time 
mentioned  the  right  of  the  grantor  will  expire  at  the  end  of 
the  period  limited.^  This  rule  is  applicable  where  standing 
timber  is  granted  under  the  condition  that  it  shall  be  removed 
within  a  specified  time.  After  the  expiration  of  the  time 
specified,  it  is  maintained  by  the  weight  of  authority,  the  right 
of  the  grantee  ceases.^    A  reservation  in  a  deed  that  the  grant- 


391,  25  Am.  Dec.  248;  Richardson 
V.  York,  14  Me.  216;  Ballard  v. 
Butler,  30  Me.  94;  Farley  v.  Bryant, 
32  Me.  474;  Moulton  v.  Faught, 
41    Me.  298;   Cromwell   v.   Selden, 

3  N.  Y.  253;  Logan  v.  Caldwell, 
23  Mo.  Z7Z;  Thompson  v.  Gregory, 

4  Johns.  81,  4  Am.  Dec.  255 ;  Jack- 
son V.  Lawrence,  11  Johns.  191; 
Colby  V.  Colby,  28  Vt.  10;  Muller 
V.  Boggs,  25  Cal.  175;  Humphrey 
V.  Humphrey,  1  Day,  271;  Hart  v. 
Conner,  25  Conn.  331;  House  v. 
Palmer,  9  Ga.  497;  Marshall  v. 
Trumbull,  28  Conn.  183,  TZ  Am. 
Dec.  667;  Everett  v.  Dockery,  7 
Jones  (N.  C),  390;  Altman  v. 
McBride,  4  Strob.  208;  Hornback 
V.  Westbrook,  9  Johns.  7Z;  Daniel 
V.  Veal,  32  Ga.  589;  French  v. 
Carhart,  1  Comst.  (1  N.  Y.)  96; 
Bowen  v.  Conner,  6  Cush.  132; 
Burden  v.  Stein,  27  Ala.  104,  62 
Am.  Dec.  758;  Hurd  v.  Hurd,  64 
Iowa,  414 ;  King  v.  iBshop,  62  Miss. 
553;  Perkins  v.  Aldrich,  77  Me.  96; 
Foster  v.  Foss,  77  Me.  279 ;  Varner 
V.  Rice,  44  Ark.  236;  Dunn  v.  San- 
ford,  51  Conn.  443;  Dennison  v. 
Taylor,  15  Abb.  N.  C.  439. 

5  Rich  V.  Zeilsdorff,  22  Wis.  544, 
99  Am.  Dec.  81 ;  Martin  v.  Gilson, 
37  Wis.  360;  Hodges  v.  Buell,  134 


Mich.  162,  95  N.  W.  1078;  Richards 
V.  Tozer,  27  Mich.  451 ;  Monroe  v. 
Bowen,  26  Mich.  523;  Saltonstall 
V.  Little,  90  Pa.  422,  35  Am.  Rep. 
683;  Clark  v.  Guest,  54  Ohio  St. 
298,  43  N.  E.  862 ;  Perkins  v.  Stock- 
well,  131  Mass  529;  Lockeshan  v. 
Miller,  16  Ky.  L.  R.  55 ;  Adkins  v. 
Huff,  58  W.  Va.  645,  3  L.R.A. 
(N.S.)  649,  52  S.  E.  77Z. 

6  Strasson  v.  Montgomery,  32 
Wis.  52;  Golden  v.  Clock,  57  Wis. 
118,  46  Am.  Rep.  32,  15  N.  W.  703; 
Larson  v.  Cook,  85  Wis.  564,  55  N. 
W.  703 ;  Haskell  v.  Ayres,  35  Mich. 
89;  Wasey  v.  Mahoney,  55  Mich. 
194,  20  N.  W.  901 ;  Prentiss  v.  Ross, 
96  Mich.  83,  55  N.  W.  613;  Utiey 
V.  Wilcox  Lumber  Co.,  59  Mich. 
263,  26  N.  W.  488;  Macomber  v. 
Detroit  L.  &  N.  R.  Co.,  108  Mich. 
91,  32  L.R.A.  102,  62  Am.  St.  713, 
66  N.  W.  376;  Reed  v.  Merrifield, 
10  Met.  155;  Fletcher  v.  Livingston, 
153  Mass.  388.  26  N.  E.  1001 ;  Put- 
ney V.  Day  6  N.  H.  430;  Pease  v. 
Gibson,  6  Me.  81 ;  Howard  v.  Lin- 
coln, 13  Me.  122;  Webber  v.  Proc- 
tor, 89  Me.  404,  36  Atl.  631;  Jude- 
vine  V.  Goodrich,  35  Vt.  19;  Strong 
V.  Eddy,  40  Vt.  547;  Kellam  v 
McKinstry,  69  N.  Y.  264;  Sanders 
V.   Clark,  22  Iowa,  275;   Bunch  v. 


1856  THE  LAW  OF  DEEDS.  [CHAP.    XXVIL 

or  may  remove  the  timber  within  a  time  hmited  carries  with 
it  an  implied  right  to  enter  upon  the  land  for  that  pur- 
pose.'' The  time  is  not  extended  by  the  fact  that  the  grantor 
is  prevented  from  removing  the  timber  by  an  attachment  of 
his  interest,  if  the  purchaser  of  the  land  was  not  concerned  in 
securing  the  attachment.^  The  title  of  the  grantor  to  the  tim- 
ber reserved  is  not  absolute  but  is  dependent  upon  its  removal.* 
But  this  rule  is  not  universally  accepted  as  it  is  also  held  that 
such  a  reservation  is  unconditional  and  that  the  right  of  the 
grantor  to  remove  the  timber  is  not  lost  by  his  failure  to  exer- 
cise that  right  within  the  time  specified.^ 

§  990.  Restrictions  and  stipulations. — A  deed,  like  any 
other  contract,  may  contain  stipulations  and  restrictions  of 
various  kinds.  Courts  in  construing  them  will  endeavor  to 
ascertain  the  intention  of  the  parties,  and  will  give  effect  to 
such  intention  when  ascertained.  Where  a  railroad  company 
acquired,  by  a  grant  from  the  city,  the  right  and  privilege 
of  using  four  distinct  parts  of  certain  streets,  by  virtue  of 
four  distinct  paragraphs  contained  in  the  deed — in  the  last 
paragraph,  immediately  following  the  fourth  grant,  occurring 
the  limitation,  "said  right  and  privilege  to  be  enjoyed  until" 
a  specified  time,  the  restriction  was  considered  as  not  applying 

Elizabeth  City  Lumber  Co.,  134  N.  32  Am.  Rep.  193.    See  Dyer  v.  Harts- 

C.  116,  46  S.  E.  24;  Null  v.  Elliott,  horn,   IZ   N.   H.   509,  63   Atl.   231, 

52  W.  Va.  229,  43  S.  E.  173;  Mor-  holding  that  the  title  to  the  trees 

gan  V.   Perkins,  94  Ga.  353,  21   S.  reserved  is  absolute  and  that  their 

E.    574;    Broussard    v.    Verret,    43  continuance  on  the  land  after  the 

La  Ann.  929,  9  So.  905.     But,  see  time  specified  is  unlawful,  but  does 

Halstead  v.  Jessup,  150  Ind.  85,  49  not  affect  the  title.     That  grantor 

N.  E.  821 ;   Peterson  v.   Barry,  50  has  a  reasonable  time  only  in  which 

Wash.  359.  to   remove   the  timber  if   no  time 

7  Perkins  v.  Stockwell,  131  Mass.  is  specified,  see  Decker  v.  Hunt, 
529.  98  N.  Y.  Supp.  174,  11  App.  Div. 

8  Monroe  v.  Brown,  26  Mich.  523.       821.     See,  also,  Huron  Land  Co.  v. 
SAdkins  v.  Huff,  58  W.  Va.  645,       Davison,    131    Mich.  86,  90  N.  W. 

3  L.R.A.(N.S.)  649,  52  S.  E.  IZ.  1034. 

1  Irons  v.  Webb,  41  N.  J.  L.  203, 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS^  ETC. 


1857 


to  the  three  grants  first  contained  in  the  deed.^  Restrictions 
inserted  in  a  deed  as  a  part  of  a  scheme  for  a  plan  of  improve- 
ment, are  not  to  be  deemed  conditions  in  the  technical  sense, 
although  spoken  of  as  conditions.  A  forfeiture  does  not  arise 
from  their  breach.^  If  a  deed  contains  a  restriction  that  no 
building  shall  be  placed  upon  the  land  within  a  specified  dis- 
tance of  a  street,  the  street,  as  it  existed  at  the  time  of  the  im- 
position of  the  restriction,  and  not  as  subsequently  altered  by 
public  authority,  is  the  one  to  which  reference  is  considered 
to  be  made.*  Where  a  deed  conveyed  land  bounded  on  one 
side  by  a  street,  and  on  another  by  a  railroad,  and  contained 
the  clause,  ''subject  to  the  condition  that  no  building  shall  ever 
be  placed  on  that  part  of  the  same  lying  within  twenty-five 
feet  of  said  street,  and,  also,  that  the  present  occupant  of  a 
part  of  the  premises  near  said  railroad  for  a  lumberyard  shall 
be  allowed  the  time  until  October  1st,  next,  to  remove  his 
lumber  and  evacuate  the  premises,  but  no  longer  without  the 


8  Quincy  v.  Chicago,  Burlington 
etc.  R.  R.  Co.,  94  III.  537.  The 
courts  endeavor  to  ascertain  the 
intention  of  the  parties.  Hobson  v. 
Cartwright,  93  Ky.  368,  20  S.  W. 
281;  Summers  v.  Beeler,  90  Md. 
475,  48  L.R.A.  54,  45  Atl.  19;  Bag- 
nail  V.  Young,  151  Mich.  69,  114 
N.  W.  674;  Hyman  v.  Lash  (N.  J. 
Ch.),  71  Atl.  742;  Wesley  v.  Sulzer, 
224  Pa.  311,  n  Atl.  338;  Temple 
V.  Sanborn,  41  Tex.  Civ.  App.  65, 
91  S.  W.  1095;  see,  also.  Unitarian 
Ass'n  V.  Minot,  185  Mass.  589,  71 
N.  E.  551. 

3  Ayling  v.  Kramer,  133  Mass.  12. 
They  must  be  created  by  apt  words. 
McCusker  v.  Goode,  185  Mass.  607, 
71  N.  E.  16. 

*Tobey  v.  Moore,  130  Mass.  448. 
If  a  deed  contains  the  restriction 
that  the  front  wall  of  any  building 
Deeds,  Vol.  II.— 117 


erected  on  the  lot  should  be  set  back 
a  distance  of  twenty-two  feet  from 
the  street,  with  the  proviso  that 
"steps,  windows,  porticos,  and  oth- 
er usual  projections  appurtenant 
thereto  are  to  be  allowed  in  said 
reserved  space  of  twenty-two  feet," 
the  restriction  is  violated  by  the 
projection  of  the  whole  front  wall, 
except  less  than  two  feet  at  each 
end,  into  the  reserved  space,  into 
the  form  of  a  bay  extending  up  the 
whole  height  of  the  house,  with  a 
foundation,  roof,  and  windows. 
This  is  true,  notwithstanding  such 
projections  had  been  usual  in  the 
city  for  several  years,  and  that  the 
grantor  subsequently  conveyed  lots 
in  the  same  locality  permitting  such 
projections:  Linzee  v.  Mixer,  101 
Mass.  512. 


1858 


THE  LAW  OF  DEEDS. 


[chap.    XXVII. 


consent  of  said  grantee,"  both  clauses  take  effect  only  by  way 
of  restriction.  In  the  absence  of  evidence  that  the  restriction 
was  imposed  for  the  benefit  of  other  land,  it  is  construed  as 
a  personal  covenant  merely  with  the  grantor.^  If  a  deed,  in 
describing  the  lot  of  land  conveyed,  refers  to  a  plan,  this  ref- 
erence does  not  import  a  stipulation  by  the  grantor  against 
subsequently  changing  the  plan  in  any  respect,  in  parts  not 
adjacent  to  the  land  conveyed.^  A  restriction  forbidding  the 
use  of  a  building  for  the  trade  of  a  butcher,  or  for  any  "nause- 
ous or  offensive  trade  whatsoever,"  or  for  a  purpose  "which 
shall  tend  to  disturb  the  quiet  or  comfort  of  the  neighbor- 
hood," does  not  prevent  the  use  of  the  building  for  the  sale 
of  groceries  and  provisions.'  But  where  a  deed  contains  a 
restriction  that  no  building,  with  the  exception  of  a  dwelling- 
house,  shall  be  erected  on  the  lot,  and  that  such  building  when 
erected  shall  not  be  used  for  the  purpose  of  carrying  on  any 
offensive  trade  or  calling,  the  erection  of  a  building  and  the 
occupation  of  the  lower  story  as  a  retail  grocery  constitute  a 
violation  of  the  restriction.  The  use  of  the  building  in  this 
manner  may  be  restrained  by  injunction.' 


5  Skinner  v.  Shepard,  130  Mass. 
180.  Where  a  deed  contained  a  re- 
striction that  no  building  should  be 
placed  upon  the  land  within  ten 
feet  of  the  street,  the  erection  of  a 
brick  wall  six  feet  high,  with  a 
coping  one  foot  in  height,  to  be 
used  as  a  fence  or  wall  on  the  line 
of  the  street,  does  not  violate  this 
restriction :  Nowell  v.  Academy  of 
Notre  Dame,  130  Mass.  209.  For 
a  case  in  which  certain  erections 
were  held  to  be  a  violation  of  a  re- 
striction, that  the  front  line  of  the 
building  should  be  fifteen  feet  from 
the  street,  and  "that  no  dwelling- 
house  or  other  building  shall  be 
erected  on  the  rear  of  said  lot,"  see 
Sanborn    v.    Rice,    129    Mass.    387. 


As  to  the  right  of  purchaser  of 
property  under  general  plan  to  en- 
force common  building  restrictions 
against  another  purchaser  see  Judd 
V.  Robinson,  41  Colo.  222,  and  mon- 
ographic note  thereto  in  Vol.  14  A. 
&  E.  Ann.  Cas.  1021. 

6  Collidge  V.  Dexter,  129  Mass. 
167. 

'Tobey  v.  Moore,  130  Mass.  448. 

8  Dorr  V.  Harrahan,  101  Mass. 
531,  3  Am.  Rep.  398.  This  case 
differs  from  Tobey  v.  Moore,  130 
Mass.  448,  in  that  the  grantee  was 
restricted  from  erecting  anything 
but  a  dwelling-house.  See,  also, 
Linzee  v.  Mixer.  101  Mass.  512. 
For  other  cases  in  which  restric- 
tions   and    stipulations    have    been 


CHAP.    XXVII,]    CONDITIONS,  LIMITATIONS^  ETC.  1859 

§  990a.  Offensive  occupations. — A  restriction  may  be 
inserted  in  a  deed,  prohibiting  the  use  of  the  premises  for 
classes  of  business  deemed  offensive  by  the  grantor.^  The 
restriction  may  prohibit  the  carrying  on  of  any  trade  or  busi- 
ness.^ A  clause  preventing  the  carrying  on  of  certain  kinds 
of  business  may  also  exclude,  in  general  terms,  other  kinds 
of  business  as  being  offensive,  which  are  not,  strictly  speaking, 
nuisances.  Thus,  the  owner  of  several  adjoining  lots  inserted 
a  stipulation  in  the  deeds  when  selling  them  to  the  purchasers, 
"for  themselves,  and  their  representatives,  heirs,  and  assigns, 
owners  of  any  of  the  said  lots  above  described,  that  no  build- 
ings other  than  dwelling-houses,  at  least  two  stories  high,  of 
brick  or  stone,  or  churches,  chapels,  or  private  stables,  of  the 
same  material,  shall  be  erected  on  any  of  said  lots;  that  no 
livery  or  other  stable  shall  be  erected  on  lots  fronting  on  Madi- 
son Avenue,  and  that  there  shall  not  be  allowed,  or  erected  on 
any  part  of  said  lots  of  land,  any  tenement  house,  brewery,  or 
lager  beer  saloon,  tavern,  slaughterhouse,  forge,  furnace, 
steam  engine  foundry,  carpenter's  or  carriage  or  car  shop, 
manufactory  of  metals,  gunpowder,  glue,  varnish,  vitriol,  tur- 
pentine, ink  or  matches,  or  any  distillery,  or  any  establish- 
ment for  dressing  hides,  skins  or  leather  or  any  museum,  the- 
ater, circus,  or  menagerie,  nor  shall  any  other  buildings  be 

construed,  see  Higman  v.  Stewart,  Ch.    D.   74;    Brouwer  v.   Jones,   23 

38  Mich.  513;  Chapman  v.  Gordon,  Barb.    153;    Bramwell  v.  Lacey,   10 

29  Ga.  250;  Hicks  v.  McGarry,  38  Ch.  D.  691;  Gannett  v.  Albree.  103 

Mich.  667;  Scott  v.  Ward,   13  Cal.  Mass.    ?)12\    Morris   v.    Tuskaloosa 

458;  Beals  v.  Case,  138  Mass.  138;  Mfg.  Co.,  83  Ala.  565;  Winnipesau- 

Thompson's    Appeal,    101    Pa.    St.  kee  Camp  Meeting  Assn.  v.  Gordon, 

225;  Barker  v.  Barrows,  138  Mass.  (^Z  N.  W.  505.     See,  also.  Bacon  v. 

578.  Sanvlberg,  179  Mass.  396,  60  N.  E. 

9  Barrow  v.  Richard,  8  Paige,  351,  936;  Fink  v.  Hughes,  133  Mich.  63. 

35  Am.  Dec.  713;  Whitney  V.  Union  94    N.    W.    601;    United    States   v. 

Rv.  Co.,  11  Gray,  359,  71  Am.  Dec.  Certain    Lands    in    Jamestown,    112 

715 ;    Cross    v.    Frost,   64   Vt.    179;  F.  622. 

Rowland   v.    Miller,    139  N.   Y.  93,  i  Trustees  v.  Thacher,  87   N.   Y. 

22  L.R.A.   182;  Dorr  v.  Harrahan,  311;  41  Am.  Rep.  365. 
101    Mass.   531;   Hall.   v.   Ervin,  11 


1860 


THE  LAW  OF  DEEDS. 


[chap.   XXVIL 


erected,  or  trade  or  business  carried  on  upon  said  lots  which 
shall  be  injurious  or  offensive  to  the  neighboring  inhabitants; 
it  being  expressly  agreed  that  this  covenant  runs  with  the  land, 
and  is  binding  on  all  future  owners  thereof."  A  corporation, 
whose  business  was  that  of  undertakers,  had  leased  a  build- 
ing upon  one  of  the  lots  formerly  occupied  as  a  dwelling- 
house,  and  had  fitted  it  up  and  was  using  it  for  the  reception 
of  dead  human  bodies,  their  preparation  for  burial,  the  holding 
of  autopsies,  and  for  such  other  purposes  as  were  incident  to 
their  business  as  undertakers.  The  owner  of  one  of  the  lots 
sold  brought  an  action  to  restrain  the  violation  of  the  agree- 
ment, and  the  court  held  that  the  business  was  an  offensive 
one  within  the  meai?Mig  of  the  agreement,  and  that  the  court 
could  take  judicial  notice  of  its  nature,  and  hence  granted  an 
injunction.^     But  where  a  deed  prohibits  the  carrying  on  of 


2  Rowland  v.  Miller,  139  N.  Y.  93, 
22  L.R.A.  182,  34  N.  E.  Rep.  765. 
Mr.  Justice  Earl,  in  delivering  the 
opinion  of  the  court,  said  that  it 
would  be  too  narrow  a  construction 
to  hold  that  the  agreement  pro- 
hibited only  trades  or  kinds  of  busi- 
ness which  are  nuisances  per  se, 
and  continued:  "This  clause  in 
the  agreement  must  have  a  reason- 
able construction.  We  cannot  sup- 
pose that  the  parties  had  in  mind 
any  business  which  might  be  of- 
fensive to  a  person  of  a  supersensi- 
tive organization,  or  to  one  of  a 
peculiar  and  abnormal  temperament, 
or  to  the  small  class  of  persons  who 
are  generally  annoyed  by  sights, 
sounds,  and  objects  not  offensive 
to  other  people.  They  undoubted- 
ly had  in  mind  ordinary,  normal 
people,  and  meant  to  prohibit  trades 
and  business  which  would  be  offen- 
:Avt  to  people  generally,  and  would 
chus    render    the    neighborhood    to 


such  people  undesirable  as  a  place 
of  residence.  It  cannot  be  doubted 
that  the  business  of  the  Taylor 
Company  was,  within  this  defini- 
tion, offensive  to  the  neighboring 
residents.  People  of  ordinary  sensi- 
bilities would  not  willingly  live  next 
to  a  lot  upon  which  such  a  business 
is  carried  on.  Any  ordinary  person 
desiring  to  rent  such  a  house  as 
plaintiff's,  would  not  take  her  house 
if  he  could  get  one  just  like  it,  at 
the  same  rent,  at  some  other  suit- 
able and  convenient  place.  Indeed, 
her  house  would  be  shunned  by 
people  generally,  who  could  afford 
to  live  in  such  an  expensive  house. 
The  courts  can  take  judicial  notice 
of  the  offensive  character  of  such 
a  business.  Judges  must  be  sup- 
posed to  be  acquainted  with  the 
ordinary  sentiments,  feelings,  and 
sensibilities  of  the  people  among 
whom  they  live,  and  hence,  in  this 
case,  the  learned  judge,   after  the 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS^  ETC.  1861 

"any  nauseous  or  offensive  business  whatever,"  it  is  mainly 
a  question  of  fact  whether  the  erection  of  a  stable  comes  with- 
in the  language  of  the  restriction.'  A  deed  contained  a  cove- 
nant against  using  the  premises  for  certain  specified  busi- 
nesses, and  concluded  with  the  general  clause,  "or  any  other 
manufactory,  trade,  or  business  whatsoever  which  should  or 
might  be  offensive  to  the  neighboring  inhabitants."  It  was 
considered  that  carrying  on  the  business  of  a  coal  yard  was 
prohibited  by  this  restriction.*  So,  also,  the  contemplated 
erection  of  an  automobile  garage  has  been  held  to  be  in  vio- 
lation of  a  restriction  that  no  building  shall  be  used  or  occu- 
pied offensive  to  the  neighborhood  for  dwelling  houses.*^  But 
it  is  said  that  an  apartment  house  is  not  a  building  offensive 
to  the  neighborhood.* 

§  990b.  Building  lines. — It  is  a  common  practice  to 
insert  in  deeds  a  restriction  that  buildings  that  may  be  erect- 
ed shall  be  distant  a  specified  space  from  the  front  line  of  the 
lot,  and  such  restrictions  are  valid-.  The  grantee  under  such 
a  deed  does  not  acquire  an  absolute  and  unqualified  title,  but 
it  is  a  part  of  the  title  which  he  accepts,  that  the  use  of  the 
land  shall  be  limited  and  restricted  as  provided  by  the  deed.^ 

character   of   the  business   carried  Thacher,  87  N.  Y.  311,  41  Am.  Rep. 

on    by    the    Taylor    Company    had  365. 

been  proved,  could  have  found,  as  ^a  Evans  v.  Foss,  194  Mass.  513, 

a  matter  of  law,  that  it  was  a  vio-  9  L.R.A.(N.S.)    1039,   11   A.  &  E. 

lation  of  the  restriction  agreement  Ann.  Cas.  171, 

without  any  further  proof."  ^  Kitching  v.    Brown,    180   N.   Y. 

3  Whitney  v.  Union  Railway  Co.,  414,  70  L.R.A.  742,  IZ  N.  E.  241. 
11  Gray,  359,  71  Am.  Dec.  715.  6  Reardon  v.  Murphy,  163  Mass. 

4  Barrow  v.  Richard,  8  Paige,  351,  501;  Payson  v.  Burnham,  141  Mass. 
35  Am.  Dec.  713.  Where  the  con-  547;  Linzee  v.  Mixer,  101  Mass. 
ditions  have  changed  so  that  the  512;  Hamlen  v.  Werner,  144  Mass. 
enforcement  of  the  restriction  396;  Bagnall  v.  Davies,  140  Mass. 
would  no  longer  be  of  benefit  to  the  76 ;  Peck  v.  Conway,  119  Mass.  546 ; 
person  in  whose  favor  it  was  made,  Attorney  General  v.  Algonquin 
the  courts  may  refuse  to  enforce  it :  Club,  155  Mass.  128;  Sanborn  v. 
Trustees    of    Columbia    College   v.  Rice,  129  Mass.  387;  Attorney  Gen- 


1862 


THE  LAW  OF  DEEDS. 


[chap.    XXVII. 


"It  often  happens,"  says  Mr.  Justice  Sotile,  "that  owners  of 
land,  which  they  design  to  put  into  market  lots  for  dwelling- _ 
houses,  insert  in  the  deeds  of  the  several  lots  a  uniform  set  of 
restrictions  as  to  the  purposes  for  which  the  land  may  be 
used,  and  as  to  the  portions  of  it  which  nxiy  be  covered  by 
buildings.  So  far  as  these  restrictions  are  reasonable  in  their 
character,  they  are  upheld  and  enforced  by  courts  of  equity 
in  favor  of  the  original  owner,  so  long  as  he  continues  to  own 
any  part  of  the  tract  for  the  benefit  of  which  tlie  restrictions 
were  created,  as  well  as  in  favor  of  the  owner  of  any  one  of 
the  lots  into  which  the  tract  was  divided,  and  against  the  own- 
er of  any  of  the  lots  who  attempts  to  set.  the  restriction  at 
naught."  "^  Where  the  owners  of  a  tract  of  land  lay  it  out  into 
house  lots,  and  agree  among  themselves  orally  that  the  lots 
shall  be  occupied  exclusively  for  dwelling-houses,  and  in  the 
deed  executed  by  them  insert  a  clause  that  no  buildings  shall 
be  erected  on  the  lots  except  for  dwelling-houses  only,  the 
grantee  is  bound  by  the  condition,  and  he  may  be  prevented 
by  the  purchasers  of  others  of  the  lots  from  converting  a 
dwelling-house  upon  his  lot  into  a  public  eating-house.*     Re- 


eral  v.  Williams,  140  Mass.  329; 
54  Am.  Rep.  568;  Attorney  Gen- 
eral V.  Gardiner,  117  Mass.  492. 
The  character,  use  and  location  of 
buildings  may  be  restricted  by  con- 
ditions, restrictions  and  covenants. 
See  Quatman  v.  McCray,  128  Cal. 
285,  60  Pac.  855 ;  Frink  v.  Hughes, 
133  Mich.  63,  94  N.  W.  601 ;  Ewers- 
ten  V.  Gerstenberg,  186  111.  344,  51 
L.R.A.  310,  57  N.  E.  1051.  In  re 
Welsh,  175  Mass.  68,  55  N.  E.  1043 ; 
Best  V.  Nagle,  182  Mass.  495,  65 
N.  E.  842;  Sutcliffe  v.  Eisele,  62 
N.  J.  Eq.  222,  50  Atl.  69. 

7  Sanborn  v.  Rice,  129  Mass.  396. 

8  Parker  v.  Nightingale,  6  Allen, 
341,  83  Am.  Dec.  632.  Said  Mr. 
Chief  Justice  Bigelow :     "A  court 


of  chancery  will  recognize  and  en- 
force agreements  concerning  the 
occupation  and  mode  of  use  of 
real  estate,  although  they  are  not 
expressed  with  technical  accuracy, 
as  exceptions  or  reservations  out  of 
a  grant  not  binding  as  covenants 
real  running  with  the  land.  Nor  is 
it  at  all  material  that  such  stipula- 
tions should  be  binding  at  law,  or 
that  any  privity  of  estate  should 
subsist  between  parties,  in  order  to 
render  them  obligatory,  and  to  war- 
rant equitable  relief  in  case  of  their 
infraction.  A  covenant,  though  in 
gross  at  law,  may,  nevertheless  be 
binding  in  equity,  even  to  the  ex- 
tent of  fastening  a  servitude  or 
easement    on    real   property,   or   of 


Chap,  xxvii.]  conditions,  limitations,  etc. 


186.1 


strictions  are  also  frequently  inserted  in  deeds  prohibiting  the 
erection  of  buildings  beyond  a  certain  height,  and  such  restric- 
tions are  valid.^ 


§  990c.     Extension   of   room,    window,    or   piazza. — A 

restriction  prohibiting  the  erection  of  a  building  within  a  speci- 


securing  to  the  owner  of  one  parcel 
of  land  a  privilege,  or,  as  it  is  some- 
times called,  a  right  to  an  amenity, 
in  the  use  of  an  adjoining  parcel, 
by  which  his  own  estate  may  be 
enhanced  in  value,  or  rendered 
more  agreeable  as  a  place  of  resi- 
dence. Restrictions  and  limitations 
which  may  be  put  on  property  by 
means  of  such  stipulations,  derive 
their  validity  from  the  right  which 
every  owner  of  the  fee  has  to  dis- 
pose of  his  estate,  either  absolutely 
or  by  a  qualified  grant,  or  to  regu- 
late the  manner  in  which  it  shall  be 
used  and  occupied.  So  long  as  he 
retains  the  title  in  himself,  his 
covenants  and  agreements  respect- 
ing the  use  and  enjoyment  of  his 
estate  will  be  binding  on  him  per- 
sonall3^  and  can  be  specificallj'  en- 
forced in  equity.  When  he  disposes 
of  it  by  grant  or  otherwise,  those 
who  take  under  him  cannot  equit- 
ably refuse  to  fulfill  stipulations 
concerning  the  premises  of  which 
they  had  notice.  It  is  upon  this 
ground  that  courts  of  equity  will 
afford  relief  to  parties  aggrieved 
by  the  neglect  or  omission  to  com- 
ply with  agreements  respecting  real 
estate  after  it  has  passed  by  mesne 
conveyances  out  of  the  hands  of 
those  who  were  parties  to  the  or- 
iginal contract.  A  purchaser  of 
land,  with  notice  of  a  right  or 
interest  in  it  existing  only  by  agree- 
ment with  his  vendor,  is  bound  to 


do  that  which  his  grantor  had 
agreed  to  perform,  because  it  would 
be  unconscientious  and  inequitable 
for  him  to  violate  or  disregard  the 
valid  agreements  of  the  vendor  in 
regard  to  the  estate,  of  which  he 
had  notice  when  he  became  the  pur- 
chaser. In  such  cases,  it  is  true 
that  the  aggrieved  party  can  often 
have  no  remedy  at  law.  There  may 
be  neither  privity  of  estate,  nor 
privity  of  contract,  between  himself 
and  those  who  attempt  to  appro- 
priate property  in  contravention  of 
the  use  or  mode  of  enjoyment  im- 
pressed upon  it  by  the  agreement  of 
their  grantor,  and  with  notice  of 
which  they  took  the  estate  from 
him.  But  it  is  none  the  less  con- 
trary to  equity  that  those  to  whom 
the  estate  comes,  with  notice  of  the 
rights  of  another  respecting  it, 
should  wilfully  disregard  them,  and, 
in  the  absence  of  any  remedy  at  law, 
the  stronger  is  the  necessity  for  af- 
fording such  cases  equitable  relief, 
if  it  can  be  given  consistently  with 
public  policy,  and  without  violating 
any  absolute  rule  of  law."  See,  also, 
Whittenton  Mfg.  Co.  v.  Staples,  164 
Mass.  320,  29  L.R.A.  500;  Whitney 
v.  Union  Railway  Co.,  11  Gray,  359, 
71  Am.  Dec.  715. 

9  Keening  v.  Ayling,  126  Mass. 
404;  Smith  v.  Bradley,  154  Mass. 
227;  Hobson  v.  Cartwright,  93  Ky. 
368. 


1864  THE  LAW  OF  DEEDS.  [CHAP.    XXVII. 

fied  distance  of  a  line,  requires  that  no  part  of  the  building 
shall  project  beyond  such  line.^  For  instance,  a  restriction 
in  a  deed  declared  that  no  building  should  be  erected  within 
twenty  feet  of  a  certain  street.  The  grantee  built  a  house 
facing  that  street,  the  front  wall  of  which  was  twenty  feet 
distant  from  the  street;  but  a  part  of  the  roof  sloping  toward 
the  street  was  extended  to  a  line  about  fourteen  feet  distant 
from  the  street  covering  a  piazza,  and  supported  by  posts 
placed  six  feet  from  the  front  wall  of  the  house,  and  in  this 
part  of  the  house  there  was  also  a  dormer  window  by  which 
a  room  in  the  second  story  was  extended  a  distance  of  three 
feet  from  the  line  of  the  front  wall  of  the  house.  It  was  de- 
cided that  the  portion  of  the  roof  and  dormer  window  extend- 
ing beyond  the  front  line  of  the  building  was  an  extension  of 
the  building,  and  prohibited  by  the  restriction  in  the  deed.^ 
So,  in  another  case,  where  the  restriction  was :  "No  building 
erected  on  said  premises  shall  be  placed  at  a  less  distance  than 
twenty  feet  from  the  said  easterly  line  of  Parsons  street," 
and  the  front  line  of  the  main  body  of  the  house  was  twenty 
feet  from  the  street  but  attached  to  the  house,  and  extending 
along  the  entire  front  was  a  piazza,  about  eight  feet  wide  and 
having  a  roof  supported  by  posts,  it  was  considered  that  the 
whole  of  the  piazza  was  within  the  terms  of  the  restriction.' 
But  an  awning  in  front  of  a  building  extending  thirteen  feet 
from  the  house  line  to  the  curb  does  not  constitue  a  violation 
of  a  restriction  providing  "that  the  front  of  any  messuages, 

1  Bagnall  v.  Davies,  140  Mass.  501.  The  court  said  it  could  see  no 
"Ki;  Attorney  General  v.  Williams,  ground  for  a  distinction  between  a 
140  Mass.  329,  54  Am.  Rep.  468;  piazza  covered  by  the  main  exten- 
Payson  v.  Burnham,  141  Mass.  547;  sion  of  a  house  and  one  covered 
Manners  v.  Johnson,  1  Ch.  Div.  by  its  own  roof  and  attached  to  the 
673.  See,  also  Ogontz  v.  Land  etc.  house.  See,  also,  Smith  v.  Bradley, 
Co.,  168  Pa.  St.  178,  31  Atl.  1008.  154  Mass.  227;   Ogontz  Land  and 

2  Bagnall  v.  Davies,  140  Mass.  16.       Improvement   Co.   v.  Johnson,   168 
8Reardon  v.  Murphy,  163  Mass.       Pa.  St  178. 


CHAP.    XXVII.]   CONDITIONS,  LIMITATIONS^  ETC.  1865 

dwelling  houses,  and  other  buildings"  shall  recede  eight  feet 
from  the  street  line.* 

§  990d.  Bay  windows. — Bay  windows  are  also  consid- 
ered as  parts  of  a  building.^  A  deed  contained  this  clause : 
"It  is  further  agreed  that  the  building  or  buildings  that  shall 
be  erected  on  the  said  lot  shall  be  of  brick  and  set  the  same 
distance  back  from  Third  street,  as  the  house  now  erected  on 
the  southwest  corner  of  Third  and  Oak  streets,  and  shall  be 
suitable  dwellings  for  the  neighborhood."  The  court  con- 
strued this  clause  as  requiring  that  the  front  wall  only  of  each 
building  erected  on  the  land  should  be  equally  distant  from 
the  street,  with  the  front  wall  of  the  house  then  standing  on 
the  other  lot,  and  as  not  intending  to  forbid  the  erection  or  to 
prescribe  the  shape  or  dimension  of  any  porch,  stoop,  or  plat- 
form which  the  respective  owners  might  please  to  build.®  It 
was  stipulated  in  a  deed  that  the  front  wall  of  any  building 
erected  on  the  land  conveyed  should  be  set  back  twenty  feet 
from  the  avenue,  with  a  proviso  that  "porticos  and  other 
usual  projections"  appurtenant  to  the  wall  might  project  into 
the  reserved  space,  subject  to  these  limitations:  "No  projec- 
tion of  any  kind  other  than  doorsteps  and  balustrades  con- 
nected therewith,  and  also  cornices  at  the  roof  of  the  build- 
ing, will  be  allowed  to  extend  more  than  five  feet  from  said 
wall  into  said  front  space.  No  projection  in  the  nature  of  a 
bay  window,  circular  front,  or  octagon  front,  with  the  founda- 
tion wall  sustaining  the  same  (such  foundation  wall  being 
a  projection  of  the  front  wall)  will  be  allowed,  unless  any 
horizontal  section  of  such  projection  would  fall  within  the  ex- 
ternal lines  of  a  trapezoid,  whose  base  upon  the  rear  line  of 
the  aforesaid  space  does  not  exceed  seven-tenths  of  the  whole 

*  Oclott  V.  Knapp  &  Co.,  89  N.  Y.  son    v.    Burnham,    141    Mass.   547; 

Supp.  201.  Kirkpatrick  v.  Peshine,  24  N.  J.  Eq. 

6  Sanborn  v.  Rice,  129  Mass.  387 ;  206. 

Attorney  General  v.  Williams,   140  ^  Graham  v.  Hite,  93  Ky.  474. 
Mass.  329,  54  Am.  Rep.  468;  Pay- 


1866  THE  Law  of  deeds.  [chap,  xxvit. 

front  of  the  building,  nor  exceed  eighteen  feet  in  any  case, 
and  whose  side  hnes  make  an  angle  of  forty-five  degrees  with 
the  base;  and  each  house  in  a  block  shall  be  considered  a  sep- 
arate building  within  the  meaning  of  this  limitation."  The 
court  decided  that  the  basement  story  of  such  a  building  sur- 
mounted by  a  balcony  such  as  had  never  been  used  in  this 
country  was  not  a  "usual  projection"  within  the  meaning  of 
the  deed,  and  also  that  each  of  several  bay  windows  of  the 
building  must  fall  within  the  external  lines  of  a  trapezoid, 
the  base  of  which,  while  it  might  overlap  upon  a  portico  or 
balcony,  was  clear  of  that  of  the  adjoining  bay  window,  and 
did  not  extend  beyond  the  exterior  lines  of  the  building,  and 
the  combined  bases  of  all  the  trapezoids  must  not  exceed  seven- 
tenths  of  the  whole  front  of  the  building.  A  mandatory  in- 
junction was  issued  for  the  removal  of  such  projections  as 
were  insisted  upon,  unless  so  slight  as  to  come  within  the  rule 
de  minimis!' 

§  990e.     Restrictions  as  to  purposes  of  building  lots. — 

Frequently  an  owner  of  a  tract  of  land  who  desires  to  cut 
it  up  into  lots  for  building  purposes,  inserts  in  the  deeds  of 
sale  building  restrictions  as  a  part  of  a  general  plan  for  the 
improvement  of  the  whole  tract.  When  uniform  restrictions 
as  to  the  purposes  for  which  the  lots  may  be  used  are  inserted 
in  the  deeds,  these  provisions  inure  to  the  benefit  of  the  several 
grantees.  Each  grantee,  may,  in  equity,  enforce  these  pro- 
visions against  the  other  grantees.^  It  is,  however,  essential 
to  ascertain  the  purpose  of  the  grantor  in  the  imposition  of 

■^  Attorney  General  v.  Algonquin  8  Payson  v.  Burnham,   141   Mass. 

Club,  153  Mass.  447,  11  L.R.A.  500.  547,  6  N.  E.  708;  Jeffries  v.  Jeffries, 

See,  also,  as  to  the  construction  of  117    Mass.    184;    Parker  v.    Night- 

the  decree,  the  later  case  of  Attor-  ingale,    6    Allen    341 ;    Sanborn    v. 

ney  General  v.  Algonquin  Club,  155  Rice,    129   Mass.   387;    Whitney   v. 

Mass.  128.    See,  also.  Attorney  Gen-  Railway  Co.,  11  Gray  359;  Beals  v. 

eral  v.  Ayer,  148  Mass.  584;  Linzee  Case,  138  Mass.  138;  Peck  v.  Con- 

V.  Mixer,  101  Mass.  512.  way,  119  Mass.  54& 


CIJAP.    XXVII.]    CONDITIONS,  LIMITATIONS,  ETC.  1867 

these  restrictions.  They  may  be  made  for  his  own  personal 
benefit,  or  they  may  have  been  imposed  for  the  benefit  gen- 
erally of  the  purchasers  of  the  lots;  and  the  grantor's  inten- 
tion may  be  ascertained  from  his  acts  and  the  circumstances.* 
In  a  case  where  the  owner  of  a  tract  of  land  platted  it  into 
thirteen  city  lots  and  sold  twelve  of  them  by  deeds  executed 
contemporaneously,  in  each  of  which  buildings  to  be  erected 
on  the  lots  were  restricted  to  "first  class  dwelling  houses  only," 
except  that  in  the  case  of  an  irregular  corner  lot,  and  not  suit- 
able for  a  dwelling,  the  erection  of  a  store  was  allowed.  The 
grantor  conveyed  without  restriction  the  remaining  lot  which 
was  also  irregular  in  shape  and  unfit  for  dwelling  purposes. 
As  the  grantor  owned  no  other  land  in  the  neighborhood,  it 
was  held  that  this  restriction  as  to  building  was  placed  on 
each  lot  for  the  benefit  of  all  the  others  and  consequently  that 
each  owner  had  the  right  to  enforce  it  against  all  the  others.^ 
So,  where  a  grantor  having  platted  a  tract  of  land,  disposed 
of  them  by  deeds  each  containing  the  condition  that  "no  build- 
ing except  a  dwelling  house,  to  be  exclusively  used  as  a  resi- 
dence for  a  private  family  shall  ever  be  erected  thereon."  As 
these  restrictions  are  for  the  benefit  of  the  purchasers,  they 
can  be  enforced  in  equity  both  by  and  against  the  grantees.* 
But  if  the  owner  of  the  land  executes  a  number  of  conveyances 
subject  to  restrictions,- and  also  a  number  of  other  convey- 
ances free  from  all  restrictions,  a  court  is  not  justified  in  con- 
cluding that  a  general  building  scheme  founded  on  these  re- 
strictions was  adopted  for  the  whole  tract.^  Nor  can  such 
a  general  scheme  of  restriction  be  said  to  be  shown  by  a  deed 
reciting  that  it  was  made  subject  to  the  restrictions,  "if  any 
now  exist,"  mentioned  in  a  former  deed  from  the  grantor  to 
a  third  person  as  such  a  recital   will   be  considered  not  as 

9Hano  V.  Bigelow,  155  Mass.  341,  3  Donaboe  v.  Turner,  204  Mass. 

29  N.  E.  628.  274,  90  N.  E.  549;  See,  also,  Haines 

iHano  V.  Bigelow,  155  Mass.  341,       v.  Einvvachter  (N.  J.)  55  Atl.  38. 
29  N.  E.  628. 

2  Hopkins    v.    Smith,    162    Mass. 
444.  38  N.  E.  1122. 


1868  THE  LAW  OF  DEEDS.  [CHAP.    XXVII. 

showing  a  scheme  of  restriction  but  merely  as  precautionary.* 
If  a  deed  contains  a  covenant  against  incumbrances  the  meas- 
ure of  damages  caused  by  the  existence  in  the  chain  of  title 
of  the  grantor  of  a  covenant  against  the  erection  of  certain 
kinds  of  buildings  on  the  lot  for  a  specified  number  of  years, 
and  which  requires  that  any  building  placed  on  the  lot  shall 
be  a  certain  distance  from  the  street  is  the  difference  between 
the  value  of  the  lot  with  and  without  this  covenant.^  Al- 
though the  restriction,  forbidding  the  erection  of  a  build- 
ing more  than  nine  feet  "on  the  rear  end  of  the  lot"  is  vague 
and  indefinite,  because  it  cannot  be  said  with  any  degree  of 
certainty  what  constitutes  the  rear  end  of  a  lot,  yet  if  the 
grantee  admits  that  his  intention  is  to  erect  a  five  story  build- 
ing on  the  entire  lot  he  may  be  enjoined.® 

§  991.  Removal  of  restriction. — Where  a  restriction  is 
imposed  for  a  certain  purpose,  and  the  object  for  which  the 
restriction  was  made  is  afterward  abandoned,  the  land  may 
become  free  from  the  restriction.'  Thus,  land  lying  between 
two  streets  in  a  city  was  divided  up  by  the  corporation  own- 
ing it  into  lots,  and  sold  at  auction.  Among  the  terms  of 
the  sale  was  the  provision  that  "between  the  lots  there  shall 
be  a  railway  fourteen  feet  wide,  to  be  for  the  common  bene- 
fit of  all  the  lots  bounding  on  it,  to  be  used  for  no  other  pur- 
pose than  a  railway,  and  no  building  is  ever  to  be  built  over 
it."  By  the  deeds,  afterward  executed,  the  fee  to  the  middle 
of  this  strip  of  land  was  conveyed,  with  the  easements,  and 
subject  to  the  restrictions  named  in  the  terms  of  the  sale.  On 
this  strip  of  land  railway  tracks  were  afterward  laid,  but  sub- 
sequently its  use  for  a  railway  ceased.  An  owner  of  one  of 
the  lots  commenced  a  suit  in  equity,  more  than  twenty  years 
after  the  abandonment  of  the  land  for  railway  purposes,  to 

*Donahoe  v.  Turner,  204  Mass.  ^  Wesley  v.  Sulzer,  224  Pa.  311, 

274,  90  N.  E.  549.  73  Atl.  338. 

5  Williams   v.   Hewitt,   57   Wash. 
62,  106  Pac.  496. 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS^  ETC.  1869 

compel  the  removal  of  a  structure  on  the  land  of  the  defend- 
ant. The  court  held,  however,  that,  as  to  the  strip  of  land 
reserved  for  a  railway,  the  defendant  might  use  his  land  in 
any  way  he  desired.  It  was  no  longer  subject  to  the  restric- 
tion that  no  building  should  be  erected  on  it.'  Where  there 
is  a  covenant  against  the  erection  of  tenement  houses,  it  will 
not  be  enforced  if  flats  and  tenement  houses  have  already  been 
erected  upon  the  larger  portion  of  the  adjacent  lots.  Such  a 
change  in  the  neighborhood  defeats  the  object  of  the  cove- 
nant, and  it  would  be  contrary  to  the  principles  of  equity  to  de- 
prive the  owner  of  making  a  profitable  use  of  his  property. 
Compensation,  however,  will  be  given  in  damages.'  '  The  right 
to  enforce  a  restriction  may  be  barred  by  acquiescence  in  vio- 
lation of  the  same  or  other  similar  restrictions.  "The  rec- 
ognized doctrine  is  that  where  a  vendor  sells  off  an  estate  in 
lots,  with  restrictions  upon  the  use  of  the  lots  sold,  he  will 
lose  his  right  in  equity  to  enforce  the  restrictions  against  one 
grantee,  if  he  has  knowingly  permitted  other  grantees  to  vio- 
late the  same  restrictions,  the  effect  of  which  violation  is  to 
abrogate  the  purpose  of  the  restriction  and  alter  the  general 

'  Bangs  V.  Potter,  135  Mass.  245.  his  lot  for  any  purpose  he  pleased, 

Said  Coburn,  J.,   in  delivering  the  without  restraint  by  the  'terms  of 

opinion  of  the  court :     "These  ser-  sale'    or   provisions    in    the    deeds : 

vitudes    and    easements    were    ex-  Central  Wharf  v.  India  Wharf,  123. 

pressly  limited  to  a  railway ;   and,  Mass.  567.    What  provision  the  cor- 

though  it  would  be  a  benefit  to  each  poration  would  have  made  for  the 

lot  to  receive  light  and  air  through  use  of  this  strip  of  land,  if  the  pos- 

the    space   which    was    to    be    kept  sibility   that   the   railway   might   be 

open   for  the  railway,  the  benefits  abandoned  had  been  considered,  it 

of  light  and  air  are  incidents  which  is  useless  to  conjecture;  it  did  not 

result    from    the    provisions    for    a  provide  for  such  contingency,  and 

railway,  and  are  not  provided   for  the  provisions  of  the  deeds  cannot 

independently   of   the  railway,   and  be  modified  or  extended,  so  as  to 

no  servitude  is  imposed  or  easement  make  them  in  accordance  with  what 

granted    for   any   purpose   but   the  it  may  be  supposed  the  corporation 

railway;  and,  when  the  railway  was  would  have  done  if  it  had  anticipat 

abandoned,  all  servitudes  and  ease-  ed  the  existing  state  of  things." 
ments  terminated,  and  each  owner  ^  Amerman  v.  Deane,   132  N.  Y, 

had  the  right  to  use  the  whole  of  355,  28  Am.  St.  Rep.  584. 


1870 


THE  LAW  OF  DEEDS. 


[chap.    XXVII. 


scheme  intended  to  be  conserved  by  it.  The  rule  is  appHcable 
whether  the  suit  is  brought  by  the  covenantee  or  by  one  of  sev- 
eral grantees  of  land  sold  in  accordance  with  the  general 
scheme  by  the  original  covenantee. 

"It  rests  upon  the  equitable  ground  that  if  any  one  who  has 
a  right  to  enforce  the  covenant  and  so  preserve  the  conditions, 
which  the  covenant  was  designed  to  keep  unaltered,  shall  ac- 
quiesce in  material  alterations  of  those  conditions,  he  cannot 
thereafter  ask  a  court  of  equity  to  assist  him  in  preserving 
them."  ^  But  an  abandonment  will  not  be  presumed  because, 
in  a  few  instances,  a  mere  strict  observance  of  the  covenants 
has  not  been  required.^  And  it  is  said  that  the  violation  ac- 
quiesced in  must  be  of  such  character  as  to  be  offensive  to  the 
complainant  in  order  that  equity  will  refuse  to  grant  relief  on 
the  theory  that  the  right  of  enforcement  has  been  lost  by  ac- 
quiescence.^ The  violations  acquiesced  in  must  be  material 
in  order  that  equity  will  withhold  relief.® 


^  Ocean  City  Ass'n  v.  Chalfant, 
65  N.  J.  Eq.  156,  1  A.  &  E.  Ann. 
Cas.  601,  55  Atl.  801,  citing  Roper 
V.  Williams,  T.  &  R.  18;  Peek  v. 
Matthew,  L.  R.  3  Eq.  515.  See,  also, 
Chelsea  Land  etc.  Co.  v.  Adams, 
71  N.  J.  Eq.  771,  14  A.  &  E.  Ann. 
Cas.  758,  66  Atl.  180;  Brown  v. 
Wrightman,  5  Cal.  App.  391,  90 
Pac.  467;  Sharer  v.  Pantler,  127 
Mo.  App.  433,  105  S.  VV.  668;  Lig- 
not  V.  Jaekle  (N.  J.),  65  Atl.  221; 
and  see  Bowen  v.  Smith,  (N.  J. 
Eq.),  74  Atl.  675;  Righter  v. 
Winters,  68  N.  J.  Eq.  252,  59  Atl 
770.  See,  also,  in  this  connection 
Sec.  991    (c)    post. 

1  Morrow  v.  Hasselman,  69  N. 
J.  Eq.  612,  61  Atl.  364;  Lignot  v. 
Jaekh  (N.  J.),  65  Atl.  221;  Waters 
V.  Collins  (N.  J.),  70  Atl.  984; 
Newbery  v.  Barkalow,  (N.  J.),  71 
Atl.  752;  De  Lima  v.  Mitchell,  98 


N.  Y.  Supp.  811,  49  Misc.  171; 
Levy  V.  Halcyon  etc.  Co.,  92  N. 
Y.  Supp.  231,  45  Misc.  289.  Must 
be  acquiesence  by  complainant  to 
bar  relief ;  Bingham  v.  Murlok  Co. 
(N.  J.),  70  Atl.  185.  See,  also,  in 
this  connection.  Woodbine  etc.  Co. 
V.  Reiner  (N.  J.),  65  Atl.  1004. 

2  Osborne  v.  Bradley,  2  Ch.  446 ; 
Barten  v.  Slifer,  72  N.  J.  Eq.  812, 
66  Atl.  899;  Rowland  v.  Miller,  139 
N.  Y.  93,  22  L.R.A.  182,  34  N.  E. 
765 ;  Levy  v.  Halycon  etc.  Co.,  92 
N.  Y.  Supp.  231,  45  Misc.  289; 
McDonald  v.  Spang.  105  N.  Y. 
Supp.  617,  55  Misc.  332;  Brigham 
V.   Murlock  Co.,  74  N.  J.  Eq.  287, 

70  Atl.  185;  Bowen  v.  Smith  (N. 
J.  Eq.),  74  Atl.  675;  McGuire  v. 
Caskey,  62  Ohio  St.  419,  57  N.  E. 
53. 

3  See  Hyman  v.  Lash  (N.  J.  Eq.), 

71  Atl.  742;   Bowen  v.   Smith    (N. 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS,  ETC.  1871 

§  991a.  Reasonable  construction. — A  restriction  that 
a  building  shall  be  used  only  for  particular  purposes,  or  that 
it  may  be  used  for  any  purpose  except  those  specified,  must, 
like  every  other  contract,  receive  a  reasonable  construction. 
It  was  contended  in  a  case  that  we  have  already  cited,  where 
the  use  of  a  lower  story  of  a  dwelling-house  as  a  grocery 
was  prohibited,  that  such  restrictions  are  viewed  with  disfa- 
vor, and  are  not  to  be  extended  by  implication  beyond  their 
literal  interpretation,  and  that  the  grantee  had  the  right  to 
convert  his  dwelling,  when  built,  into  a  place  of  business,  and 
might  carry  on  such  business  if  he  did  so  in  an  inoffensive  man- 
ner. Mr.  Justice  Ames  answered  this  contention  by  observing : 
''But  this  mode  of  dealing  with  the  condition  deprives  it  of  all 
force  whatever,  and  seems  to  us  to  be  a  mere  evasion.  There  is 
nothing  in  the  condition  that  appears  to  be  unreasonable,  or 
contrary  to  the  policy  of  the  law ;  and  there  is  no  reason  for 
doing  violence  to  the  language  in  which  it  is  expressed,  or 
perverting  its  true  meaning.  Some  kinds  of  industry  might 
be  carried  on  in  a  dwelling-house  without  any  inconvenience 
whatever  to  the  neighborhood.  The  house  might  be  occupied 
by  a  physician  or  a  lawyer,  perhaps  by  a  chemist  or  photog- 
rapher, and  a  portion  of  it  set  apart  as  an  office  or  place  of 
business,  without  any  offense  or  objection.  All  this  would  be 
allowable  under  the  deed.  But  to  change  a  dwelling-house  into 
a  grocery,  a  workshop,  or  a  market,  would  be  a  very  different 
matter.  The  condition  cannot  be  construed  as  having  any 
other  meaning  than  to  prescribe  the  kind  of  a  building  that 
shall  be  erected,  and  the  manner  in  which  it  shall  be  used  ^nd 
occupied."  *     Where  a  deed  provides  that  the  grantor  should 

J.    Eq.),    74    Atl.    675;    Adams    v.  Brigham   v.    Mulock   Co.,  74   N.  J, 

Howell,    108   N.   Y.    Supp.  945,   SS  Eq.   287,   70   Atl.    185;   Morrow   v. 

Misc.  435;  Bacon  v.  Sandberg,  179  Hassdman,   69   N.   J.    Eq.   612,   61 

Mass.  396,  60  N.  E.  936;   Stewart  Atl.  369;  Waters  v.  Collins   (N.  J. 

V.    Finklestone    (Mass.),  92   N.    E.  Eq.),  70  Atl.  984;  McGinre  v.  Cask- 

27;  note,  also,  Rigliter  v.  Winters,  ey,   62  Ohio   St.  419,  57  N.   E.  53. 

68    N.    J.    Eq.    252,    59    Atl.    770;  « Dorr    v.    Harrahan,    101    Mass. 


1872 


THE  LAW  OF  DEEDS. 


[chap.    XXVII. 


not  put  upon  the  premises  "any  buildings,  timbers,  trees,  or 
other  nuisances,"  the  term  "other  nuisances"  will  not  include 
excavations  unless  such  an  intention  is  apparent  from  the 
deed  as  a  whole.^  But  a  condition  that  no  dwelling  house 
shall  contain  more  than  two  tenements  or  be  erected  for  more 
than  two  families  is  violated  where  a  building  is  erected  with 
a  capacity  for  three  families.®  And  the  carrying  on  of  a 
photograph  gallery  is  a  violation  of  a  restriction  forbidding 
the  erection  of  buildings  other  than  dwelling  houses  and  neces- 
sary out  buildings.' 

§  991b.  Public  policy.  A  restriction  in  a  deed  that 
the  land  conveyed  shall  be  used  for  residence  purposes  only, 
and  not  for  the  purpose  of  carrying  on  any  trading  or  mer- 
cantile business  is  not  opposed  to  public  policy.'     An  agree- 


534,  3  Am.  Rep.  398.  In  case  of 
doubt,  the  clause  creating  the  re- 
striction should  be  construed 
against  the  grantor  and  in  favor  of 
the  grantee's  right  not  to  have  the 
land  restricted.  American  etc. 
Ass'n  V.  Minot,  185  Mass.  589,  71 
N.  E.  551.  The  restriction  will  not 
be  extended  by  construction.  Quat- 
man  v.  McCray,  128  Cal.  285,  60 
Pac.  855;  Peck  v.  Hartshorn,  189 
Mass.  110,  7t)  N.  E.  133;  Waters -v. 
Collins  (N.  J.  Ch.),  70  Atl.  984. 

5  Cross  V.  Frost,  64  Vt.  179.  Said 
Mr.  Justice  Munson :  "It  is  a  gen- 
eral rule  that  when  words  of  par- 
ticular designation  are  followed  by 
an  expression  of  general  import, 
the  latter  can  be  held  to  include 
only  things  similar  in  character  to 
those  specially  named :  Brainerd  v. 
Peck,  34  Vt.  496;  Parks  Adminis- 
trator V.  American  Home  etc.  Soc, 
62  Vt.  19;  Re  Barre  Water  Co., 
62  Vt.  27,  9  L.R.A.   195.     If  this 


rule  governs  the  construction  of 
the  clause  quoted,  the  phrase  'other 
nuisances'  cannot  be  made  to  in- 
clude a  lowering  of  the  surface,  for 
the  things  named  are  only  such  as 
are  placed  upon  and  raised  above 
the  surface.  We  think  the  scope  of 
the  phrase  must  be  restricted  in  ac- 
cordance with  this  rule,  unless  its 
use  in  a  more  comprehensive  sense 
is  apparent  from  the  instrument  as 
a  whole." 

6  Ivarson  v.  Mulvey,  179  Mass. 
141,  60  N.  E.  477.  Apartment  house 
not  tenement,  see  Marx  v.  Brogan, 
98  N.  Y.  Supp.  88,  111  App.  Div. 
480.  See,  also,  Kitching  v.  Brown, 
180  N.  Y.  414,  70  L.R.A.  742,  7Z  N. 
E.  241.  Flat  construed,  see  Lignot 
v.  Jaekle,  72  N.  J.  Eq.  233,  65  Atl, 
221. 

'Frink  v.  Hughes  (Mich.),  94 
N.  W.  601. 

8  Morris  v.  Tuskaloosa  Mfg.  Co., 
83  Ala.  565.  3  So.  Rep.  689. 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS^  ETC. 


1873 


ment  in  a  lease  that  the  premises  shall  be  used  "strictly  as  a 
private  dwelling,  and  not  for  any  public  or  objectionable  pur- 
pose" is  broken  if  the  premises  are  allowed  to  be  used  as  a 
boarding-house.^  !  Where  a  statute  authorizes  the  sale  to  a  city 
of  a  square,  and  provides  that  "no  part  of  said  ground  lying 
in  tlie  southward  of  the  State-house  within  the  wall  as  it  is 
now  built,  be  made  use  of  for  erecting  any  sort  of  buildings 
thereon,  but  that  the  same  shall  be  and  remain  a  public  green 
and  walk  forever,"  the  restriction  is  not  violated  by  the  erec- 
tion of  a  monument  consisting  of  a  statue  upon  a  pedestal.^ 
A  restriction  in  a  deed  that  the  lots  conveyed  shall  not  "be 
used  for  purposes  other  than  a  dwelling-house,  office,  privy, 
coach-house  or  stable,  the  restriction  to  cease  only  when  the 
lot  should  be  built  on  according  to  the  spirit  of  the  agreement," 
will  prohibit  the  erection  of  a  church.^    While  it  is  contrary  to 


9  Gannett  v.  Albree,  103  Mass. 
372. 

1  Society  of  Cincinnati's  Appeal, 
154  Pa.  St.  621,  20  L.R.A.  323,  26 
Atl.  Rep.  647. 

2  St.  Andrew's  Chnrch  Appeal, 
67  Pa.  St.  512.  It  was  said  by  Mr. 
Justice  Sharswood  in  delivering  the 
opinion  of  the  court:  "It  is  not  dis- 
puted that  the  covenant  upon  which 
the  injunction  was  prayed  ran  with 
the  land,  and  was  binding  upon  the 
defendants;  nor  has  it  been  pre- 
tended that  a  court  of  equity  is 
not  bound  according  to  well-estab- 
lished principles  and  precedents  to 
enforce  the  specific  performance  of 
of  such  a  covenant,  by  restraining 
its  breach,  unless  some  good  ground 
can  be  shown  to  the  contrary.  It 
has  been  argued,  but  not  much 
pressed,  that  the  edifice  proposed 
to  be  erected  by  the  defendants,  if 
against  the  letter,  is  not  against  the 
spirit  of  the  covenant.     It  is  urged 

Deeds,  Vol.  H,— 118 


that  it  was  aimed  at  preventing 
what  might  be  a  nuisance  or  annoy- 
ance to  the  owners  of  other  dwell- 
ing-houses on  the  square,  and  that 
a  church  in  no  sense  would  be  such. 
It  is  enough  to  say,  in  answer  to 
this  suggestion,  that  by  confining 
the  erection  of  buildings  to  private 
dwelling-houses,  offices,  privies,  or 
necessary  houses,  coach-houses,  or 
stables,  it  was  evidently  intended  to 
prohibit  any  buildings  of  public  re- 
sort, such  as  a  hotel,  circus,  men- 
agerie, theater,  or  other  similar 
establishment;  and  if  the  plaintiff 
cannot  prevent  a  church  from  being 
built  in  the  first  instance,  he  cer- 
tainly could  not  afterward  prevent 
it  from  being  used  for  any  othef 
purpose.  The  covenant  is  directed 
against  the  building  alone,  not  the 
subsequent  use,  and  when  a  build- 
ing is  lawfully  erected  on  either 
of  the  lots,  so  far  as  that  building 
is    concerned,    the    covenant    is   at 


1874 


THE  LAW   OF  DEEDS. 


[chap.    XXVII 


good  business  policy  to  allow  restrictions  and  prohibitions  to 
be  inserted  in  conveyances  which  tie  up  the  use  of  property, 
nevertheless,  if  the  condition  restricting  the  use  of  the  property 
is  made  in  good  faith,  and  stipulates  for  nothing  that  is  malum 
in  se  or  malum  prohibitum,  before  the  court  should  determine 
the  condition  to  be  void  as  contravening  public  policy,  it 
should  be  satisfied  that  the  advantage  to  accrue  to  the  public 
from  so  holding  is  certain  and  substantial  and  not  theoretical 
and  problematical.^  Accordingly,  a  condition  in  a  deed  pro- 
viding that  no  grain  elevator  should  ever  be  erected  on  the 
village  lots  conveyed,  and  that  grain  should  never  be  handled 
thereon,  was  held  valid  and  enforceable,  although  the  building 
erected  was  a  public  warehouse,  there  being  no  such  ware- 
house on  the  premises  when  conveyed,  and  the  condition  not 
affecting  all  the  available  lands  in  the  community.*  The  court 
in  that  case  says :     "So  long  as  the  beneficial  enjoyment  of 


an  end.  There  would  be  nowhere 
any  power  to  restrain  its  application 
to  any  purpose  not  a  nuisance  in 
itself.  To  protect  himself,  there- 
fore, from  such  a  consequence,  it 
was  the  clear  right  of  the  plaintiff 
to  stand  upon  the  covenant,  even 
though  the  erection  of  a  church 
might  not  prove  of  any  actual  in- 
convenience or  annoyance  to  him 
so  long  as  it  was  only  used  as  a 
church.  It  is  plain,  too,  that  in 
such  a  case  the  amount  of  damage 
which  the  plaintiff  may  be  likely 
to  suffer  from  the  threatened 
breach,  ought  not  to  enter  as  an  ele- 
ment in  the  determination.  In  this 
respect  there  is  a  manifest  distinc- 
tion between  cases  depending  on 
nuisance  and  on  contract :  Attorney 
General  v.  The  Railway  Companies, 
Law  Rep.  3  Ch.  App.  99;  Hills  v. 
Miller,  3  Paige.  2.S4 ;  24  Am.  Dec. 
218.     Indeed,  the  fact  that  a  jury 


would  not  give  probably  any  more 
than  nominal  damages,  is  a  circum- 
stance which  appeals  most  strongly 
to  the  conscience  of  the  chancellor 
to  stretch  forth  the  strong  arm  of 
the  court  for  the  plaintiff's  relief. 
It  is  his  only  adequate  remedy  for 
the  violation  of  a  clear  and  indubit- 
able right."  See,  also,  where  the 
use  of  a  building  for  charitable  pur- 
poses has  been  held  to  be  a  violation 
of  a  restriction,  German  v.  Chap- 
man, 7  Ch.  D.  271;  Rolls  v.  Miller, 
25  Ch.  D.  206,  27  Ch.  D.  71 ;  Bram- 
well  V.  Lacy,  10  Ch.  D.  691 ;  Win- 
nipesaukee  Camp  Meeting  Assn.  v. 
Gordon,  6Z  N.  H.  505. 

3  Wakefield  v.  Van  Tassell,  202 
III.  41,  65  L.R.A.  511,  66  N.  E.  830, 
95  Am.  St.  Rep.  207. 

4  Wakefield  v.  Van  Tassell,  202 
111.  41.  65  L.R.A.  511.  66  N.  E. 
830,  95  Am.  St.  R.ep.  207. 


CHAP.    XXVII.]    CONDITIONS,  LIMITATIONS^  ETC.  1875 

an  estate  conveyed  in  fee  simple  is  not  materially  impaired 
by  restrictions  and  conditions  contained  in  a  deed,  such  re- 
strictions and  conditions,  as  to  the  mode  of  its  use,  are  held 
vaHd.  The  enforcement  of  these  conditions  by  the  courts 
arises  from  the  principle  of  law  that  every  owner  of  the  fee 
has  the  legal  right  to  dispose  of  his  estate  either  absolutely  or 
conditionally,  or  to  regulate  the  manner  in  which  the  estate 
shall  be  used  and  occupied,  as  the  grantor  may  deem  best  and 
proper.  Just  so  long  as  the  conditions  and  restrictions  are  not 
violative  of  the  public  good  or  subversive  of  the  public  in- 
terests they  wnll  be  enforced."  A  condition  against  aliena- 
tion is  void  because  repugnant  to  the  estate  granted.*  But 
conditions  in  partial  restraint  of  alienation  have  been  held 
good.® 

§  991c.  Changed  conditions  of  city. — Where  a  restric- 
tion is  intended  to  make  the  locality  suitable  for  a  certain  pur- 
pose, as  for  instance,  for  residences,  and  the  growth  of  the 
city  or  other  conditions  not  resulting  from  a  breach  of  the 
covenant  show  that  the  purpose  can  no  longer  be  accomplished, 
it  would  be  inequitable  to  enforce  it,  and  hence  its  violation 
cannot  be  enjoined  in  equity.''  Thus,  where  a  covenant  was 
made  that  only  dwelling-houses  should  be  erected  on  the 
land,  and  that  no  kind  of  manufactory,  trade,  or  business 
should  be  conducted  or  suffered  on  the  premises,  but  subse- 
quently, the  advance  of  business,  and  the  operation  of  an  ele- 
vated railroad  through  the  street,  caused  the  value  of  the 
property  for  any  purpose  except  commercial  to  become  great- 

6  Teaney    v.    Mains,    113    la.    53,  Duke  of  Belford  v.  British  Muse- 

84  N.  W.  953.  um,  2  Mylne  &  K.  552;   Saycrs  v. 

^Fouts  V.    Miliken,  30  Ind.  App.  Collyer,  24   Ch.  Div.   180;  German 

298,  65  N.  E.  1050.  v.  Chapman,  7  Ch.  Div.  271.     See 

'  Trustees  of  Columbia  College  v.  also,  Boston  etc.  Union  v.  Trus- 
Thacher,  87  N.  Y.  311,  41  Am.  Rep.  tees,  183  Mass.  202,  66  N.  E.  714. 
365;  Jackson  v.  Stevenson,  156  See,  also,  in  connection  with  sub- 
Mass.  496,  32  Am.  St.  Rep.  476;  ject  matter  of  this  section,  §  991 
Starkie  v.  Richmond,  155  Mass.  188;  (ante). 


1876 


THE  LAW  OF  DEEDS. 


[chap.    XXVII. 


ly  lessened,  it  was  decided  that  owing  to  the  changed  condi- 
tions, the  restriction  would  not  be  enforced  against  a  subse- 
quent purchaser.'  In  a  similar  case  Mr.  Justice  Barker  ob- 
served:  "If  all  the  restrictions  imposed  in  the  deed  should 
be  rigidly  enforced,  it  would  not  restore  to  the  locality  its  resi- 
dential character,  but  would  merely  lessen  the  value  of  every 
lot  for  business  purposes.  It  would  be  oppressive  and  inequi- 
table to  give  effect  to  the  restrictions;  and  since  the  changed 
condition  of  the  locality  has  resulted  from  other  causes  than 
their  breach,  to  enforce  them  in  this  instance  could  have  no 
other  effect  than  to  harass  and  injure  the  defendant,  without 
effecting  the  purpose  for  which  the  restrictions  were  originally 
made."  ^  But  the  party  may  be  entitled  to  some  damages, 
and  is  entitled  to  have  the  bill  retained  for  the  purpose  of  as- 
sessing them.^  A  court  of  equity  will  refuse  to  enjoin  the 
erection  of  an  apartment  house,  although  such  erection  is  in 
violation  of  a  covenant  running  with  the  land,  where  the 
greater  part  of  the  life  of  the  covenant  has  elapsed,  and,  on 


8  Trustees  of  Columbia  College  v. 
Thacher,  87  N.  Y.  311,  41  Am.  Rep. 
865.  Said  Danforth,  J.,  delivering 
the  opinion  of  the  court :  "It  is 
true,  the  covenant  is  without  excep- 
tion or  limitation,  but  I  think  this 
contingency  which  has  happened 
was  not  within  the  contemplation 
of  the  parties.  The  road  was  auth- 
orized by  the  legislature,  and  by 
reason  of  it  there  has  been  imposed 
upon  the  property  a  condition  of 
things  which  frustrates  the  scheme 
devised  by  the  parties,  and  deprives 
the  property  of  the  benelit  which 
might  otherwise  accrue  from  its 
observance.  This  new  condition 
has  already  affected  in  various  ways 
and  degrees  the  uses  of  property  in 
its  neighborhood,  and  property  val- 
ues.    It  has  made  the  defendant's 


property  unsuitable  for  the  use  to 
which,  by  the  covenant  of  his  grant- 
or, it  was  appropriated,  and,  if  in 
face  of  its  enactment  and  the  con- 
tingencies flowing  from  it,  the  cov- 
enant can  stand  anywhere,  it  sure- 
ly cannot  in  a  court  of  equity.  The 
land  in  question  furnishes  an  ill 
site  for  dwelling-houses,  and  it  can- 
not be  supposed  that  the  parties  to 
the  covenant  would  now  select  it 
for  a  residence,  or  expect  others  to 
prefer  it  for  that  purpose." 

5  In  Jackson  v.  Stevenson,  156 
Mass.  496,  32  Am.  St.  Rep.  476. 

^  Jackson  v.  Stevenson,  156  Mass. 
496,  32  Am.  St.  Rep.  476.  /  That  con- 
sideration of  the  change  in  circum- 
stances cannot  be  indulged  in  on 
petition  at  law.  See  Welch  v.  Aus- 
tin, 187  Mass.  256,  68  L.R.A.  189. 


CHAP,    XXVII.]    CONDITIONS,  LIMITATIONS^  ETC.  1877 

account  of  the  changed  circumstances  of  the  neighborhood, 
due  to  third  persons,  the  enforcement  of  the  covenant  would 
be  of  no  value  to  the  complainant  but  would  cause  great  dam- 
age to  the  defendant.^  On  this  subject,  the  New  York  Court 
of  Appeals  says :  "Nineteen  of  the  twenty-five  years  which 
bounded  the  life  of  the  covenant  in  question  have  passed,  and 
the  object  of  the  parties  in  making  it  has  been  defeated  by 
the  unexpected  action  of  persons  not  under  the  control  of  the 
defendant.  Under  the  circumstances  now  existing  the  cove- 
nant is  no  longer  effective  for  the  purpose  in  view  by  the  par- 
ties when  they  made  it,  and  the  enforcement  thereof  cannot 
restore  the  neighborhood  to  its  former  condition  by  making 
it  desirable  for  private  residence.  If  the  building  restriction 
were  of  substantial  value  to  the  dominant  estate,  a  court  of 
equity  might  enforce  it  even  if  the  result  would  be  a  serious 
injury  to  the  servient  estate,  but  it  will  not  extend  its  strong 
arm  to  harm  one  party  without  helping  the  other,  for  that 
would  be  unjust."  ^  The  rule  governing  the  class  of  cases 
under  consideration  has  been  well  stated  by  the  Supreme 
Court  of  Illinois  as  follows :  "Equity  will  not,  as  a  rule,  en- 
force a  restriction,  where,  by  the  acts  of  the  grantor  who  im- 
posed it  or  of  those  who  derived  title  under  him,  the  prop- 
erty, and  that  in  the  vicinage,  has  so  changed  in  its  character 
and  environment  and  in  the  uses  to  which  it  may  be  put  as 
•to  make  it  unfit  or  unprofitable  for  use  if  the  restriction  be 
enforced,  or  where  to  grant  the  relief  would  be  a  great  hard- 
ship on  the  owner  and  of  no  benefit  to  the  complainant,  or 
where  the  complainant  has  waived  or  abandoned  the  restric- 
tion," *  In  the  absence  of  any  material  change  in  conditions 
directly  affecting  the  character  and  use  of  the  property  in 

2McClure   v.    Leaycraft,    183    N.  » McClure  v.   Leaycraft    (supra), 

Y.   36,   75    N.    E.   961,   5    A.   &   E.  per  Vann,  J. 

Ann    Cas    45.  See,  also,   Columbia  *  Ewersten  v.  Gerstenberg,  186  111. 

College  V.  Thacher,  87  N.  Y.  311,  344,  51  L.R.A.  310,  57  N.  E.  1051. 

41  Am.  Rep.  365 ;  Stokes  v.  Stokes,  See,  also,  in  this  connection,  Jenks 

155  N.  Y.  581,  50  N.  E.  342.  v.    Pawlowski,    98    Mich.    110,    56 


1878 


THE  LAW  OF  DEEDS. 


[chap.    XXVII. 


question,  it  is  said  that  equity  will  not  refuse  to  enforce  a 
restriction  on  the  ground  that  it  has  ceased  to  be  binding.' 
And  when  the  restriction,  notwithstanding  the  change  of 
use  of  the  land  and  buildings,  still  is  of  substantial  value  to 
the  dominant  lot,  equity  will  restrain  its  violation,  if  relief  is 
promptly  sought,^ 


N.  W.  1105,  22  L.R.A.  863,  39  Am. 
St.  Rep.  522;  Roth  v.  Jung,  79  N. 
Y.  Supp.  822,  79  App.  Div.  1; 
Deeves  v.  Constable,  84  N.  Y.  Supp. 
592,  87  App.  Div.  352;  Loud  v. 
Pendergast,  206  Mass.  122,  92  N. 
E.  40;  Brown  v.  Wrightman,  5 
Cal.  App.  391,  90  Pac.  467;  Curtis 
V.  Rubin,  244  111.  88,  91  N.  E.  84; 
Sharer  v.  Pantlcr,  127  Mo.  App. 
433,  105  S.  W.  668;  Ocean  City 
Ass'n  V.  Chalfant,  65  N.  J.  Eq.  156, 
55  Atl.  801,  1  A.  &  E.  Ann.  Cas. 
601;  Bowen  v.  Smith  (N.  J.  Eq.), 
74  Atl.  675 ;  Righter  v.  Winters,  68 
N.  J.  Eq.  252,  59  Atl.  770;  Hemsiey 
V.  Hotel  Co.,  62  N.  J.  Eq.  164,  50 
Atl.  14;  Chelsea  Land  &  Improv. 
Co.  V.  Adams,  71  N.  J.  Eq.  771, 
66  Atl.  180,  14  A.  &  E.  Ann.  Cas. 
758;  Los  Angeles  etc.  Co.  v.  Muir, 


136  Cal.  26,  68  Pac.  308;  Shaefer  v. 
Ball,  104  N.  Y.  Supp.  1028,  53  Misc. 
448;  Schwartz  v.  Duhne,  103  N.  Y. 
Supp.  14,  118  App.  Div.  105. 

5  Evans  v.  Foss,  194  Mass.  513, 
9  L.R.A.  (N.S.)  1039,  80  N.  E.  587. 
11  A.  &  E.  Ann.  Cas.  171. 

6  Brown  v.  Ruber,  80  Ohio  St. 
183,  28  L.R.A. (N.S.)  705,  88  N.  E. 
Z22.  See,  also,  in  this  connection 
Landell  v.  Hamilton,  175  Pa.  St. 
327,  34  L.R.A.  227,  34  Atl.  663; 
Zipp  V.  Barker,  40  N.  Y.  Supp. 
325,  6  App.  Div.  609,  affirmed  in  166 
N.  Y.  621,  59  N.  E.  1133;  Batchelor 
V.  Hinkle,  117  N.  Y.  Supp.  542,  132 
App.  Div.  620;  Holt  v.  Fleischman, 
78  N.  Y.  Supp.  647,  75  App.  Div. 
593.  Other  cases  in  which  relief 
is  held  not  to  be  barred,  see  section 
991  (ante). 


992. 

Kinds  of  recitals. 

1002. 

993. 

Recital   that   grantee   is   a 

1003. 

beneficiary. 

1004. 

994. 

Recital  as  surplusage. 

995. 

History  of  title. 

1005. 

996. 

Stranger  to  title. 

1006. 

997. 

Parties  bound  by  recitals. 

1007. 

998. 

Recognition  of  title  in  an- 

otlier. 

1008 

999. 

General  recitals. 

1009 

1000. 

Notice  from  recitals. 

1001. 

Illustrations. 

CHAPTER  XXVIII. 

RECITALS. 

Failure  to  read  recitals. 
Recitals   in   patents. 
Presumption    of    satisfac- 
tion of  vendor's  lien. 
Indefinite  description. 
Collateral  circumstances. 
Notice  of  trust  in  favor  of 

grantee. 
Bond    for   deed. 
Recital  of  nominal  consid- 
eration   as    evidence    of 
fraud   of   trustee. 

§  992.  Kinds  of  recitals. — Recitals  are  introduced  for 
the  purpose  of  explaining  why  the  deed  is  executed,  or  of 
showing  circumstances  which  preserve  the  connection  in  the 
chain  of  title,  and  are  considered  as  being  of  two  kinds,  par- 
ticular and  general.  Particular  recitals  are  conclusive  evi- 
dence of  the  facts  recited  in  actions  in  which  the  purpose  of 
the  deed  is  directly  involved.*  But  if  the  deed  is  merely  col- 
lateral to  the  purposes  of  the  action,  the  recitals  are  but  prima 
facie  evidence  of  the  facts  recited.^  Where  a  married  wom- 
an and  her  husband  execute  a  deed  of  trust  of  her  separate 
estate,  a  recital  in  such  deed  that  it  is  made  to  secure  her  in- 

iMix    V.     People,    86    111.    329;  &   W.   209;    Rucker   v.    Hyde,    118 

George    v.    Bischofif,    68    111.    236;  Tenn.  358,  100  S.  W.  739;  Rankin 

Usina  v.  Wilder,  58  Ga.  178;  Pine-  v.    Moore,    46   Tex.    Civ.    App.    44, 

kard  V.   I^Iilmine,  76  111.  453.     See  101  S.  W.  1049.    And  see  William- 

also  in  this  connection  Harman  v.  son  v.  Mayer,  117  Ala.  253,  23  So. 

Stearns,  95   Va.  58.  27   S.   E.  601.  3. 

'  Carpenter    v.    Duller,    8    Mees. 

1879 


1880 


THE    LAW    OF    DEEDS. 


[chap.    XXVIII. 


debtedness,  evidenced  by  her  and  his  notes,  does  not  preclude 
her  in  an  action  on  the  notes  with  a  prayer  for  judgment 
against  her  separate  estate,  from  showing  that  such  notes 
were  given  for  supphes  furnished  for  a  plantation,  cultivated 
in  her  husband's  name  and  for  his  benefit.'  But  parties  arc 
not  estopped  from  contradicting  general  recitals  lacking  the 
element  of  certainty.*  A  restriction  upon  the  absolute  title 
is  not  imposed  by  a  recital  in  a  grant  from  the  State,  that  it 
is  made  for  commercial  purposes  only.^  The  recitals  in  a 
deed  either  specifically  by  mentioning  them  or  by  stating  facts 


8  Bank  of  America  v.  Banks,  101 
U.  S.  240,  25  L.  ed.  850.  See,  also, 
Young  V.  Raincock,  7  Com.  B.  310; 
Southeastern  Ry.  Co.  v.  Wharton, 
6  Hurl.  &  N.  520;  Stroughill  v. 
Buck,  14  Q.  B.  781 ;  Fraser  v.  Pen- 
dlebury,  31  Law  J.  Com.  P.  1 ; 
Carter  v.  Carter,  3  Kay.  &  J.  617. 
In  Bank  of  America  v.  Banks,  101 
U.  S.  247,  25  L.  ed.  853.  Mr.  Jus- 
tice Clifford,  in  delivering  the  opin- 
ion of  the  court,  said :  "Facts  re- 
cited in  an  instrument  may  be  con- 
troverted by  the  other  party  in  an 
action  not  founded  on  the  same  in- 
strument, but  wholly  collateral  to 
it.  Recitals  of  the  kind  may  be 
evidence  for  the  party  instituting 
the  suit,  but  they  are  not  con- 
clusive :  Carpenter  v.  BuUer,  8 
Mees.  &  W.  209,  213;  Herman  on 
Estoppel,  §  238;  Lowell  v.  Daniels, 
2  Gray,  161,  169,  61  Am.  Dec.  448; 
Chaplain  v.  Valentine,  19  Barb.  485, 
488.  In  order  to  work  an  estoppel, 
the  parties  to  a  deed  must  be  sui 
juris  competent  to  make  it  effectual 
as  a  contract.  Hence  a  married 
woman  is  not  estopped  by  her  cove- 
nants. Plainly  the  wife  was  not 
competent  to  purchase  supplies  for 
the  plantation  of  her  husband,  and 


therefore  cannot  be  estopped  by 
these  recitals :  Bigelow  on  Estoppel, 
276;  Jackson  v.  Vanderheyden,  17 
Johns.  167,  8  Am.  Dec.  378." 

*  Jackson  v.  Allen,  120  Mass.  64; 
Right  v.  Bucknell,  2  Barn.  &  Adol. 
278;  Lainson  v.  Tremere,  1  Ad.  & 
E.  792;  Kepp.  v.  Wiggett,  10  Com. 
B.  35;  Salter  v.  Kidley,  1  Show. 
59.  Where  the  consideration  is  a 
sum  in  cash,  "and  the  balance,  by  the 
assuming  on  the  part  of  the  said 
grantee's  part  to  pay  the  mort- 
gage," existing  upon  the  prop- 
erty as  security  for  the  grantor's 
note,  this  recital,  in  the  absence  of 
evidence  of  a  contrary  intention, 
shows  an  agreement  on  the 
grantee's  part  to  pay  the  mortgage 
debt,  and  not  simply  to  secure  a 
discharge  of  the  mortgage  lien  upon 
the  land:  Lewis  v.  Covillaud,  21 
Cal.   178. 

5  Abbott  V.  Curran,  98  N.  Y.  665. 
While  a  party  claiming  under  a 
deed  is  estopped  from  denying  any 
of  the  material  recitals  in  it,  this 
rule  does  not  apply  to  those  claim- 
ing adversely,  or  by  title  acquired 
prior  to  the  execution  of  the  deed : 
Cobb  V.  Oldfield,  151  III.  540,  42 
Am.  St.  Rep.  263. 


CHAP.    XXVIII.]  RECITALS.  1881 

sufficient  to  put  a  purchaser  upon  inquiry  may  charge  him  with 
knowledge  that  the  property  is  subject  to  a  charge,  lien  or  in- 
cumbrance.^ 

§  993.  Recital  that  grantee  is  a  beneficiary. — Where 
a  trustee  executes  a  deed  reciting  that  the  grantee  is  one  of 
the  beneficiaries  to  whom  the  trustee  was  required  to  convey 
under  the  terms  of  the  trust,  such  recital,  in  a  suit  in  eject- 
ment by  the  grantee  against  one  who  does  not  himself  claim 
to  be  a  beneficiary,  is  sufficient  evidence  of  the  facts  recited. 
Thus,  where  the  title  to  lands  within  the  limits  of  a  city  is 
held  by  the  city  as  a  trustee  for  the  parties  in  possession,  to  be 
conveyed  to  them  upon  compliance  with  certain  conditions,  a 
party  who  has  no  claim  to  the  land  cannot  raise  the  question 
whether  the  grantee  in  a  deed  executed  by  the  city  authorities 
was  a  beneficiary,  and  as  such  entitled  to  a  deed.''  A  grantee 
relies  at  his  peril  upon  recitals  in  his  deed  that  the  grantor  is 
the  sole  heir  and  legatee  of  the  former  owner,  and  cannot  in- 
voke such  recitals  as  an  estoppel  against  persons  entitled  under 

« Jennings  v.  Bloomfield,  199  Pa.  Supp.  191,  9  App.  Div.  306,  75  N. 
638,  49  Atl.  135;  Atlanta  Land  &  Y.  St.  Rep.  639;  Robinson  v. 
Loan  Co.  v.  Haile,  106  Ga.  498,  32  Owens,  103  Tenn.  91,  52  S.  W. 
S.  E.  606;  Walls  v.  State,  140  Ind.  870;  Shuttleworth  v.  Kentucky 
16,  38  N.  E.  177;  Taylor  v.  Mitchell,  Coal,  Iron  &  Dev.  Co.,  22  Ky.  L. 
58  Kan.  194,  48  Pac.  589 ;  O'Ma-  Rep.  1806,  61  S.  W.  1013 ;  Summer- 
honey  V.  Flanagan,  34  Tex.  Civ.  viUe  v.  King,  98  Tex.  332,  83  S.  W. 
App.  244,  78  S.  W.  245;  Costello  680;  De  Bajligethy  v.  Johnson,  23 
V.  Graham,  9  Ariz.  257,  80  Pac.  Tex.  Civ.  App.  272,  56  S.  W.  95; 
336;  Waggoner  v.  Dodson,  96  Tex.  McDaniel  v.  Harley,  42  S.  W.  323. 
415,  73  S.  W.  517;  International  '  McGreery  v.  Sawyer,  52  Cal. 
Dev.  Co.  v.  Howard,  113  Ky.  450,  257;  McCreery  v.  Duane,  52  Cal. 
68  S.  W.  459 ;  Equitable  Loan  &  293.  As  to  the  effect  of  the  recital 
Security  Co.  v.  Lewman,  124  Ga.  in  a  will  of  deeds  executed  by  the 
190,  3  L.R.A.(N.S.)  879,  52  S.  E.  grantor  in  his  lifetime,  see  In  re 
599;  Carter  v.  Leonard,  65  Neb.  Heydenfeldt,  106  Cal.  434.  See, 
670,  91  N.  W.  574 ;  Flanary  v.  Kane,  also,  §  284a,  ante.  See,  also,  Souk- 
102  Va.  547,  46  S.  E.  312;  Eyring  up  v.  Union  Ins.  Co.,  84  Iowa,  448, 
V.    Hercules    Land    Co.,   41    N.    Y.  35  Am.  St.  Rep.  317,  51  N.  W.  167. 


1882  THE    LAW    OF    DEEDS.  [CHAP.    XXVIlt. 

the  will  of  the  former  owner  to  remainder  interests  in  the 
land."  The  fact  that  a  deed  recites  that  the  parties  are  the 
heirs  of  a  preceding  owner  renders  it  evidence  as  to  the  truth 
of  the  recital  only  against  the  parties  and  their  privies.'  A 
recital  in  a  deed  relative  to  prior  conveyances  is  evidence  of  the 
fact  as  stated  and  establshes  it  prima  facie} 

'  §  994.  Recital  as  surplusage. — Recitals  are  to  be  con- 
strued as  are  other  parts  of  the  deed.  In  endeavoring  to  as- 
certain and  effectuate  the  intention  of  the  parties,  courts  may 
transpose  clauses  or  strike  them  out  altogether.  In  applying 
this  familiar  principle  to  recitals,  we  may  select  a  case  which 
we  have  had  occasion  to  cite  before  as  establishing  the  prin- 
ciple that  a  void  deed  is  incapable  of  confirmation.^  In  this 
case  a  deed  being  void,  a  recital  in  a  second  deed  that  it  was 
executed  to  confirm  the  former  deed,  the  court  declared,  miglit 
be  treated  as  surplusage.  Consequently  the  second  deed,  with 
this  rejection,  if  valid  in  other  respects,  would  be  sufficient  to 
pass  the  title.' 

§  995.     History  of  title. — A  grantor  who  recites  a  his- 
tory of  his  title  in  his  deed  is  estopped  from  denying  it  against 

8  Weigel  V.  Green,  218  III.  227,  75  *  Merriman  v.  Blalack,  (Tex.  Civ. 
N.  E.  913.  App.)   121  S.  W.  552.    A  recital  in 

9  Dixon  V.  Monroe,  112  Ga.  58,  a  deed  as  to  the  consideration  price 
37  S.  E.  180.  While  the  parties  to  is  evidence:  Robertson  v.  Hefley 
a  deed  are  bound  by  the  recitals,  (Xex.  Civ.  App.),  118  S.  W.  1159. 
strangers  are  not ;  Hughes  v.  Rose,  s  See  vol.  1,  §  18. 

163   Ala.  368,   50   So.   899.     A  re-  3  g^^.^  ^    Schroeder,  32  Cal.  609. 

cital  in  a  deed  of  the  payment  of  ^^.^^  Rhodes,  J.  (p.  618)  :  "Strike 
the    consideration    is    presumptive      ^^^  ^^  ^^^  ^^^^  ^^^  ^^^^^^^  j^  ^^. 

evidence  of  that  fact.     Voorhies  v.  .  .     ^1         •  <.  1  ^    ^„a  +i,»  ^.^r. 

■lorv  M    -^r    c  Ann    cf.  spect  to  the  mistake,  and  the  con- 

Voorhies,  120  N.  Y.  Supp.  6/7,  66  /        .  ,    ,      ,     ,    ..,1 

,,.  -d'  -o  c  tvt  ^11  „  firmation  and  the  deed  still  remains 
Misc.    Rep.    78.      See    Maxwell    v.  . 

McCall,    (Iowa),    124   N.   W.   760.  sufficient  m  law  to  pass  the  title 

Recitals  as  to  consideration  are  not  Those  matters  must  be  disregarded 

evidence  against  strangers,  Doty  v.  because    they    were    impossible    of 

Bitner,  82  Kan.  551,   108  Pac.  858;  accomplishment  in  that  mode.    The 

Kruse  v.  Conklin.  82  Kan.  ZS%  108  deed  is  not  vitiated  by  their  pres- 

Pac.  856.  ence." 


CHAP.    XXVIII.]  RECITALS.  1883 

persons  who  have  acted  upon  the  faitli  of  such  representations. 
A  grantor  who  recites  in  a  deed  of  warranty  that  a  certain 
tract  of  land  had  been  conveyed  to  him,  is  not  permitted  to 
deny  this  fact  in  a  suit  brought  against  him  by  his  grantee,  or 
a  purchaser  from  the  grantee.*  But  as  between  the  original 
parties  a  recital  unnecessary  to  the  conveyance  will  not  oper- 
ate as  an  estoppel.^  A  person  executing  a  deed  in  behalf  of 
a  manufacturing  company,  and  reciting  that  he  has  authority 
by  a  vote  of  the  company  to  execute  such  deed,  is  estopped  to 
deny  that  he  had  such  authority.* 

§  996.  Stranger  to  title. — But  a  stranger  cannot  claim 
the  benefit  of  recitals  as  estoppels  against  a  party  to  the  deed. 
An  owner  of  land  sold  it  in  twenty- fourth  parts,  and  some  of 
the  grantees  subsequently  joined  with  him  in  the  execution  of 
a  mortgage  to  a  stranger  which  contained  a  recital  that  the 
former  owner  was  the  owner  of  eleven  twenty-fourths.  After 
the  execution  of  the  mortgage,  and  before  its  registration,  a 
creditor  of  such  owner  attached  the  land,  and  on  execution 
bought  the  land.  He  then  brought  an  action  of  ejectment 
against  the  persons  in  possession,  the  original  owner's  former 
tenants,  and  they  alleged,  in  defense,  that  such  original  owner 
had  no  title  when  the  attachment  was  served.  The  purchaser 
at  the  execution  sale  relied  on  the  recital  in  the  mortgage  as  an 
estoppel ;  but  the  court  held  that  the  recital  could  not  operate 

*  Green  v.  Clark,  13  Vt.  158.    See  231 ;    Goodtitle    v.    Bailey,    Cowp. 

McCreery  v.  Duane,  52  Cal.  293.  597;  Bensley  v.   Burdon,  2  Sim.  & 

5  Osborn  v.  Endicott,  6  Cal.  149,  St.  524 ;  Marchant  v.  Errington,  8 
65  Am.  Dec.  498.  Scott,  210;   Adams  v.  Lansing,   17 

6  Stow  V.  Wise,  7  Conn.  214,  18  Cal.  629.  Recitals  in  a  deed  of  an 
Am.  Dec.  99.  And  see  Douglass  v.  administrator  of  the  steps  required 
Scott,  5  Ohio,  195 ;  Clark  v.  Baker,  by  law  to  make  a  sale  are  prima 
14  Cal.  612,  629,  76  Am.  Dec.  449;  facie  evidence  of  the  facts  recited: 
Van  Rensselaer  v.  Kearney,  11  Worthy  v.  Johnson,  8  Ga.  236,  52 
How.  322,  13  L.  ed.  713;  Carver  v.  Am.  Dec.  399;  Doe  v.  Henderson, 
Jackson,  4  Peters,   1,  85,  7  L.  ed.  4  Ga.  148,  48  Am.  Dec.  216. 

761,  791 ;  Penrose  v.  Griffin,  4  Binn. 


1884 


THE   LAW    OF    DEEDS. 


[chap.    XXVIIL 


as  an  estoppel  in  favor  of  the  purchaser  at  execution  sale  and 
against  the  defendants.'    Likewise  the  taking  of  a  deed  con- 
taining a  recital  that  the  premises  are  "subject  to  a  mortgage," 
cannot  be  construed  to  import  a  promise  on  the  part  of  the 
purchaser  to  pay  such  mortgage  debt."     Nor,   if  such  evi- 
dence be  wanting,  can  the  title  be  established  by  showing  that 
the  heirs  at  law  of  the  person  deceased  received  the  consider- 
ation money.^    Where  a  deed  contains  a  recital  that  "the  un- 
dersigned  are  owners  and  part  owners  of  the  within-described 
land,"  it  is  held  that  in  the  absence  of  words  of  limitation,  the 
title  of  those  who  sign,  although  all  do  not  sign,  is  conveyed.* 
In  an  action  of  ejectment,  when  a  deed  executed  by  one  of 
the  parties  to  the  action,  but  to  which  the  other  party  is  an 
entire  stranger,  is  introduced  in  evidence  in  the  action,  any 
recitals  contained  in  it  can  be  used  only  as  simple  admissions 
made  by  the  party  who  executed  the  deed.'^     Where  a  deed 
executed  by  one  tenant  in  common  to  a  stranger  refers  to  cer- 
tain incidents  of  the  joint  estate,  the  other  tenant  is  not  es- 


TSunderlin  v.  Struthers,  47  Pa. 
St.  411.  The  court  said  that  it  was 
"an  unprecedented  extension  of  the 
doctrine  of  equitable  estoppel,  to 
hold  that  a  man  is  bound  to  the 
world  to  make  good  what  he  has 
said  to  anyone,  if  others  choose  to 
rely  upon  it.  If  every  man  may  be 
held  liable,  not  only  to  parties  and 
privies  to  his  deed,  but  to  all  man- 
kind, to  make  good  every  intro- 
ductory recital  which  the' deed  con- 
tains, it  behooves  him  to  avoid  all 
recitals,  and  be  careful  what  scriv- 
ener he  employs.  Such  is  not  the 
law,  and  there  are  no  authorities 
which  assert  it."  See,  also,  Allen 
V.  Allen,  45  Pa.  St.  468,  473;  Rob- 
bins  V.  McMillan,  26  Miss.  434; 
Whitaker  v.  Garnett,  3  Bush,  402, 
Weigel   V.   Green,   218   111.   227,   75 


N.  E.  913;  McCorkell  v.  Herron, 
128  la.  324,  103  N.  W.  988  (citing 
text)  ;  Uvalde  County  v.  Oppen- 
heimer  (Tex.  Civ.  App.),  115  S.  W. 
904 ;  Hagan  v.  Holderby,  62  W.  Va. 
106,  57  S.  E.  289,  and  see  Lanier  v. 
Hebard,  123  Ga.  626,  51  S.  E.  632. 

8  Capitol  Nat.  Bank  v.  Holmes, 
43  Colo.  154,  16  L.R.A.(N.S.)  470, 
95  Pac.  314,  127  Am.  St.  Rep.  108. 

9  Miller  v.   Miller,  63  Iowa,  387. 

1  St.  Louis  v.  Wiggins'  Ferry  Co., 
15  Mo.  App.  227.  As  to  recitals 
in  a  deed  made  by  a  mortgagee 
under  a  power  of  sale,  see  Tartt  v. 
Clayton,  109  111.  579. 

2  Franklin  v.  Borland,  28  Cal. 
175,  87  Am.  Dec.  111.  See  as  to 
recital  of  heirship,  Potter  v.  Wash- 
burn, 13  Vt.  558,  27  Am.  Dec.  615. 


CHAP.    XXVIII.]  RECITALS.  1885 

topped  by  the  recital.'  A  recital  in  a  deed  that  the  grantors 
are  the  widow  and  heirs  of  a  person  who  has  a  record  title,  is 
not  competent  evidence  of  the  truth  of  the  matters  recited 
ag-ainst  a  stranger.*  If  it  be  sought  to  establish  title  to  real 
estate  derived  from  one  deceased,  the  executor's  deed  alone  is 
not  sufficient.  The  probate  of  the  will  and  lawful  proceedings 
ending  in  the  execution  of  the  deed  must  also  be  shown.  The 
recitals  in  the  executor's  deed  are  not  competent  to  establish 
their  truth  as  against  persons  not  in  privity  with  the  grantor.* 
So  a  recital  in  a  deed  that  the  party  making  it  is  an  heir  at  law 
of  a  former  owner,  is  no  evidence  of  the  fact  recited  except 
as  against  parties  to  the  deed  and  their  privies.^ 

§  997.  Parties  bound  by  recitals. — Where  it  appears 
from  the  deed  that  all  the  parties  intend  to  admit  certain 
facts  as  true,  a  recital  in  the  deed  of  such  facts  is  an  estoppel 
upon  all.  If  the  recital  is  intended,  however,  to  be  the  state- 
ment of  but  one  party,  such  party  only  is  estopped,  and  what 
the  intention  is,  is  to  be  gathered  from  the  deed.'  If  the  lan- 
guage of  the  recitals  indicates  that  the  scrivener  did  not  have 
the  deed  recited  before  him,  and  such  recitals  refer  to  what 
the  grantors  have  done,  or  intend  to  do  among  themselves,  in 
which  acts  the  grantees  have  no  part  or  interest,  and  there  is 
nothing  to  show  that  the  grantees  had  any  knowledge  of  the 
recited  deed  except  as  recited,  the  recitals  will  be  considered 

'Thomason  v.   Dayton,  40  Ohio  Zl  S.  E.   180;  Mining  Co.  v.  Irby, 

St.   63.     A   deed   reciting  that   the  40  Ga.  479;   Hanks  v.   Phillips,  39 

grantors  are  the  heirs  of  a  previous  Ga.  550. 

owner  of  the  land,  is  not  sufficient  '  Bower  v.  McCormick,  23  Gratt. 

evidence  as   against  a   stranger  of  310.     See  Stronghill  v.  Buck,  14  Q. 

the  death  of  the  named  ancestor,  or  B.  781;  Joeckel  v.  Easton,  11  Mo. 

that  the   grantors    are   in   fact  his  118,  47  Am.  Dec.  142;  Blackhall  v. 

heirs:     Kelley  v.  McBlain,  42  Kan.  Gibson,  2  Law  Rec.  49;  Thompson 

764.  V.  Thompson,   19  Me.  235,  Z(>  Am. 

*  Co.stello  V.  Burke,  63  Iowa,  361.  Dec.    751;    Young    v.    Raincock,    7 

5  Miller  v.   Miller,  63  Iowa,  387.  Conn.  B.  310;  Simson  v.  Eckstein, 

•Dixon  V.  Monroe,  112  Ga.  158,  22  Cal.  580. 


1886  THE   LAW    OF   DEEDS.  [CHAP.    XXVIII. 

the  statement  of  the  grantors  only."  An  instrument  which 
purported  to  be  a  will,  recited  that  the  testator  had  already 
distributed  to  his  sons  different  tracts  of  land,  and  "which 
lands  I  have  already  divided  amongst  my  sons  as  a  donation 
inter  vivos,  to  their  entire  satisfaction,  and  which  donation 
by  these  presents  I  do  hereby  ratify."  The  court  held  that  the 
heirs  of  the  person  executing  such  instrument,  and  all  persons 
claiming  under  them,  were  estopped  by  these  recitals  from  as- 
serting that  a  title  did  not  pass,  and  that  the  intention  of  the 
instrument  was  to  vest  a  title  immediately,  and  not  to  make 
a  testamentary  disposition,  and  that  by  these  recitals  the  sons 
took  title  by  way  of  ratification  of  the  previous  gift.'  Like- 
wise a  recital  in  a  deed  conveying  land  devised  to  "Mary  E. 
Newlin,"  that  the  grantor  "Mary  E.  Kurtz"  was  formerly 
"Mary  E.  Newlin"  is,  in  the  absence  of  controverting  evidence, 
conclusive  on  the  issue  of  the  identity  of  the  grantor.^  But 
where  the  defendant,  in  trespass  to  try  title  is  charged  by 
recitals  in  his  deed  with  notice  of  the  plaintiff's  title  the  court 
may  exclude  testimony  that  he  was  an  innocent  purchaser.'' 
Where  a  quitclaim  deed  is  given  by  the  grantee  in  a  deed  on 
the  foreclosure  of  a  trust  deed  in  which  a  building  and  loan 
association  was  the  beneficiary  the  person  claiming  under  the 
quitclaim  deed  is  charged  with  notice  of  the  terms  of  the 

8  Bower  v.  McCormick,  23  Gratt.  West  v.  Pine,  4  Wash.  691 ;  Chau- 

310,  and  cases  cited;  Borst  v.  Cor-  tauqua    County   Bank   v.    Risley,   4 

ey,   16  Barb.   136.     See  Osborne  v.  Den.  480;  Jackson  v.  Parkhurst,  9 

Endicott,  6  Cal.   149,  65  Am.   Dec.  Wend.    209;    Stoutimore   v.    Clark, 

498.    An  estoppel  binds  the  grantor  70  Mo.  471 ;  Hasenritter  v.  Kirch- 

and  his  privies:  Rangely  v.  Spring,  hoffer,  79  Mo.  239;  Usina  v.  Wilder, 

28    Me.    127;    Doe    v.    Howell,    1  58  Ga.  178. 

Houst.  178;  Simson  v.  Eckstein,  22  »  Adams  v.  Lansing,  17  Cal.  629. 

Cal.  580;  Doe  v.  Porter,  3  Ark.  18,  i  Haney  v.  Gartin,  51   Tex.   Civ. 

36  Am.  Dec.  448;  Carver  v.  Jack-  App.  577,  113  S.  W.  166. 

son,  4  Pet.  1,  7  L.  ed.  761;  Kins-  2  Texas  Tram  &  Lumber  Co.  v. 

man    v.     Loomis,     11     Ohio,    475;  Givin,  29  Tex.  Civ.  App.  1,  67  S.  W. 

Byrne   v.   Morehouse,   22   111.   603 ;  892,  68  S.  W.  721. 
Pinckard  v.   Milmine,   76  111.  453; 


CHAP.    XXVIII.]  RECITALS.  1887 

trust  deed  and  of  the  constitution  and  by  laws  of  the  building 
and  loan  association  referred  to  in  the  trust  deed.^  Where  a 
deed  recites  that  "The  above  piece  of  land  is  covered  by  the 
north  branch  canal  and  embankment,"  this  recital,  while 
some  evidence  that  the  land  belonged  to  the  State,  is  not  con- 
clusive.* If  a  creek  flows  through  the  grantor's  land,  and  a 
deed  recites  that  the  grantee  is  about  to  divert  and  appropriate 
its  waters,  and  grants  a  right  of  way  to  conduct  the  water  over 
the  grantor's  land,  the  grantor  is  not  estopped  from  denying 
the  right  of  the  grantee  to  divert  the  water.®  An  estoppel 
must  be  certain,  and  in  the  case  just  cited  there  was  no  direct 
grant  of  any  water  or  of  the  right  of  diversion.  As  the  court 
said :  "There  is  nothing  in  the  recital  that  is  inconsistent  with 
the  theory  that  the  defendant  had  acquired  a  right  which  it 
now  sets  up;  nor  is  there  anything  in  it  that  is  inconsistent 
with  the  theory  that  it  had  not  acquired,  but  confidently  expect- 
ed to  acquire  it."  In  other  words,  an  admission  that  a  per- 
son has  a  right  to  divert  water  cannot  be  found  on  a  recital 
that  he  is  about  to  divert  it.^  Likewise,  although  recitals  are 
of  aid  in  construing  the  deed,  they  cannot  be  allowed  to  con- 
trol or  diminish  the  estate  expressly  and  clearly  granted ;  ^  that 

sCobe  V.  Lovan,   193  Mo.  235,  4  Tenn.  358,  100  S.  W.  739;  Hardin 

L.R.A.(N.S.)  439,  112  Am.  St.  Rep.  County  v.  Mills   (Tex.  Civ.  App.), 

480,  92   S.  W.  93.  112  S.  W.  822.    A  recital  in  a  con- 

*  Pennsylvania  &  New  York  veyance  of  a  municipal  corpora- 
Canal  Co.  V.  Billings,  94  Pa.  St.  40.  tion  of  facts  without  the  existence 

5  Zimmler  v.  San  Luis  Water  Co.,  of  which  it  would  be  unauthorized, 
57  Cal.  221.  is  evidence  of  the  facts  recited,  and 

6  See  Zimmler  v.  San  Luis  Water  no  additional  evidence  is  required 
Co.,  57  Cal.  221.  That  recitals  as  in  support  of  the  deed:  Gordon  v. 
between  the  parties  are  to  be  tak-  City  of  San  Diego,  101  Cal.  522,  40 
en  as  evidence  of  their  truth,  see  Am.  St.  Rep.  72>. 

Williamson  V.  Mayler,  117  Ala.  253,  'Tate    v.    Clement,    176    Pa.    St 

23    So.   3;    Rucker   v.    Hyde,    118      550,  35  Atl.  214. 


1888  THE    LAW    OF    DEEDS.  [CHAP.    XXVIIL 

is  to  say  a  grant  cannot  be  diminished  by  a  mere  recital  in  the 
description  or  elsewhere.' 

§  998.  Recognition  of  title  in  another. — A  person  may 
be  estopped  from  asserting  title  in  himself  by  acts  recognizing 
title  in  another.  If  a  person  procures  an  order  of  court  for 
the  sale  of  land  on  the  assumption  tliat  the  land  is  claimed 
by  the  county,  and  in  the  order  of  sale  the  land  is  described  as 
land  "formerly  owned"  by  the  person  who  procures  the  order, 
he  is  estopped  from  denying  or  revoking  this  recognition  of 
title  when  a  third  person  has  acted  upon  it  by  a  purchase  of 
the  land  from  the  county,  paid  the  purchase  money,  and  erect- 
ed improvements.®  But  a  grantor  executing  a  deed  confirm- 
ing a  former  one  to  which  he  was  not  a  party,  does  not  adopt 
the  recitals  of  the  former  deed  so  as  to  be  estopped  by  them, 
unless  language  showing  this  intention  is  used.^  If  a  deed 
recites  the  making  of  a  previous  agreement  the  recital  is  equiv- 
alent to  renewing  the  agreement  and  the  recital  will  sustain 
an  action.^  The  recitals  contained  in  a  deed  resulting  from  a 
sale  under  a  power  of  sale  in  a  mortgage  of  the  regularity  of 
the  sale  are  to  be  deemed  prima  facie  true.'  A  recital  in  a 
deed  that  certain  persons  have  requested  its  execution  will 
nOf  pass  their  title.* 

§  999.  General  recitals. — In  order  that  a  recital  may 
have  the  effect  of  an  estoppel,  it  is  essential  that  it  be  certain. 
Hence,  as  the  element  of  certainty  is  lacking  in  general  re- 
citals, they  do  not,  as  a  general  proposition,  estop  the  parties 

8  Tate   V.    Clement,   supra.  grantor's   homestead :     Williams  v. 

9  Stevenson  v.  Saline  County,  65       Swetland,  10  Iowa,  51. 

jyj      425  ^  ^^^1    '^'-    Hancock's    Admr's,   82 

1  Doe   ex  dem.   Shelton  v.   Shel-  <i\wii"  nr  ht    ai 

•*  Williamson  v.   Mayer,    11/  Ala. 
ton,  3  Ad.  &  E.  265.     The  parties       253    23  So    3 

may  be  estopped  by  recitals  showing  4  Chapman    v.    Crooks,   41    Mich. 

that    the    land    conveyed    was    th?      595,  2  N.   W.  924. 


CHAP.    XXVIII.]  RECITALS.  1889 

from  denying  the  truth  of  the  matters  recited.'  An  estoppel 
does  not  result  from  statements  which  are  immaterial  to  the 
objects  of  the  deed.  Thus,  where  a  lot  is  excepted  out  of  the 
land  described  in  the  deed,  and  the  clause  containing  the  ex- 
ception states  that  such  lot  "remains  vested"  in  the  grantor, 
the  grantee  is  not  estopped  from  asserting  title  subsequently 
acquired  to  the  excepted  piece  through  a  source  hostile  to  the 
grantor's  title.*  A  recital  that  one  of  the  grantors  is  a  feme 
covert  does  not  estop  either  party  from  showing  that  she  was  a 
feme  sole  at  the  time  of  the  execution  of  the  deed.' 

§  1000.  Notice  from  recitals. — It  is  a  familiar  prin- 
ciple that  every  person  taking  ^  deed  is  charged  with  notice 
of  all  recitals  contained  in  the  instruments  making  his  chain 
of  title.  "The  principle  of  equity  is  well  established  that  a 
purchaser  of  land  is  chargeable  with  notice,  by  implication,  of 
every  fact  affecting  the  title  which  would  be  discovered  by 
an  examination  of  the  deeds,  or  other  muniments  of  title  of 
his  vendor,  and  of  evary  fact  as  to  which  the  purchaser,  with 
reasonable  prudence  or  diligence,  ought  to  become  acquainted. 
If  there  is  sufficient  contained  in  any  deed  or  record,  which 
a  prudent  purchaser  ought  to  examine,  to  induce  an  inquiry  in 
the  mind  of  an  intelligent  person,  he  is  chargeable  with  knowl- 
edge or  notice  of  the  facts  so  contained."  ®     Thus,  where  the 

5  Doe  ex  dem.  Butcher  v.  Mus-  v.  Ingersoll,  15  Pa.  St.  343;  Willis 
grave,  1  Man.  &  G.  615;  Right  v.  v.  Gray,  48  Tex.  463,  26  Am.  Rep. 
Buckner,  2  Barn.  &  Adol.  278;  Nag-  328;  Sitdham  v.  Matthews,  29  Ark. 
lee  V.  Ingersoll,  7  Pa.  St.  185;  650;  Wood  v.  Krebbs,  30  Gratt. 
Right  V.  Bucknell,  2  Barn.  &  Adol.  708;  Baker  v.  Mather,  25  Mich.  51; 
278.  And  see  Farrar  v.  Cooper,  34  Pcingle  v.  Dunn,  2)7  Wis.  449,  19 
Me.  394.  Am.  Rep.  772;  Sigourney  v.  Munn, 

6  Champlain  &  St.  Lawrence  R.  7  Conn.  324;  Major  v.  Buckley,  51 
R.  V.  Valentine,  19  Barb.  484.  Mo.    227;    Rafferty    v.    Mallory,    3 

'  Brinegar  v.  Chaffin,  3  Dev.  108,  Biss.  362,  369;  Burrus  v.  Roulahac's 

22  Am.  Dec.  711.  Administrator,  2  Bush,  39;  Corbitt 

8  Cambridge  Valley  Bank  v.  De-  v.  Clenny,  52  Ala.  480;   Phillips  v. 

lano,  48  N.  Y.  329,  336;  Sergeant  Porter,  3  Ark.  18,  36  Am.  Dec.  448; 
Deeds,  Vol.  U.— 119 


1890 


THE   LAW  OF  DEEDS. 


[chap,  xxvin. 


deed  under  which  a  mortgagor  holds  refers  to  a  prior  unre- 
corded mortgage,  a  second  mortgagee  will  take  subject  to  the 
first.'  The  same  principle  applies  where  a  person  sells  a  tract 
of  land,  and  does  not  take  a  mortgage  for  the  purchase  money, 
but  recites  in  his  deed  the  terms  of  the  sale,  and  describes  the 
notes  which  he  has  taken  for  the  unpaid  purchase  money.  A 
purchaser  before  the  maturity  of  the  notes  has  notice  of  the 


Payne  v.  Abercrombie,  10  Heisk. 
161 ;  Deason  v.  Taylor,  53  Miss. 
697;  Blaisdell  v.  Stevens,  16  Vt. 
179;  White  v.  Foster,  102  Mass. 
375,  380;  Burwell's  Executors  v. 
Fauber,  21  Gratt.  446;  Johnson  v.^ 
Thweatt,  18  Ala.  741;  French  v.' 
Loyal  Company,  5  Leigh,  627;  Unit- 
ed States  Mortgage  Co.  v.  Gross, 
9Z  111.  483;  Foster  v.  Strong,  5 
Bradw.  (111.)  223;  Wallace  Gress 
V.  Evans,  1  Dak.  Ty.  387 ;  Wiseman 
V.  Hutchinson,  20  Ind.  40;  Parke 
V.  Neeley,  90  Pa.  St.  52.  See,  also, 
Boggs  V.  Varner,  6  Watts  &  S. 
469;  Honore's  Executor  v.  Black- 
well,  6  Mon.  B.  67,  43  Am.  Dec. 
147 ;  Reeves  v.  Vinacke,  1  McCra- 
ry,  213 ;  Moore  v.  Bennett,  2  Ch. 
Cas.  Ch.  246;  Greenfield  v.  Ed- 
wards, 5  De  Gex,  J.  &  S.  582 
Robson  V.  Flight,  4  De  Gex,  J.  & 
S.  608;  Bacon  v.  Bacon,  Toth.  133 
Moore  v.  Bennett,  2  Ch.  Cas.  Ch 
246;  iEtna  Life  Ins.  Co.  v.  Ford 
89  111.  252;  McConnell  v.  Reed 
4  Scam.  202;  Frye  v.  Partridge 
82  111.  267,  270;  Rupert  v.  Mark 
IS  111.  540;  Morrison  v.  Kelly,  22 
III.  610,  74  Am.  Dec.  169;  Chicago 
etc.  R.  R.  V.  Kennedy,  70  111.  350, 
562;  Merrick  v.  Wallace,  19  111.  486; 
Morris  v.  Hogle.  37  III.  150,  87  Am. 
Dec.  243;  Croskey  v.  Chapman,  26 


Ind.  ZZZ;  Allen  v.  Poole,  54  Miss. 
323 ;  Johnston  v.  Gwathmey,  4  Litt. 
317,  14  Am.  Dec.  135;  Dudley  v. 
Witter,  46  Ala.  664;  Green  v.  Early, 
39  Md.  223;  Ridgeway  v.  Holliday, 
59  Mo.  444;  Frost  v.  Beewman,  1 
Johns.  Ch.  288;  Campbell  v.  Roach, 
45  Ala.  667;  Burch  v.  Carter,  44 
Ala.  115;  Case  v.  Erwin,  18  Mich. 
434;  Baker  v.  Mather,  25  Mich.  51; 
Brush  V.  Ware,  15  Peters,  93 ;  Clem- 
ents V.  Wells,  Law  R.  1  Eq.  200; 
Pilcher  v.  Rawlins,  Law  R.  11  Eq. 
53 ;  Davies  v.  Thomas,  2  Younge  & 
C.  234;  Murrell  v.  Watson,  1  Tenn. 
Ch.  342;  Acer  v.  Westcott,  1  Lans. 
193;  Christmas  v.  Mitchell,  3  Ired. 
Eq.  535 ;  Malpas  v.  Ackland,  3  Russ. 
273;  Casey  v.  Inloes,  1  Gill.  430, 
39  Am.  Dec.  658;  Kerr  v.  Kitchen, 
17  Pa.  St.  433;  Long  v.  Weller's 
Executors,  29  Gratt.  347,  353 ;  lou- 
den V.  Alden,  23  Pick.  184,  34  Am. 
Dec.  51 ;  Fitzhugh  v.  Barnard,  12 
Mich.  105;  Dean  v.  Long,  122  111. 
447,  14  N.  E.  Rep.  34;  Smith  v. 
Lowry,  113  Ind.  2>7,  15  N.  E.  Rep. 
17;  Wait  v.  Baldwin,  60  Mich.  622, 
1  Am.  St.  Rep.  551,  27  N.  W.  Rep. 
697;  Whitlock  v.  Johnson,  87  Va. 
323,  12  S.  E.  Rep.  614;  Weigel  v. 
Green,  218  111.  227,  75  N.  E.  913. 
9  Buchanan  v.  Balkum,  60  N.  H. 
406;  Fifield  v.  Elmer,  25  Mich.  51. 


CHAP.    XXVIII.]  RECITALS.  1891 

vendor's  lien,  by  reason  of  the  recitals  in  the  deed.*  An  own- 
er of  land  executed  a  mortgage,  and  three  years  after  its  exe- 
cution the  mortgage  was  foreclosed,  and  the  premises  con- 
veyed to  the  mortgagee.  The  deed  to  the  mortgagee  was  not, 
however,  recorded  in  the  proper  county.  Some  time  after- 
ward, the  original  mortgagee  to  whom  the  deed  was  made,  as 
stated,  transferred  the  land  by  deed,  which  was  properly  re- 
corded. Twenty-four  years  after  the  execution  of  the  mort- 
gage, the  mortgagor  made  a  deed  of  the  same  property  sub- 
ject to  the  mortgage,  and  described  it  as  given  in  "1830  or 
1831."  It  was  held,  very  properly,  that  the  grantee  had  notice 
of  the  mortgage,  and  of  the  fact  that  it  was  unpaid,  and  he 
had  every  reason  to  believe  after  the  lapse  of  the  long  period 
of  twenty-four  years,  that  it  had  been  foreclosed.  Conse- 
quently the  grantee  took  subject  to  the  mortgage,  and  to  all 
the  rights  which  had  accrued  under  it.^  So  where  there  are 
two  joint  owners  of  land,  a  purchaser  from  one  is  chargeable 
with  notice  of  the  interest  of  the  other,  when  it  appears  by  the 
deed  to  which  he  must  look  for  his  vendor's  title.'  A  pur- 
chaser is  not  bound  by  recitals  in  a  satisfied  mortgage  made 
by  an  owner  whose  title  was  a  link  in  the  chain  of  title.*  A 
person  will  be  charged  with  notice  of  equities  which  appear 
in  his  chain  of  title,*  or  to  which  anything  appearing  in  such 

iCroskey   v.    Chapman,   26    Ind.  223,  IS  S.  W.  Rep.  382;   Boggs  v. 

S33.    So  the  recital  of  a  considera-  Varner,  6  W.  &  S.  469;   Coleman 

tion  may  show  that  a  land  company  v.  Barklew,  27  N.  J.  L.  357 ;  Polk 

has    sold   land    in   violation    of    its  v.   Cosgrove,  4  Biss.  437;   Mueller 

charter :      Franco     Land     Co.,     v.  v.  Engeln,  12  Bush,  441 ;  Burke  v. 

McCormick,   85   Tex.   416,  34   Am.  Beveridge,    15   Minn.  205;   Digman 

St.   Rep.  815.     See  §  710,  ante.  v.  McCollum,  47  Mo.  372;  Tydings 

Spitzhugh  V.    Barnard,    12  Mich.  v.   Pitcher,  82  Mo.  379;   Corbin  v. 

104.  Sullivan,  47  Ind.  356,  40  Am.  Rep. 

3  Campbell  v.  Roach,  45  Ala.  667.  254 ;  Bellas  v.  Lloyd,  2  Watts,  40L 

A   recital,   to   convey   notice,   must  *  Pyles    v.    Brown,    189    Pa.    St. 

be   in   the   chain   of   title:    Hazlett  164,   42   Atl.    11,   69   Am.    St.    Rep. 

V.    Sinclair,    76    Ind.    488,    40    Am.  794. 

Rep.  254 ;  Mason  v.  Black,  87  Mo.  ^  O'Connor    v.     Vineyard     (Tex. 

329;  Knox  Co.,  v.  Brown,  103  Mo.  Civ.  App.)  43  S.  W.  55;  Moore  v. 


1892 


THE  LAW  OF  DEEDS. 


[chap,  xxvni. 


chain  would  lead  him.^  A  recital  in  a  deed  that  the  grantor 
is  the  sole  heir  and  legatee  of  a  certain  person  of  a  certain 
place  charges  the  grantee  with  notice  of  the  terms  of  the  will, 
even  if  the  recorded  copy  of  the  will  fails,  on  account  of  in- 
sufficient authentication  to  operate  as  constructive  notice.''  If 
a  deed  is  executed  in  consideration  of  an  agreement  contem- 
poraneous with  it,  which  is  described  and  referred  to  in  the 
deed,  a  purchaser  from  the  grantee  will  be  bound  by  the 
conditions  of  the  agreement  even  if  it  is  not  then  recorded.' 

§  1001.  Illustrations. — A  person  conveyed  a  piece  of 
land  to  a  trustee  in  trust  to  secure  the  payment  of,  iirsf,  a  debt 
due  to  one  creditor,  and  secondly,  a  debt  due  to  another  cred- 
itor. The  latter  required  the  trustee  to  sell  the  land,  and  the 
owner  began  a  suit  to  enjoin  the  sale,  making  the  trustee  and 
such  second  creditor  parties,  and  with  his  bill  filed  the  deed  as 
an  exhibit.  In  the  decree,  the  trustee  was  appointed  a  special 
commissioner  to  sell  the  land,  and  when  the  land  was  sold 
such  second  creditor  became  the  purchaser.  The  sale  was  con- 
firmed and  approved,  and  the  court  directed  the  trustee  to  con- 
vey the  land  to  such  second  purchaser,  and  to  take  a  deed  of 
trust  upon  it  to  secure  the  purchase  money.  In  accordance 
with  this  direction  the  trustee  conveyed  the  land  to  such  sec- 
ond creditor,  and  in  his  conveyance  referred  to  it  as  the  land 
mentioned  in  the  bill.  When  the  trustee  came  to  take  the  deed 
of  trust,  as  directed,  instead  of  taking  it  upon  this  land,  he 
took  it  upon  another  tract  of  such  second  creditor  which  was 
encumbered  with  other  liens.  Some  eight  years  afterward 
such  second  creditor  conveyed  the  land  by  deed,  the  deed  re- 
ferring to  it  as  the  land  purchased  under  the  decree.  Subse- 
quently the  assignee  of  the  first  creditor  filed  a  bill  against 


Scott  (Tex.  Civ.  App.)  38  S.  W. 
394;  Fitzhugh  v.  Barnard,  12  Mich. 
104. 

6  Robinson  v.    Crenshaw,  84  Va. 
2A%,  5  S.  E.  222. 


'Weigel  V.  Green,  218  111.  227, 
75  N.  E.  913. 

8  Town  V.  Gensch,  101  Wis.  445, 
77  N.  W.  893. 


CHAP.    XXVIII.]  RECITALS.  1893 

the  last  purchaser  to  enforce  the  Hen  of  the  original  deed  of 
trust.  The  purchaser  claimed  that  he  was  a  bona  fide  pur- 
chaser without  notice.  At  the  time  when  he  purchased,  war 
was  being  carried  on  in  the  State,  and  he  alleged  that  as  he 
lived  some  distance  from  the  courthouse,  which,  by  reason 
of  the  war,  was  difficult  of  access,  he  refused  to  purchase  un- 
less his  grantor,  the  second  creditor,  would  bring  a  certificate 
of  the  clerk  of  the  court  that  the  land  was  free  from  all  liens 
and  encumbrances;  and  that  the  clerk,  after  a;i  examination 
of  the  records  of  his  ofifice,  gave  a  certificate,  that,  so  far  as 
shown  by  the  records  of  his  office,  no  lien  or  encumbrance  ex- 
isted on  this  land ;  and  that  on  this  assurance  he  purchased  the 
land,  paid  the  purchase  money,  and  received  his  deed.  On 
this  somewhat  complicated  state  of  facts,  the  court  held  that 
the  purchaser  was  bound  to  know  all  the  matters  disclosed 
by  the  suit,  and  that  his  claim  to  the  defense  of  a  bona  fide 
purchaser  could  not  be  supported  by  the  certificate  of  the 
clerk.^  A  sold  land  to  B,  executing  a  bond  for  a  title,  and  the 
latter,  before  the  full  payment  of  the  purchase  money,  sold 
the  land  to  C,  also  executing  a  bond  for  title,  and  directing 
that  upon  the  payment  of  the  balance  still  due  to  A  that  the 
latter  should  make  a  deed  to  C  retaining  a  lien  for  the  amount 
to  be  paid  to  B  by  C,  which  bond  was  registered.  C  paid  to 
A  the  balance  due  to  him,  and  A  and  C  thereupon  executed 

9  Wood  V.  Krebbs,  30  Gratt.  708.  also  by  constructive  notice,  which 

In  Burwell's  Executors  v.  Fauber,  is  the  same  in  its  effect  as  actual 

21  Gratt.  446,  the  court  say:    "Pur-  notice.     He  must  look  to  the  title 

chasers    are    bound   to    use    a    due  papers   under  which   he  buys,   and 

degree  of  caution  in  making  their  is   charged   with   notice   of   all  the 

purchases,  or  they  will  not  be  en-  facts  appearing  upon  their  face,  or 

titled  to  protection.     Caveat  emptor  to  the  knowledge  of  which   anything 

is   one  of   the  best-settled   maxims  there   appearing  will  conduct  him. 

of  the  law,  and  applies  exclusively  He  has  no  right  to  shut  his  eyes 

to  a  purchaser.    He  must  take  care  or  his  ears  to  the  inlet  of  informa- 

and  make  due  inquiries,  or  he  may  tion,  and  then  say  he  is  a  bona  fide 

not  be  a  bona  fide  purchaser.     He  purchaser    without    notice." 
is   bound   not   only   by   actual,   but 


1894  THE  LAW  OF  DEEDS.  [CHAP.    XXVIII. 

a  deed  to  D.     The  deed  to  D  referred  to  the  registered  bond 
for  title,  but  failed  to  retain  a  Hen.    Subsequently  E,  who  had 
no  actual  notice  of  any  vendor's  lien,  but  who  had  knowledge 
of  the  bond  referred  to  in  the  deed,  bought  the  land  for  full 
value  from  one  who  derived  title  under  D.    It  was  held  that  E 
was  put  upon  inquiry  by  reference  in  the  deed  to  the  bond  for 
title,  and  hence  was  charged  with  constructive  notice  of  its 
contents.^    A  city  conveyed  to  trustees,  by  an  unrecorded  deed, 
land  for  a  cemetery.     Afterward,  when  the  use  of  the  ceme- 
tery had  been  discontinued,  and  some  of  the  bodies  had  been 
removed,  and  others  were  not  disturbed,  the  city,  for  a  valu- 
able consideration,  executed  a  quitclaim  deed  to  a  person,  re- 
ferring to  the  premises  as  a  tract  formerly  dedicated  for  a 
public  cemetery,  and  such  deed  and  the  ordinance  under  which 
it  was  made  were  subsequently  confirmed  by  legislature.     An 
action  was  brought  to  recover  the  land  from  the  trustees,  and 
the  court  held  that  the  quitclaim  deed  by  its  recitals  imparted 
notice  of  the  dedication  of  the  land  by  the  unrecorded  deed, 
and  that  by  the  latter  deed  the  legal  title  passed  to  the  trustees 
and  the  trust  was  still  in  force,  and  hence  a  recovery  of  the 
land  could  not  be  decreed.^    Though  the  instrument  is  not  re- 
corded, and  a  party  may  have  no  actual  notice  of  it,  yet  if  he 
must  trace  his  title  through  it,  he  is  bound  by  whatever  is 
contained  in  it.'     A  mortgage  was  executed  in  Iowa  by  an 
owner  of  a  tract  of  land  to  secure  the  payment  of  several 
promissory   notes,    which    were   described    in    the   mortgage. 
When  the  mortgage  was  spread  upon  the  records,  the  descrip- 
tion of  one  note  was  omitted.     Subsequently  the  mortgagor 
sold  the  premises  and  conveyed  the  same  by  a  deed,  in  which 
reference  was  made  to  the  mortgage,  and  in  the  mortgage  the 
aggregate  amount  of  the  several  notes  was  correctly  stated. 
The  grantee,  it  was  held,  took  the  land  by  force  of  such  re- 

1  Payne  v.  Abercrombie,  10  Heisk.  2  Wcisenberg  v.  Truman,  58  Cal. 

161.  63. 

»Stees  V.  Kraiu,  32  Mina.  313. 


CHAP.    XXVIII.]  RECITALSi  1895 

cital  in  liis  deed,  with  notice  of  the  mortgage  as  security  for 
all  the  notes.*  If  a  grantee  is  placed  on  inquiry,  which  if 
prosecuted  would  lead  to  knowledge  by  the  fact  that  one  wdio 
had  no  title  of  record  joined  in  the  deed  to  him,  a  subsequent 
purchaser  whose  deed  appears  in  such  chain  of  title  will  be 
charged  with  the  same  notice.^  A  recital  in  a  deed  that  the 
grantors  are  husband  and  wife,  whose  names  are  the  same  as 
those  of  the  grantor  and  grantee  in  a  guardian's  deed  to  the 
same  land  is  sufficient  to  convey  notice  to  a  purchaser  that  at 
the  date  of  the  former  deed,  his  grantors  were  husband  and 
wife.^  In  ejectment,  the  plaintiff  is  charged  with  construc- 
tive notice  which  recorded  deeds  contain  or  recite,  constitut- 
ing the  chain  of  title  under  which  defendant  claimed."' 

§  1002.  Failure  to  read  recitals. — Every  person  is  pre- 
sumed to  read  the  deed  under  which  he  holds,  and  a  failure 
to  read  certain  recitals  contained  in  the  deed  cannot  avail  him 
as  a  defense  when  it  is  sought  to  charge  him  with  notice.  A 
person  claimed  title  under  a  deed  which  stated  that  it  was 
made  subject  to  "two  mortgages  for  two  thousand  dollars," 
and  contained  also  a  warranty  against  all  claims  "except  said 
mortgages."  On  the  land  embraced  in  the  deed  there  were 
two  prior  mortgages.  One  of  these,  amounting  to  fifteen 
hundred  dollars,  was  recorded,  and  the  grantee  had  actual 
knowledge  of  it.  Of  the  other  he  had  no  notice  except  such 
as  was  given  by  his  deed.  As  a  matter  of  fact,  the  grantee 
did  not  read  his  deed,  and  did  not  actually  know  of  the  clauses 
referring  to  the  mortgages.  It  v/as  held  that  he  must  be  pre- 
sumed to  know  the  contents  of  his  deed,  and  that  it  was  suf- 
ficient to  put  him  upon  inquiry,  and  to  afifect  him  with  notice 
of  the  mortgage  which  was  not  recorded.*     "Men  of  ordi- 

^Dargin  v.  Beeker,  10  Iowa,  571.  ^  Freeman    v.    Moffitt,    119    Mo. 

5  Creel  v.  Keith,  148  Ala.  233,  41       280,  25  S.  W.  87. 

So.  780.  *  Hamilton  v.  Nutt,  34  Conn.  501. 

6  Frazier  v.  Jeakins,  64  Kan.  615, 
57  L.R.A.  575,  68  Pac.  24. 


1 


1896  THE  LAW   OF  DEEDS.  [CHAP.    XXVIII. 

nary  prudence,"  said  Carpenter,  J.,  "will  use  all  reasonable 
means  to  ascertain  the  state  and  condition  of  their  own  titles. 
Hence,  we  may  lay  it  down  as  a  rule,  founded  upon  the  ex- 
perience of  mankind,  that  one  who  has  knowledge  of  the  ex- 
istence of  a  deed,  to  which  he  has  access,  and  which  affects  the 
title  to  property  in  which  he  is  interested,  will,  in  equity,  be 
presumed  to  have  knowledge  of  the  contents  of  the  deed. 
And,  generally,  when  a  purchaser  cannot  make  out  a  title  but 
by  a  deed  which  leads  him  to  another  fact,  he  shall  be  pre- 
sumed to  have  knowledge  of  that  fact.  Under  our  recording 
system  a  deed  duly  recorded  is  constructive  notice  to  all  the 
world;  and  the  law  conclusively  presumes  that  every  person 
interested  has  knowledge  not  only  of  the  deed,  but  of  its  pre- 
cise language,  where  that  is  material.  These  principles  apply 
in  full  force  to  this  case.  If  a  man  will,  under  certain  cir- 
cumstances, be  presumed  to  have  knowledge  of  the  contents 
of  the  deed  of  another,  how  much  more  reasonable  is  it  to  pre- 
sume that  he  has  knowledge  of  the  contents  of  his  own  deed. 
Occasional  hardships  may  result  from  the  application  of  this 
rule;  but  it  is  believed  to  be  founded  in  sound  policy,  and 
that  in  a  large  majority  of  cases  it  will  tend  to  prevent  fraud 
and  promote  the  cause  of  justice."  ^  "It  is  in  consonance  with 
reason,  that  if  the  title  deeds  under  which  a  purchaser  derives 
title  recite  an  encumbrance,  he  will  be  bound  by  that  recital, 
and  presumed  to  have  had  notice  of  it,  whether  he  has  read  it 
or  not.  For  the  law  will  not  permit  him  to  deny  notice  by  in- 
sisting that  he  has  not  read  the  deed."  ^ 

§  1003.  Recitals  in  patents. — The  same  rule  as  to  re- 
citals in  deeds  applies  also  to  recitals  in  patent  from  the  gov- 
ernment. A  person  who  traces  his  title  to  a  patent  is  charged 
with  notice  of  the  facts  contained  in  its  recitals.^    If  a  patent 

9  Hamilton  V.  Nutt,  34  Conn.  501.  2  Bonner  v.  Ware,  10  Ohio,  465. 

1  Wailes  V.  Cooper,  24  Miss.  208,       See,  also,  Brush  v.  Ware,  15  Peters, 

228,  per   Mr.  Justice  Yerger.  93,  10  L.  ed.  672;  Bell  v.  Duncan, 


CHAP.    XXVIII.]  RECITALS.  1897 

issues  to  one  as  assignee  of  another,  as  executor  of  a  third 
person,  deceased,  a  purchaser  from  the  patentee  must  deter- 
mine at  his  peril  whether  the  executor  had  the  requisite  power 
to  make  an  assignment  of  the  warrant.^ 

§  1004.     Presumption  of  satisfaction  of  vendor's  lien. — 

A  deed  recited  that  it  was  made  "in  consideration  of  the  sum 
of  nine  hundred  and  thirty-seven  and  a  half  dollars,  to  me 
in  hand  paid,  or  secured  to  be  paid,  the  receipt  wdiereof  is 
hereby  acknowledged."  This  recital  was  held  to  be  sufficient 
notice  to  subsequent  purchasers  that  a  vendor's  lien  existed, 
and  it  was  incumbent  upon  such  subsequent  purchasers  to 
show  that  the  vendor's  lien  for  any  unpaid  balance  had  been 
removed,  waived,  or  abandoned.*  And  when  it  is  recited  in 
a  deed  that  the  sale  is  made  on  credit,  it  is  the  duty  of  the 
grantee  to  inquire  whether  the  purchase  money  has  been  paid. 
He  is  not  authorized  to  presume  its  payment  from  the  fact  that 
the  time  for  the  payment  of  the  purchase  money,  as  mentioned 
in  the  deed,  has  elapsed.^  The  grantee,  if  he  had  made  the  in- 
quiry, must  have  learned  the  truth,  and,  by  failing  to  make  it, 
he  is  guilty  of  such  negligence  as  precludes  him  from  claim- 
ing to  occupy  the  position  of  an  innocent  purchaser  without 
notice.^  But  when  sufficient  time  has  elapsed  to  bar  an  action 
on  the  notes  taken  for  the  purchase  money,  a  purchaser  or 
judgment  creditor,  although  the  notes  may  have  been  re- 
newed, may  rely,  it  is  held,  upon  the  presumption  that  they 

11    Ohio,    192;    Ware  v.    Brush,    1  As  to   recitals  in  Mexican  grants, 

McLean,    533;    Reeder   v.    Barr,   4  see  Ferris  v.  Coover,  10  Cal.  589; 

Ohio,  446,  22  Am.  Dec.  762 ;  Polk's  Nieto    v.    Carpenter,    7    Cal.    527; 

Lessee   v.   Wendall,  5  Wheat.  293,  Scott  v.  Ward,  13  Cal.  458. 

5  L.  ed.  92;  Miller  v.  Kerr,  7  Wheat.  *  Thornton  v.   Knox,  6  Mon.   B. 

1,  5  L.  ed.  381;  Hoofnagle  v.  An-  74.     See,  also,  Johnston  v.  Gwath- 

derson,  7  Wheat.  212,  5  L.  ed.  437;  mey,  4  Litt.  317,  14  Am.  Dec.  135. 

Hardin  County  v.  Nona  Mills  Co.,  5  Deason  v.  Taylor,  53  Miss.  697. 

(Tex.   Civ.   App.)    112   S.  W.   822.  6  Honore's  Executory.  Bakewell, 

« Bonner  v.  Ware,  10  Ohio,  465.  6   Mon.    B.   67,   43   Am.    Dec.    147. 


189S  THE   LAW  OF  DEEDS.  [CHAP.    XXVIlI. 

have  been  paidJ  "AVlien  the  purchaser  appears  upon  the  face 
of  his  deed  on  the  pubhc  records  of  the  county  as  the  absolute 
owner,  without  reservation  or  encumbrance,  in  favor  of  the 
vendor,  how  long  will  a  court  of  conscience  recognize  his  lien 
as  against  creditors  who  have  recovered  judgments  against 
the  vendee?  Can  the  vendor,  by  protracted  indulgence,  keep 
alive  his  secret  privilege  after  a  presumption  may  fairly  arise 
that  the  debt  has  been  paid?  Credit,  in  a  very  large  measure, 
depends  upon  the  amount  and  value  of  property  which  a  man 
ostensibly  owns.  If  one  is  in  the  possession  of  land  under  a 
deed  made  ten  or  twelve  years  ago,  would  the  community  be 
justified  in  inferring  that  the  purchase  money  had  been  paid, 
and  might  not  prudent  men  give  credit  on  the  faith  of  the 
fact?  If  the  vendor  lie  by  all  that  time,  taking  no  measures  to 
enforce  his  claim,  should  he  not  be  considered  as  holding  his 
purchaser  out  to  the  community  as  an  unencumbered  owner; 
and  when  creditors  under  subsequent  judgments  proceed 
against  the  land,  ought  he  not  to  be  postponed  to  them?  The 
vendor's  privilege  results  by  law  from  the  sale,  and  is  an  in- 
cident of  the  debt.  When  the  debt  is  barred  the  lien  is  ex- 
tinguished. If  a  court  of  equity  would  keep  up  this  lien  (as 
against  intervening  claimants)  long  enough  to  afford  the  vend- 
or a  full,  reasonable  time  to  get  in  his  money,  as  long  as  a 
right  of  action  at  law  is  preserved  to  him  to  recover  the  debt, 
it  would  seem  that  ample  protection  is  given  to  his  equity.  It 
would  be  unreasonable  and  fruitful  of  evil  to  leave  it  in  the 
discretion  of  the  vendor  to  indulge  and  postpone,  whether  by 
renewals  or  not,  so  that  others  may  be  entrapped  to  deal  with 
the  vendee  as  a  man  of  substance,  and  then  turn  upon  them 
and  say  that  they  did  so  at  their  risk,  and  sweep  from  them 
that  upon  which  they  trusted."  *    If  a  deed  contains  a  reser- 

■^  Avent    V.    McCorkle,    45    Miss.  these:    An   owner   of   land   subject 

221.  to  a  mortgage  which  was  recorded 

8  Simrall,  J.,  in  Avent  v.  McCor-  conveyed  a  portion  thereof  to  two 

kle,   45    Miss.    221.      In   Judson    v.  persons.    The  deed  stated  the  prop- 

Dada,  79  N.  Y.  373,  the  facts  were  erty   was    "supposed   to   be   eighty 


CHAP.    XXVIII.] 


RECITALS. 


1899 


vation  of  a  lien  to  the  grantor  for  the  unpaid  portion  of  the 

price,  this  deed  is  notice  to  a  subsequent  purchaser  of  the 

grantor's  rights,  even  if  not  recorded,  because  it  is  in  the 
chain  of  title  of  such  purchaser.' 

§  1005.     Indefinite  description. — It  is  not  essential  in 
all  cases  that  the  recital  should  be  so  certain  in  its  terms  as  to 


acres/'  The  grantor  covenanted 
that  in  case  of  a  deficiency  she 
would  pay  therefor  at  the  rate  of 
thirty  dollars  per  acre.  The  grant- 
ees assumed  and  agreed  to  pay  the 
whole  mortgage  in  consideration 
for  the  deed.  It  having  been  as- 
certained subsequently  that  there 
was  a  deficiency  in  the  land  con- 
veyed, the  grantor  executed  to  tlie 
grantees  a  writing,  agreeing  that 
she  would  save  them  harmless  to 
the  amount  of  $273.32  from  any 
claim  under  the  mortgage.  This 
latter  sum  was  what  the  deficiency 
would  be.  The  grantor  afterward 
conveyed  the  remaining  portion  of 
the  property  to  other  persons,  and 
covenanted  that  the  same  was  free 
and  clear  from  all  encumbrances. 
An  action  was  brought  to  fore- 
close the  mortgage,  and  the  court 
held  that  the  grantees  of  the  resi- 
due were  entitled  to  no  greater 
equities  than  those  which  the  grant- 
or had  at  the  time  she  conveyed, 
and  intimated,  though  it  did  not  so 
decide,  that  sufficient  was  contained 
in  the  first  deed  to  put  the  subse- 
quent grantees  upon  inquiry,  and 
charge  them  with  constructive  no- 
tice of  the  release  by  the  grantor 
to  the  first  grantees  to  the  extent 
of  the  value  of  the  deficit,  in  case 
a  notice  was  required.  See,  also, 
Howard  Ins.  Co.  v.  Halsey,  8  N.  Y. 


(4  Seld.)  271,  59  Am.  Dec.  478; 
Green  v.  Slayter,  4  Johns.  Ch.  38; 
Hope  v.  Liddell,  21  Beav.  183; 
Cambridge  Bank  v.  Delano,  48  N. 
Y.  326;  Howard  v.  Chase,  104  Mass. 
249;  Hudson  v.  Warner,  2  Har.  & 
G.  415;  Garrett  v.  Puckett,  15  Ind. 
485;  Ross  v.  Worthington,  11  Minn. 
438,  88  Am.  Dec.  95;  Taylor  v, 
Stibbert,  2  Ves.  437;  Martin  v. 
Cotter,  3  Jones  &  L.  496,  506 ;  Clem- 
ents V.  W^elles,  Law  R.  1  Eq.  200; 
Hall  V.  Smith,  14  Ves.  426;  Cosser 
V.  Collinge,  3  Mylne  &  K.  282; 
Lewis  V.  Bond,  18  Beav.  85;  Cox 
V.  Coventon,  31  Beav.  378;  Wil- 
braham  v.  Levesey,  18  Beav.  206; 
Tanner  v.  Florence,  1  Ch.  Cas.  Ch. 
259;  Walter  v.  Maunde,  1  Jacob  & 
W.  181 ;  Drysdale  v.  Mace,  2  Smale 

6  G.  225;  Pope  v.  Garland,  4 
Younge  &  C.  394 ;  Smith  v.  Capron, 

7  Hare,  185;  Babcock  v.  Lisk,  57 
111.  325;  Martin  v.  Nash,  31  Miss. 
324;  Sanborn  v.  Robinson,  54  N. 
H.  239;  Brown  v.  Simons,  44  N. 
H.  475 ;  Briggs  v.  Palmer,  20  Barb. 
392,  20  N.  Y.  15. 

9  Runge  V.  Gilbough,  99  Tex.  539, 
91  S.  W.  566,  122  Am.  St.  Rep. 
659.  As  to  recitals  giving  notice 
of  unrecorded  instruments  see  Bai- 
ley v.  Southern  Ry.  Co.,  112  Ky. 
424.  60  S.  W.  631;  Paul  v.  Kers- 
well,  60  X.  J.  L.  273.  Z7  Atl.  1102; 
Pierson  v.  McCHntock,  34  Tex.  Civ, 


1900  THE  LAW  OF  DEEDS.  [CHAP.    XXVIII. 

apprise  the  purchaser  of  all  the  rights  of  another.  It  will 
charge  him  with  notice  if  it  is  sufficient  to  put  him  upon  in- 
quiry. A  testator  devised  to  his  son  Robert,  "fifty  acres  on 
the  west  end  of  the  place  previously  given  to  his  son  Michael, 
for  ten  years,  and  at  the  end  of  that  time  to  hold  the  same  by 
paying  to  Michael  five  dollars  per  acre  in  installments,  to  be 
given  him  on  either  side  of  the  road,  as  Michael  may  think 
proper."  A  certain  portion  of  the  premises  was  set  ofT  at  the 
west  end  of  the  tract  devised,  though  a  clearing  had  first  been 
commenced  at  the  east  end  by  an  agreement  between  the  two 
sons,  and  had  been  paid  for,  but  no  deed  had  been  executed,  nor 
was  there  any  continued  possession  on  the  part  of  Robert.  An 
heir  of  Robert  brought  an  action  of  ejectment  against,  a  pur- 
chaser at  a  sheriff's  sale  under  Michael,  who  claimed  to  hold 
as  a  purchaser  without  notice.  But  the  court  held  that  the 
will  was  notice  to  him  of  a  devise  of  fifty  acres  of¥  the  north- 
west corner  of  the  tract,  which  part,  unless  it  had  been  select- 
ed elsewhere,  was  the  part  best  answering  the  description  in 
the  will.  A  person  who  read  the  will  would  be  under  obligation 
to  inquire  if  the  devisee  had  obtained  his  fifty  acres,  and  at 
what  time.^ 

§  1006.  Collateral  circumstances. — While  a  grantee  is 
bound  to  take  notice  of  everything  that  appears  on  the  face 
of  the  deeds  in  his  chain  of  title,  he  is  not  compelled  to  prose- 
cute an  inquiry  into  collateral  circumstances.  And  where  a 
deed  refers  to  another,  he  is  not  required  to  take  notice  of  a 
fact  exhibited  in  the  latter  deed  which  is  completely  foreign 
to  the  subject  of  the  reference.^  He  is  not  obliged,  for  in- 
stance, to  take  notice  that  the  deed  to  which  reference  is  thus 
made  has  incorporated  into  it  a  bill  of  sale  of  personal  prop- 

App.  360,  78  S.  W.  706;  Sweet  v.  2  Mueller  v.  Engeln,  12  Bush,  441 ; 

Henry,  175  N.  Y.  268,  67  N.  E.  574.       Burch  v.  Carter.  44  Ala.  115. 

iMcAteer    v.    McMuIlen,    2    Pa. 
St  32. 


CHAP.    XXVIII.]  RECITALS.  1901 

erty  on  which  the  grantor  attempts  to  retain  a  lien.'  A  pur- 
chaser is  affected  with  notice  by  a  recital  so  far  as  it  concerns 
the  title  to  the  land  purchased.  He  is  not  affected  with  no- 
tice with  respect  to  the  title  of  any  other  land  than  that  which 
is  transferred  by  such  deed.* 

§  1007.  Notice  of  trust  in  favor  of  grantee. — Where  a 
deed  is  made  for  a  nominal  consideration,  and  contains  a 
recital  that  it  is  made  in  pursuance  and  fulfillment  of  a  trust 
reposed  in  the  grantor  by  the  grantee,  the  recital  is  not  no- 
tice of  a  trust  in  favor  of  any  other  person  than  the  grantee 
himself.  This  is  said  to  be  especially  true  when  the  deed  is 
made  to  the  grantee  and  his  heirs  in  fee  simple,  for  the  only 
proper  use  and  behoof  of  the  said  grantee  and  his  heirs  and 
assigns  forever.^ 

§  1008.  Bond  for  deed. — A  purchaser,  being  presumed 
to  know  every  fact  to  which  he  is  led  by  a  deed  forming  a 
link  in  the  chain  of  his  title,  cannot  in  equity,  escape  from  the 

3  Mueller  v.  Engeln,  12  Bush,  441.  And  this,  it  is  obvious,  ought  not  to 

*  Boggs  V.  Varner,  6  Watts  &  S.  be  done  by  testimony  in  its  nature 

469.     In  this   case    (at  page  474),  vague    and    indefinite,   and    leading 

it  is  said  on  the  question  of  wheth-  to  no  certain  results,  such  as  that 

er  notice  should  be  proven  by  vague  he    ought    to   have   known    of    the 

and  uncertain  evidence,  by  Rogers,  prior  title  because  he  lived  near  the 

J :  "A  court  of  equity  acts  on  the  owner,  in  the  same  town,  perhaps, 

conscience,  and  as  it  is  impossible  or   on   the    next    lot,    that    he    was 

to  make  any   demand  on  the  con-  well    acquainted   with   him,    or   be- 

science    of    a    man    who    has    pur-  cause  the  title  was  well  known  to 

chased  for  a  valuable  consideration,  others.     This  may  all  be  true,  and 

bona  fide  and  without  notice  of  any  yet  at  the  time  he  pays  his  money, 

claim  on  the  estate,  such  a  man  is  he  may  be  ignorant  of  any  other 

entitled  to  the  peculiar  favor  of  a  title  than  his  own.     It  is  not  just 

court  of  equity.    As  every  presump-  that  inferences  should  be  strained 

tion  is  in  favor  of  the  subsequent  in   favor  of   the   person  by   whose 

purchaser,  when  the  former  owner  default  the  mischief  has  been  done." 
is  guilty  of  neglect,  his  title  cannot  ^  Kaine  v.   Denniston,  22  Pa.  St. 

be    postponed    except    by    evidence  202. 
which  taints  his  conduct  with  fraud. 


1902 


THE  LAW   OF  DEEDS.  [CHAP.    XXVIII. 


effect  of  such  presumption,  because  an  equitable  right,  and 
not  a  legal  one,  is  the  fact  to  which  he  is  referred.  A  took  a 
mortgage  from  B,  on  premises  to  which  B  had  title  under  a 
deed  from  C,  which  contained  this  recital :  'This  conveyance 
is  made  in  pursuance  of  a  contract  of  sale  of  said  premises, 
made  and  entered  into  by  the  party  of  the  first  part  for  a  con- 
veyance thereof  to  one  D,  of  whom  the  said  party  of  the  sec- 
ond part  has  become  the  assignee  or  purchaser,  and  as  such 
entitled  to  a  fulfillment  thereof,  by  virtue  of  this  conveyance," 
the  contract  being  identified  by  its  date.  The  court  held  that 
A  took  his  mortgage  with  notice  of  the  equitable  right  of  D 
to  a  conveyance  from  C,  and  of  the  terms  of  the  agreement 
between  D  and  B,  upon  which  the  right  of  B  to  a  deed  from 
C  was  founded.^  And  a  bond  for  title,  held  by  the  vendee,  is 
sufficient  to  charge  a  purchaser  from  him  with  notice  of  the 
lien  of  the  vendor  for  the  unpaid  purchase  money."' 

§  1009.  Recital  of  nominal  consideration  as  evidence 
of  fraud  of  trustee. — As  a  general  proposition,  when  the 
trust  is  defined  as  to  its  object,  but  it  is  provided  that  the 
property  may  be  sold,  and  the  proceeds  reinvested  upon  trusts 
that  require  a  certain  time  to  be  made,  and  call  for  the  exer- 
cise of  discretion  on  the  part  of  the  trustee,  the  purchaser  is 
not  bound  to  see  to  the  application  of  the  purchase  money. 
By  a  deed  properly  recorded  land  was  conveyed  to  a  person  in 
trust.  The  deed  of  trust  gave  the  trustee  power  to  sell  the 
property,  and  to  reinvest  the  proceeds,  if  the  sale  were  for  the 


6  Acer  V.  Westcott,  1  Lans.   193. 

'^  Newsome  v.  Collins,  43  Ala. 
663;  Bradford  v.  Harper,  25  Ala. 
337.  And  see  Sergeant  v.  Reynolds, 
15  Pa.  St.  343;  Witter  v.  Dudley, 
42  Ala.  616;  Campbell  v.  Roach, 
45  Ala.  667;  Johnson  v.  Thweatt, 
18  Ala.  741 ;  Coy  v.  Coy,  IS  Minn. 
119.  "The  question  of  the  suffi- 
ciency  of    notice   is    often    embar- 


rassing, and  sometimes  difficult  of 
solution.  But,  as  a  general  rule, 
to  charge  a  purchaser,  the  notice 
must  be  such  as  explains  itself  by 
its  own  terms,  or  refers  to  some 
deed  or  circumstance  which  ex- 
plains it,  or  leads  to  its  explana- 
tion": White  V.  Carpenter,  2  Paige, 
217,  249. 


CHAP.    XXVIII.]  RECITALS.  1903 

benefit  of  the  cestui  que  trust.  The  trustee  executed  a  deed 
conveying  the  land,  in  consideration  of  one  dollar  and  other 
valuable  considerations.  The  grantee  under  this  deed  mort- 
gaged the  land  and  reconveyed  it  to  the  trustee,  subject  to  the 
mortgage.  After  the  registration  of  these  deeds,  the  mort- 
gagee assigned  the  mortgage.  The  recital  in  the  deed  from 
the  trustee  was  held  not  to  be  sufficient  notice  to  the  assignee 
that  the  acts  of  the  trustee  were  not  in  accordance  with  the 
power  conferred  upon  him.  There  was  no  obligation  upon 
the  assignee  to  see  whether  the  trustee  had  reinvested  the 
money  obtained  from  the  sale.*  "The  assignee  of  the  mort- 
gage," said  Colt,  J.,  "was  not  bound  to  ascertain  at  her  peril, 
whether  it  was  in  fact  a  sale  upon  which  the  trustee  actually 
received  the  money;  and  her  title  cannot  be  defeated,  unless 
she  had  actual  or  constructive  notice  of  the  alleged  fraud.  It 
is  contended  that  the  recital  in  the  deed,  that  it  was  given  in 
consideration  of  one  dollar  and  of  other  valuable  consider- 
ations, is  either  actual  or  constructive  notice  that  the  trustee 
received  no  money  for  the  deed,  and  that  it  was  given  in  vio- 
lation of  the  trust.  But  this  recital  cannot  be  regarded  as  ac- 
tual or  positive  notice  of  the  fact  charged,  because,  assuming 
that  a  subsequent  purchaser  is  to  be  affected  by  it  under  our 
registry  law,  still,  the  language  does  not  necessarily  import 
misconduct  in  the  trustee,  or  that  there  was  an  absence  of  con- 
sideration. It  is  entirely  consistent  with  the  fact  that  the 
consideration  was  received  in  securities  taken  by  the  trustee 
as  a  valid  change  of  investment,  and  in  fulfillment  of  the  trust. 
And  although  the  fact  that  the  actual  consideration  is  not 
stated  in  the  usual  form  may  be  competent,  in  connection  with 
other  evidence,  to  show  that  the  purchaser  was,  by  all  the 
circumstances,  put  upon  inquiry,  and  therefore  is  chargeable 
with  constructive  notice,  yet  the  recital  alone  is  plainly  not 
enough  to  raise  in  law  a  conclusive  presumption  of  notice."  " 

•  Norman  v.  Towne,  130  Mass.  52  ^  Norman   v.    Towne,    130   Mass. 

52. 


1904 


THE  LAW  OF  DEEDS. 


[chap.    XXVIII. 


Somewhat  similar  in  principle  is  the  case  where  A  borrowed 
three  hundred  dollars  of  B,  and  transferred  and  delivered  to 
him  a  note  and  mortgage  for  fifteen  hundred  dollars  as  col- 
lateral security  for  the  loan,  the  assignment  of  the  mortgage 
being  absolute  in  form  and  reciting  a  consideration  of  three 
hundred  dollars,  the  amount  borrowed.  Before  the  maturity 
of  the  note,  B  transferred  it  and  assigned  the  mortgage  to  C, 
as  collateral  security  for  a  loan  of  twelve  hundred  dollars.  A 
brought  a  suit  in  equity  against  B  and  C  to  redeem  the  note 
and  mortgage.  The  court  held  that  the  recital  of  the  consid- 
eration in  the  assignment  of  the  mortgage  to  B  was  not  of  it- 
self sufficient  to  put  C  on  inquiry,  or  to  show  that  he  acted 
fraudulently,  and  A  could  exercise  the  right  of  redemption 
only  by  paying  the  amount  for  which  C  held  the  note  and 
mortgage  as  collateral  security.^    The  notice,  in  other  words, 


iBriggs  V.  Rice,  130  Mass.  50. 
The  court,  per  Colt,  J.,  said :  "It 
is  not  easy  to  state  by  rule  what 
constitutes  in  equity  implied  or  con- 
structive notice,  because  it  depends 
in  most  cases  upon  a  great  variety 
of  circumstances,  having  a  tendency 
to  excite  suspicion,  or  showing 
fraudulent  purpose.  The  general 
rule  is,  that  whatever  puts  a  party 
upon  inquiry  amounts  to  notice, 
provided  the  inquiry,  as  in  the  case 
of  a  purchaser,  is  a  duty,  and  would 
lead  to  a  knowledge  of  the  fact. 
It  is  left  to  be  decided  in  each  case 
what  is  sufificient  to  put  a  party  on 
inquiry.  In  the  present  case,  the 
fact  relied  on  is  clearly  not  suffi- 
cient. The  defendant  became  hold- 
er of  this  note  for  a  valuable  con- 
sideration before  its  maturity.  He 
had  no  actual  notice  of  any  equities 
which  would  defeat  his  right  to  re- 
cover an  amount  sufficient  to  se- 
cure the  payment  of  the  debt  for 


which  it  was  pledged.  As  ownej 
of  the  mortgage  note,  he  was,  in 
fact,  entitled  in  equity,  without  any 
assignment,  to  claim  the  benefit  of 
the  mortgage  security.  The  mort- 
gage in  this  case,  however,  was 
assigned  to  him  by  one  who  had  a 
perfect  record  title.  It  is  well 
settled  that  the  consideration  ex- 
pressed in  a  deed  is  not  conclusive, 
and  it  is  always  open  to  show  what 
the  real  consideration  was,  and  that 
it  was  more  or  less  than  the  amount 
named :  Bullard  v.  Briggs,  7  Pick. 
533,  19  Am.  Dec.  292.  The  recital 
of  an  inadequate  consideration  in 
the  assignment  under  which  Rice, 
the  assignor  of  Gooding,  claimed, 
if  brought  to  the  knowledge  of  the 
later,  might  be  competent  as  one 
circumstance  in  connection  with 
other  evidence  to  charge  him  with 
gross  negligence  or  a  fraudulent 
purpose,  but  is  not  alone  sufficient 
to   put    him    on    inquiry,    or   prove 


CHAP.    XXVIII.] 


RECITALS. 


1905 


derived  from  matters  of  record,  is  never  construed  as  being 
more  extensive  than  the  facts  stated  by  the  record.^ 


fraud  on  his  part.  It  is  not  easy 
to  see  in  it  anything  calculated  even 
to  arouse  suspicion.  It  is  con- 
sistent with  the  fact  that  the 
amount  of  three  hundred  dollars 
was  agreed  on  by  the  parties  as  the 
fair  value  of  the  mortgaged  prop- 
erty, or  that  it  was  fairly  bought 
for  that  sum  by  Rice.  It  does  not 
necessarily  imply  any  defect  or 
qualification  of  the  apparent  title 
in  him.  It  certainly  cannot  be 
treated  as  actual  notice  that  the 
note  was  subject  to  some  unknown 
equity,  the  nature  of  which  it  was 
the  duty  of  the  defendant  to  as- 
certain at  his  peril.  As  a  prudent 
man,  taking  a  note  not  yet  due, 
it  was  sufficient  for  him  to  know 
that  the  assignment  transferred  to 
him  a  good  title  to  the  mortgage 
Peeda,  Vol.  IL— 120 


security.  It  is  not  enough  that  an 
overprudent  and  cautious  person,  if 
his  attention  had  been  called  to  the 
circumstances  in  question,  would 
have  been  likely  to  seek  an  ex- 
planation of  it.  There  must  be 
some  clear  neglect  to  inquire,  after 
actual  notice  that  the  title  is  in 
some  way  defective,  or  some  fraud- 
ulent and  willful  blindness,  as  dis- 
tinguished from  mere  want  of  cau- 
tion :  Jones  v.  Smith,  1  Hare,  43, 
55,  and  1  Phillips,  244;  Waro  v. 
Lord  Egmont,  4  De  Gex,  M.  &  G. 
460;  Dexter  v.  Harris,  2  Mason, 
531;  Buttrick  v.  Holden,  13  Met. 
355 ;  Jackson  v.  Valkenburgh,  8 
Cowen,  260." 

2  Gale's   Executor  v.  Morris,  29 
N.  J.  Eq.  222. 


CHAPTER  XXIX. 


DESCRIPTION. 


I  1010.     Certainty  of  description.  § 

1011.  Illustrations  of  uncertain- 

ty- 
1011a.  Further     illustrations      of 
uncertainty. 

1012.  What    is    a    sufficient    de- 

scription. 

1013.  Illustrations. 

1013a.  Further  illustrations— Cer- 
tainty. 

1013b.  Additional  illustrations- 
Certainty. 

1013c.  Exception  void  for  uncer- 
tainty. 

1013d.  Description  to  be  liberally 
construed. 

1014.  Land  of  reputed  owner  as 

boundary. 

1015.  General  description  and  un- 

recorded deed. 
IGiSa.  Situation     and     condition 

shov.'n  by  parol  evidence. 
lOlSb.  Center     line     of     railroad 
route. 

1016.  Surplusage. 

1017.  Illustrations. 

1018.  Subject  continued. 

1019.  Parcel  of  larger  tract. 

1020.  Reference  to  maps  or  oth- 

er deeds. 
1020a.  Conflict  between  map  and 
survey. 

1021.  Loss  of  plat. 

1022.  Parol  evidence  as  to  plat. 

1023.  Right  to  way. 

1906 


1024.  Land  bounded  by  non-nav- 

igable stream  or  highway. 

1025.  Where   contrary   intention 

appears. 

102Sa.  Private   way   or    alley. 

1025b.  Intention   of    owner. 

1025c.  Road  as  an  abuttal  and  not 
a  monument. 

102Sd.  Common  use  of  passage- 
way. 

1025e.  Presumption  as  to  center 
of  alley  rebutted. 

1026.  Land  bounded  by  lake  or 

pond. 
1026a.  Effect  of  meander  lines. 

1027.  Estoppel  from  description 

of  land  as  bounded  by  a 
street. 

1028.  Navigable      streams     and 

tide  waters. 

1028a.  Reason  for  these  rules. 

1028b.  Presumption  overcome  on- 
ly by  actual  reservation. 

1029.  Courses  and  distances  con- 

trolled by  monuments. 
1029a.  Erroneous    description    in 
incident  of  title. 

1030.  When  courses  and  distan- 

ces prevail. 

1031.  Latent     ambiguity     as     to 

monument    intended- 
1031a.  Supplying  omissions. 

1032.  Subsequert    survey. 
1032a.  Reliance  on  survey. 


CHAP.    XXIX.] 


DESCRIPTION. 


1907 


§  1033.     Conflict    between    starting 
point   and    other   calls. 

1034.  Running  to  line  of  another 

tract. 

1035.  "Northerly,"   "due   north," 

etc. 

1036.  Division   lines  by  consent. 

1037.  Line  located  by  mistake. 
1037a.  Further    consideration    of 

subject. 

1038.  Two  descriptions  in  deed. 
1038a.  Middle    point    of   physical 

object  intended. 


§  1039.  Repugnance  between  gen- 
eral and  particular  de- 
scription. 

1040.  Some  illustrations. 

1041.  Particular   description  un- 

certain. 

1042.  Parol  evidence. 

1043.  Description     applying     to 

several  tracts. 

1044.  Quantity  of  land  enumer- 

ated. 

1045.  Intention      that      quantity 

shall    control. 

1046.  Words  "more  or  less." 


§  1010.  Certainty  of  description. — The  description  of 
the  premises  conveyed  must  be  sufficiently  definite  and  cer- 
tain to  enable  the  land  to  be  identified;  otherwise  it  will  be 
void  for  uncertainty.^     A  suit  in  ejectment  was  commenced 


1  People  V.  Klumpke,  41  Cal.  263  ; 
Wofford  V.  McKinna,  23  Tex.  36, 
44,  It  Am.  Dec.  53;  Williams  v. 
Western  Union  R.  R.  Co.,  SO  Wis. 
71 ;  Campbell  v.  Johnson,  44  Mo. 
247 ;  Boardman  v.  Read,  6  Pet.  328, 
8  L.  ed.  415;  Bailey  v.  White,  41 
N.  H.  ZZl .  See  Gatewood  v.  House, 
65  Mo.  663;  United  States  v.  King, 
3  How.  nz,  11  L.  ed.  824;  Sneed  v. 
Woodward,  30  Cal.  430;  Montag  v. 
Linn,  23  111.  551;  Kea  v.  Robeson, 
5  Ired.  Eq.  375 ;  Lumbard  v.  Aid- 
rich,  8  N.  H.  31,  28  Am.  Dee.  381. 
See,  also,  Cummings  v.  Browne,  61 
Iowa,  385 ;  Shoemaker  v.  McMoni- 
g!e,  86  Ind.  421 ;  Brown  v.  Cham- 
bers, 63  Tex.  131 ;  Freed  v.  Brown, 
41  Ark.  495;  Howard  v.  North,  5 
Tex.  290,  51  Am.  Dec.  769;  Cun- 
ningham v.  Thornton,  28  111.  App. 
58.  See,  also,  Huntress  v.  Port- 
wood,  116  Ga.  351,  42  S.  E.  513; 
Hamilton   v.   Ogee,    10   Kan.   App. 


241,  62  P.  708;  Hoodless  v.  Jerni- 
gan,  46  Fla.  213,  35  So.  656;  Craw- 
ford V.  Verner,  122  Ga.  814,  50 
S.  E.  958;  Dowdell  v.  Home  Soc. 
114  La.  49,  38  So.  16;  McRoberts 
V.  McArthur,  62  Minn.  310,  64  N. 
W.  903;  Early  v.  Long,  89  Miss. 
285,  42  So.  348;  Wetzler  v.  Nic- 
hols (Wash.)  101  P.  867;  Hoard 
v.  R.  Co.,  59  W.  Va.  91,  53  S.  E. 
278;  Webb  v.  Ritter,  60  W.  Va. 
193,  54  S.  E.  484 ;  Holley  v.  Curry, 
58  W.  Va.  70,  51  S.  E.  135,  112 
Am.  St.  Rep.  944.  In  Holley's 
Ex'r.  v.  Curry  (supra)  the  court 
says :  "The  writing  in  question  de- 
scribes the  real  estate  sought  to  be 
charged  as  follows :  Seventy-two 
acres  of  land  situate  near  Hamlin, 
the  same  bought  of  the  land  com- 
pany. Also,  twelve  and  one-half 
acres  of  land  also  situate  near 
Hamlin  and  the  same  conveyed  to 
said  B.  F.  Curry  by  James  T.  Car- 


1908 


THE  LAW   OF  DEEDS. 


[chap.    XXIX. 


to  recover,  "the  northwest  fourth  of  the  southwest  quarter 
of  section  eleven,  township  fifty-three,  range  sixteen,"  em- 
bracing forty  acres.  The  deed  conveyed  several  tracts,  but 
the  only  designation  in  the  deed  which  would  include  the 


roll,  Jr.,  Also  three  acres  situate 
near  Hamlin,  and  known  as  the  old 
church  lot.  Also  my  store-house 
and  lot  and  livery  stable,  and  lot 
in  Hamlin.  There  are  many  deci- 
sions by  this  court  on  the  subject 
of  descriptions  of  real  estate,  and 
other  writings  (citing  authorities). 
"The  decisions  of  other  states  on 
the  question  of  description  are  al- 
most innumerable,  and  not  always 
consistent.  It  may  be  laid  down  gen- 
erally, that  great  liberality  is  allowed 
in  the  matter  of  description.  In  de- 
scription that  is  certain  which  can  be 
made  certain.  A  deed  will  not  be 
declared  void  for  uncertainty  if  it 
is  possible,  by  any  reasonable  rules 
of  construction,  to  ascertain  from 
the  description  aided  by  extrinsic 
evidence,  what  property  it  is  in- 
tended to  convey.  The  office  of  de- 
scription in  a  deed  or  other  writ- 
ing, is  not  to  identify  the  land,  but 
to  furnish  means  of  identification 
(citing,  among  other  authorities 
text  sec.  1012).  In  the  case  of 
Blake  v.  Doherty,  5  Wheat.  (U.  S.) 
1359,  5  L.  ed.  109,  the  opinion  being 
delivered  by  Chief  Justice  Mar- 
shall, it  is  held :  'It  is  essential  to 
the  validity  of  a  grant  that  the 
thing  granted  should  be  so  de- 
scribed as  to  be  capable  of  being 
distinguished  from  other  things  of 
the  same  kind.  But  it  is  not  nec- 
essary that  the  grant  itself  should 
contain  such  a  description  as  with- 
out the  aid  of  extrinsic  testimony. 


to  ascertain  precisely  what  is  con- 
veyed.' Usually  general  descrip- 
tions such  as  'all  my  land,'  in  a 
certain  town,  county  or  state;  'all 
my  land  wherever  situated;'  'all 
my  right,  title  and  interest  in  and 
to  my  father's  estate  at  law,'  and 
the  like  are  held  good  (citing  au- 
thorities). Descriptions  omitting 
town,  county  or  state,  where  the 
property  is  situated,  have  been  held 
sufficient,  where  tlie  deed  or  writ- 
ing provides  other  means  of  identi- 
fication (citing  authorities  and 
quoting  a  portion  of  text  sec,  1011). 
Under  the  authorities,  the  writing 
in  question  is  not  on  its  face  void 
for  want  of  certainty  in  description 
of  the  real  estate  sought  to  be 
charged  thereby.  This  writing  does 
not  state  in  what  county  or  state 
the  real  estate  is  situated.  It  was 
acknowledged  and  recorded  in  Lin- 
coln county,  in  this  state.  The 
number  of  acres  in  some  of  the 
tracts  is  given.  Three  of  the  tracts 
are  described  as  near  Hamlin.  The 
first  tract  is  described  as  the  same 
bought  of  the  land  company.  The 
second,  as  conveyed  to  Curry  by 
James  T.  Carroll,  Jr.  Hamlin  is 
the  county  seat  of  Lincoln  county, 
in  this  state,  and  of  this  fact  the 
court  will  take  judicial  knowledge. 
People  V.  Faust,  113  Cal.  172,  45 
Pac.  261.  These  facts  afford  some, 
and  we  think  sufficient  means  of 
identification." 


CHAP.    XXIX.]  DESCRIPTION.  1909 

forty-acre  tract  for  which  suit  was  1:)roug"ht  was,  "the  south- 
west quarter  of  section  eleven,  containing  fort}^  acres."  As 
a  quarter  section  contains  four  forty-acre  tracts,  it  was  im- 
possible to  decide  to  which  forty-acre  tract  the  description 
applied.  This  ambiguity  in  the  description  was  held  to  be 
patent  and  hence,  incapable  of  removal  by  extrinsic  evidence. 
A  suit  in  ejectment  founded  on  such  a  deed  must  fail.  The 
title  should  be  first  perfected  by  an  action  brought  for  the 
reformation  of  the  deed.^  But  to  render  the  deed  void  for 
uncertainty  in  the  description,  the  ambiguity  must  be  patent 
and  appear  on  the  face  of  the  instrument.^  A  deed  is  void 
for  uncertainty  which  describes  the  land  conveyed  as 
tract  of  land  lying  and  being  in  the  country  aforesaid, 
adjoining  the  lands  of  John  J.  Phelps  and  Norfleet  Pender, 
containing  twenty  acres  more  or  less."  *  A  deed  is  void  for 
uncertainty,  if  from  its  face  it  is  apparent  that  there  are  two 
lots  to  which  the  description  is  equally  applicable.^  Such 
an  ambiguity  cannot  be  explained  by  parol  evidence.^  So  a 
grant  from  the  State  is  void  in  which  the  description  is  "a 
tract  of  land  containing  one  hundred  and  seventy-three  acres, 
lying  and  being  in  our  county  of  Wilkes,  on  a  big  branch  of 

2  Campbell  v.  Johnson,  44  Mo.  and  Pender  ?  What  course  would 
247.  the  surveyor  take  if  he  had  a  be- 

3  Hardy  V.  Matthews,  38  Mo.  121 ;  ginning  point?  These  questions 
Johnson  v.  Ashland  Lumber  Co.,  cannot  be  answered  by  the  aid  of 
52  Wis.  458.  facts   dehors  the   deed,   established 

4  Dickens  v.  Barnes,  79  N.  C.  490.  by  parol  proof,  because  it  is  a  pat- 
Said  Faircloth,  J.,  speaking  for  the  ent  ambiguity,  a  question  of  law 
court :  "It  fails  to  identify  or  to  for  the  court,  and  not  one  of  fact 
furnish  the  means  of  identifying  for  the  jury."  When  the  descrip- 
under  the  maxim,  id  certum  est  tion  in  the  deed  contains  no  am- 
qiiod  certum  reddi  potest,  the  land  biguity,  and  when  none  appears 
in  possession  of  the  defendant,  the  when  it  is  applied  to  the  land,  the 
locus  in  quo.  It  gives  neither  intent  must  be  ascertained  from  the 
course  nor  distance  of  a  single  line,  language  used  in  the  deed :  Mul- 
nor  a  single  point,  stake,  or  corner,  doon  v.  Deline,  135  N.  Y.  150. 
anywhere  to  begin  at.  Does  the  ^  Brandon  v.  Leddy,  67  Cal.  43. 
tract  lie  on  the  north,  south,  east,  ^  Brandon  v.  Leddy,  67  Cal.  43, 
or  west  side  of  the  lands  of  Phelps 


1910 


THE   LAW   OF  DEEDS. 


[chap.    XXIX. 


Luke  Lee's  Creek,  beginning  at  or  near  the  path  that  crosses 
the  said  branch,  that  goes  from  Crane's  to  Sutton's  on  a 
stake,  running  west  28  chains  50  hnks  to  a  white  oak,  on 
Miller's  line,  then  north  60  chains  to  a  stake,  then  east  28 
chains  50  links  to  a  stake,  then  south  60  chains  to  the  be- 
ginning." '  A  description  in  a  memorandum  of  contract  of 
the  land  to  be  conveyed  as  a  tract  of  one  hundred  and  fifty 
acres,  "lying  on  Watery  Branch,  in  Johnston  County,"  is  so 
indefinite  that  no  decree  for  a  conveyance  can  be  based  upon 
it.®  So  a  description,  "for  fifty  acres  of  land,  situate  and 
lying  on  the  headwaters  of  Elk  Shoal  Creek  as  far  as  the 
waters  of  Radford  Creek,  to  interfere  with  no  land  before 
sold,"  is  insufficient  to  admit  of  the  introduction  of  parol 
evidence  to  identify  the  land.' 

§   ion.     Illustrations  of  uncertainty. — The  description, 

"beginning  at  a  point  in  Laurel  Swamp;  thence  along  the 
margin  of  the  swamp  to  a  point;  thence  north  85  deg.  W.  90 


7  Hinchey  v.  Nichols,  72  N.  C.  66. 

8  Capps  V.  Holt,  5  Jones  Eq.  153. 

9  Radford  v.  Edwards,  88  N.  C. 
347.  The  court  said,  the  instrument 
being  a  bond  for  a  deed:  "As  land, 
unless  it  has  as  a  tract  or  lot  ac- 
quired a  name  to  distinguish  it,  and 
by  which  it  is  known,  can  only  be 
ascertained  by  boundary  lines,  and 
separated  from  all  other,  the  neces- 
sity of  identifying  by  a  description 
which  admits  of  a  definite  location 
is  obvious ;  and  where  this  cannot 
be  done,  no  title  to  it  as  a  distinct 
portion  can  pass  by  the  deed  or 
written  instrument,  the  sole  office 
of  parol  evidence  being  to  fit  the 
description  to  the  thing  described, 
and   not  to   add  to   the   words    of 

description Recurring     to     our 

own  case,  it  may  be  asked  how  can 


the  surveyor  find  a  starting  point 
on  either  creek?  And  if  he  could, 
how  far,  if  he  pursues  the  course 
of  the  creek,  is  he  to  run,  and 
where  stop  for  a  corner?  In  what 
direction  will  he  go  thence  to  the 
other  creek,  and  where  find  a  cor- 
ner there?  And  how  will  he  get 
back  to  the  assumed  beginning? 
These  inquiries  find  no  solution  in 
the  instrument,  and  the  runnings 
must  be  wholly  arbitrary  in  order 
to  ascertain  where  the  fifty  acres 
lie.  There  is  not  furnished  even 
any  indicia  of  the  form  of  the  land ; 
and  if  form  were  given,  the  loca- 
tions could  be  made  indefinite  in 
number,  and  all  fulfilling  equally 
the  conditions  and  requirements  of 
tlie  language  of  the  bond." 


CHAP.    XXIX.]  DESCRIPTION.  1911 

poles;  thence  40  deg.  W.  86  poles;  thence  N.  40  deg.  east 
60  poles  to  a  point  in  a  pond;  thence  along  the  pond  to  a 
point;  thence' S.  77  deg.  88  poles  to  the  beginning,  containing 
one  hundred  and  forty-four  acres  on  the  south  side  of  Broad 
Creek,  lot  10,"  is  so  vague  that  no  land  can  be  located  under 
it.^  A  stake,  unless  identified,  is  an  imaginary  point,  and 
therefore  no  land  can  be  located  under  a  description  in  which 
the  beginning  call  is  for  a  stake,  and  the  remainder  of  de- 
scription is  for  course  and  distance.^  In  the  description  in 
a  deed  the  boundary  line  was  given  as  running  from  a  creek 
which  was  several  thousand  feet  in  length,  without  any  other 
designation  of  the  starting  point.  This  rendered  the  land 
incapable  of  identification,  for  the  reason  that  the  condition 
of  the  description  could  be  complied  with  by  running  a  line 
starting  from  any  position  on  the  creek.  The  deed,  on  ac- 
count of  the  incurable  uncertainty  in  the  description,  thus 
became  inoperative.^  But  where  a  call  in  a  deed  is  from  a 
certain  point  "  to  the  hills,"  this  term,  though  by  itself  in- 
definite, will,  in  case  of  a  studied  repetition  of  that  call  in  all 
the  deeds  forming  the  chain  of  title,  prevail  over  a  call  for 
a  specified  quantity  of  land.*  A  description  giving  the  num- 
ber and  subdivisions  of  certain  sections  only,  but  omitting  the 
names  of  the  township,  range,  or  county  in  which  the  land  is 
situated,  renders  the  deed  void  for  the  patent  ambiguity  in 
the  description.^  But  if  the  land  is  situated  in  a  city,  and 
the  land  is  described  as  being  in  a  certain  city,  although  the 

1  Archibald  v.  Davis,  5  Jones  (N.  '  Le  Franc  v.  Richmond,  5  Saw. 
C),  322.  601. 

2  Mann  v.  Taylor,  4  Jones  (N.  *  Glamorgan  v.  Hornsby,  13  Mo. 
C),  272,  69  Am.  Dec.  750.  In  App.  550.  See  Glamorgan  v.  Baden, 
this  case  the  description  was:  "Be-  etc  Ry.  Go.,  72  Mo.  139. 
ginning  at  a  stake,  running  thence  5  Fuller  v.  Fellows,  30  Ark.  657. 
north  500  chains,  thence  west  250  What  are  the  boundaries  of  the 
chains,  thence  south  500  chains,  land  conveyed  is  a  question  of  law 
thence  east  250  chains,  to  the  first  but  the  location  of  the  boundaries 
station."  See,  also,  Massey  v.  Bel-  on  the  ground  is  a  question  of  fact 
isle,  2  Ired.  170.  to  be  determined  by  the  jury.     Co- 


1912 


THE   LAW   OF  DEEDS. 


[chap.    XXIX. 


name  of  the  State  or  county  may  not  be  given,  the  court,  in 
an  action  of  ejectment  in  which  the  deed  is  offered  in  evi- 
dence, will  take  notice  that  such  city  is  in  a  certain  county 
in  the  State.®  And  where  a  party  enters  in  the  United  States 
land-office  certain  tracts  of  land,  describing  them  by  section, 
township,  and  range,  and  they  are  shown  to  be  in  a  certain 
county  within  the  State,  and  afterward,  by  a  deed  executed 
in  the  same  State,  conveys  a  portion  of  such  land,  describing 
it  also  by  section,  township,  and  range,  but  not  designating 
the  county  or  State  in  which  the  land  is  situated,  it  has  been 
held  that  it  will  be  presumed  that  the  deed  was  intended  to 
convey  land  in  the  State.'    It  seems,  however,  under  any  cir- 


Operative   etc.    Bank   v.    Hawkins, 
(R.   I.)   IZ  Atl.  617. 

6  Harding  v.  Strong,  42  111.  148, 
89  Am.  Dec.  415.  In  this  case  the 
description  was :  "Those  certain 
tracts  or  parcels  of  land  situated  in 
the  Haley's  addition  to  the  city  of 
Monmouth,  known  as  lot  five  in 
block  one,  and  lot  seven  in  block 
ten,  in  south  addition  to  said  city." 
A  deed  is  void  for  uncertainty 
which  describes  the  land  sought  to 
be  conveyed  as  the  "southeast  cor- 
ner" of  a  quarter  section,  without 
stating  dimensions,  or  describing 
land  as  "the  southwest  fractional 
part  of  the  north  one-half"  of  a 
quarter  section,  but  not  stating  the 
qauntity  or  location :  Morse  v. 
Stockman,  IZ  Wis.  89.  Where  land 
is  described  as  "south  part  of  south- 
east quarter  of  section  five,"  and 
also  as  the  "south  part  of  section 
five,  225  acres,"  while  the  first  de- 
scription is  void  for  uncertainty, 
recovery  may  be  had  of  that  part 
of  the  southeast  quarter  embraced 
in  the  latter  description,  the  latter 
description  being  sufficient  to  pass 
title  to  a  strip  containing  225  acres 


of  equal  depth  with  the  southern 
boundary  of  the  whole  section  as 
the  base  line  for  measurement : 
Tierney  v.  Brown,  65  Miss.  563,  7 
Am.  St.  Rep.  679.  When  land  is 
described  as  "one-third  of  a  league 
of  land  purchased  by  me  of  Pome- 
seno  Nanez,  being  his  head  right," 
it  is  insufficient,  without  further 
identification,  to  show  that  this  is 
the  same  land  patented  to  the  grant- 
or as  assignee  of  Nepomaceno 
Nanez:  Harkness  v.  Devine,  IZ 
Tex.  628.  See  Blow  v.  Vaughan, 
105  N.  C.  198.  A  description  con- 
sisting of  the  words  "a  piece  or 
parcel  of  land  near  Bacon  Quarter 
Beach"  is  too  vague  and  indefinite 
to  convey  any  title :  George  v. 
Bates,  90  Va.  839.  See,  also,  Mu- 
tual Building  etc.  Assn.  v.  Wyeth 
(Ala.  Jan.  31,  1895),  17  So.  Rep. 
45;  Holley's  Exr.  v.  Curry,  58  W. 
Va.  70,  51  S.  E.  135,  112  Am.  St. 
Rep.  944  (quoting  this  portion  of 
text  with  approval.) 

7  Butler  v.  Davis,  5  Neb.  521. 
And  see  Long  v.  Wagoner,  47  Mo. 
178. 


CHAP.    XXIX.]  DESCRIPTION.  1913 

cumstances,  that  if  in  the  description  the  names  of  the  town, 
county,  and  State  are  omitted,  the  grantee  nevertheless  ac- 
quires an  equitable  interest  in  the  property.'  The  owner  of  a 
triangular  piece  of  land  executed  a  deed  for  a  portion  of  it, 
the  description  fixing  the  eastern  line  only.  The  deed  recited 
the  grantor's  meaning  to  convey  "one-half  of  what  I  now 
own"  of  the  triangle,  "said  land  to  be  surveyed  and  the  bounds 
set."  The  grantor,  however,  before  any  survey  was  made  or 
bounds  set,  conveyed  to  another  party  the  westerly  point  of 
the  triangle,  including  more  than  half  of  it.  The  first  deed 
was  held  void  for  uncertainty.^  A  description  in  a  deed  of 
the  land  conveyed  as  "a  part  of  section  18,  in  township  7,  of 
range  2  east,  containing  one  hundred  and  eighty  acres,"  is  a 
patent  ambiguity.  Parol  evidence  cannot  explain  or  help  it.^ 
A  deed  is  void  for  uncertainty  in  which  the  land  attempted 
to  be  conveyed  is  described  as  "three  fractions  of  lot  7,  J 
and  K,  Fourth  and  Fifth  streets,  Sacramento  City.^  A  de- 
scription in  a  deed  and  mortgage  of  the  land  "as  the  southeast 
part  of  the  southeast  fourth  of  the  northeast  quarter  of  sec- 
tion 36,  township  4  south,  and  range  2  east,  containing  thirty- 
two  acres,"  was  considered  too  indefinite  to  sustain  a  suit  for 
possession  of  the  land,'  Possession  may  render  certain,  what 
otherwise  would  be  an  uncertain  description.*  If  the  descrip- 
tion is  so  defective  as  to  render  the  deed  void,  a  suit  for  a 
breach  of  a  covenant  of  seisin  contained  in  the  deed  cannot 
be  maintained  without  showing  a  mistake  and  seeking  a  re- 
formation of  the  deed.^ 

8  Lloyd  V.   Bunce,  41   Iowa,  660.  of  an  acre  of  land  near  the  wharf 

^  Harvey    v.    Byrnes,    107    Mass.  or  at  the  wharf,"  does  not  render 

518.  the    deed   void    for   uncertainty,    if 

^  Brown  v.   Guice,  46  Miss.  299.  the  wharf  is  described  and  a  parcel 

^Tryon  v.  Huntoon,  67  Cal.  325,  of    land    is    surveyed    as    the    land 

and  cases  cited.  conveyed,  or  the  grantee  takes  pos- 

3  Shoemaker    v.    McManigle,    86  session :    Simpson   v.    Blaisdell,   85 

Ind.   421.  Me.  199,  35  Am.  St.  Rep.  348. 

*  Richards  v.  Snider,   11  Or.  197.  5  Gordan    v.    Goodman,    98    Ind. 

A  description  of  land  as  "one-half  269.     In   this   case  the   description 


1914  THE   LAW   OF   DEEDS.  [CHAP.    XXIX. 

§  1011a.  Further  Illustrations  of  uncertainty. — A  de- 
scription is  too  vague  and  indefinite  which  specifies  the  prop- 
erty sought  to  be  conveyed  as  "lot  No.  3,  containing  two 
acres  more  or  less,  bounded  as  follows :  North  by  land  of 
G ;  east  by  street  running  North  and  South ;  South  by  A, 
raihoad  company;  west  by  lands  of  L.  Sr.,"  but  which  fails 
to  state  in  what  town,  county  or  state  the  property  is  situated.® 

While  oral  proof  may  be  resorted  to  yet,  if,  after  the  ex- 
haustion of  such  proof,  what  was  intended  to  be  conveyed 
is  still  a  matter  of  conjecture,  the  deed  will  be  void  for  un- 
certainty in  description."^  The  land  described  in  the  admin- 
istrator's deed  as  well  as  in  the  probate  proceedings  leading 
up  to  the  deed  was  described  as  "half  interest  in  and  to  893 
acres"  of  a  specified  survey.  It  appeared  by  parol  evidence 
offered  to  identify  the  land  that  the  survey  contained  more 
than  893  acres,  and,  accordingly,  the  court  held  that  no  title 
passed  on  account  of  the  vagueness  and  uncertainty  of  the  de- 
scription.* The  following  description  is  so  indefinite  as  to 
render  the  deed  void :  "Beginning  at  a  white  oak,  running 
south  of  west  33  rods  to  a  stake;  thence  east  of  south,  33 
rods  to  a  stake;  thence  west  of  north  33  rods  to  the  beginning, 

was:  "The  following  described  real  the  deed  became  impossible.  It  is 
estate,  situate  in  the  county  of  Pu-  necessary  that  a  definite  and  cer- 
laski,  State  of  Missouri,  to  wit:  tain  description  of  the  land  to  be 
And  part  of  the  southeast  quarter  sold  should  be  contained  in  an  order 
of  section  25,  commencing  at  the  of  the  probate  court  for  the  sale 
southwest  corner  of  the  southwest  of  the  land  of  a  minor  by  his  guard- 
quarter  of  the  southeast  quarter  of  ian.  Reference  to  documents  not 
said  section,  running  thence  west  to  contained  in  the  order  itself  can- 
the  cross  fence,  between  Berry  not  help  an  insufficient  description 
Warther  and  Alvis  Goss,  thence  in  the  order :  Hill  v.  Wall,  66  Cal. 
northeast    to    the     half-mile     line,  130. 

thence  south  with  said  line  to  the  ^  Glover  v.  Newson,  132  Ga.  796, 

place    of    beginning,    containing    in  65  S.  E.  64. 

all  one  hundred  and  eighty  acres."  '  Wetzler   v.    Nichols,    53    Wash. 

As   the  township   and  range   were  285,    101   Pac.  867. 

not  given,  the  location  of  the  land  8  Herman  v.  Likens,  90  Tex.  448, 

from    the    description    supplied    by  39  S.  W.  282. 


CHAP.    XXIX.]  DESCRIPTION.  1915 

containing  six  acres  more  or  less."  ^  A  deed  is  void  for  un- 
certainty in  which  the  land  is  described  as  a  certain  acre  out 
of  a  tract  of  land,  without  a  specification  of  the  part  of  the 
tract  from  which  the  land  is  to  be  taken. ^  If  the  description 
and  proof  offered  are  insufficient  to  locate  the  beginning 
point,  the  description  is  insufficient.^  A  deed  is  void  for  un- 
certainty which  fails  to  designate  the  section,  township  and 
range  in  which  the  land  is  located,  although  it  describes  the 
land  by  metes  and  bounds.^  A  deed  is  void  which  purports 
to  convey  forty  acres  of  a  tract  of  one  hundred  and  fifty 
acres  but  which  fails  to  indicate  the  form  of  the  forty  acre 
tract  or  to  give  any  data  enabling  the  division  line  to  be 
made.'*  A  deed  granting  a  railroad  company  a  right  of  way 
will  be  void  unless  it  contain  a  description  sufficient  to  iden- 
tify the  land,  or  such  a  description  as  by  resort  to  evidence 
will  enable  the  land  to  be  identified.^  No  title  will  pass  by  a 
deed  failing  to  show  the  state  and  county  in  which  the  land 
lies,  the  meridian  to  which  the  range  should  be  referred,  or 
whether  the  township  given  in  the  description  is  either  north 
or  south.®  Nor  on  account  of  uncertainty  will  a  deed  convey 
title,  in  which  the  land  is  described  as  "27  acres,  fractional 
section  15,"  in  a  specified  town  and  range,  where  the  section 
contains  a  greater  quantity  of  land.'  If  the  description  con- 
tained in  the  deed  is  insufficient  to  enable  the  subject  matter 
to  be  ascertained,  the  deed  is  void  for  uncertainty.'  A  deed 
that  fails  to  describe  any  land  is  not  rendered  valid  by  a  stat- 
ute which  allows  parol  evidence  to  be  admitted  to  identify 

9  Kennedy  v.  Maness,   138  N.  C.  5  Hoard   v.    Huntington  &   B.    S. 

35,  50  S.  E.  450.  R.  Co.,  59  W.  Va.  91,  53  S.  E.  278. 

1  Hanna   v.    Palmer,    194   111.    41,  6  Hartigan  v.  Hoffman,  16  Wash. 
56  L.R.A.  93,  61   N.  E.  1051.  34,  47  Pac.  217. 

2  Holmes  v.  Sapphire  Valley  Co.,  '^  Craven    v.    Butterfield,    80    Ind. 
121  N.  C.  410,  28  S.  E.  545.  503. 

3  Hamilton  v.  Oger,  10  Kan.  App.  8  Edens   v.   Miller,    147   Ind.   208, 
241,   62    Pac.   708.  46  N.  E.  526;  Gordon  v.  Goodman, 

4  Smith  V.  Proctor,  139  N.  C.  314,  98  Ind.  269. 
2  L.R.A.  (N.S.)    172,  51   S.   E.  889. 


1916  THE  LAW  OF  DEEDS.  [CHAP.    XXIX. 

land  in  actions  for  the  possession  of  real  estate.'  A  deed  is 
void  in  which  the  description  is  so  uncertain  as  to  be  mean- 
ingless and  the  deed  supplies  nothing  to  enable  the  premises 
to  be  identified.^  A  description  is  insufficient,  where  although 
metes  and  bounds  are  given  no  reference  is  made  to  any 
government  survey  and  neither  the  county  nor  the  state,  in 
which  the  land  is  situated  is  mentioned.^  But  although  a  deed 
must  be  held  to  be  void  in  which  the  description  is  so  uncer- 
tain as  to  give  no  reliable  clue  to  a  more  definite  description, 
yet  the  instrument  will  be  held  valid,  if  from  a  consideration 
of  all  the  facts  which  it  shows  upon  its  face  and  if,  also  from 
all  the  legal  presumptions  naturally  arising  from  these  facts, 
it  is  possible  to  supply  a  true  description  by  means  of  proper 
averments  and  proof.'  Still  a  description  is  not  sufficient 
where  the  land  cannot  be  located  without  an  arbitrary  dis- 
cretion.* A  deed  is  void  for  indefiniteness  where  the  land 
described  is  "a  certain  portion  of  land  lying  and  being  in  the 
county  of  Nash,  formerly  belonging  to  Elias  Barrett  and 
others,  on  both  sides  of  the  road  leading  to  Nashville,  to 
contain  forty  acres  to  be  taken  from"  a  larger  tract.  "It 
purports,"  said  the  court,  "to  cut  off  forty  acres  from  the 
main  body  of  the  land,  and  does  not  in  any  way  indicate  the 
shape,  or  give  any  data  by  which  the  divisional  line  can  be 
indicated."  ^ 

§  1012.  What  is  a  sufficient  description. — A  deed  is 
not  void  for  uncertainty  because  there  may  be  errors  or  an 
inconsistency  in  some  of  the  particulars.     If  a  surveyor,  by 

9  Moore  v.  Fowle,  139  N.  C.  51,  *  Diamond    Plate    Glass    Co.    v. 

51    S.    E.   796.  Tennell,  22  Ind.  App.  132,  52  N.  E. 

1  McBride  v.  Steinweden,  72  Kan.       168. 
508,  83  Pac.  722.  6  Smith  v.  Proctor,  139  N.  C.  314, 

apfaff  V.    Cilsdoor,    173   111.  86,      2  L.R.A.(N.S.)    172,  51  S.  E.  889. 
50  N.  E.  670. 

3Calton  V.  Lewis,   119  Ind.   181, 
21   N.  E.  475. 


CHAP.    XXIX.] 


DESCRIPTION. 


1917 


applying  the  rules  of  surveying,  can  locate  the  land,  the  de- 
to  be  that  the  deed  will  be  sustained,  if  it  is  possible  from  the 
scription  is  sufficient.^  And,  generally,  the  rule  may  be  stated 
to  be  that  the  deed  will  be  sustained  if  it  is  possible  from  the 
whole  description  to  ascertain  and  identify  the  land  intended 
to  be  conveyed.'    Thus,  a  deed  was  held  not  to  be  void  for 


*  Pennington  v.  Flock,  93  Ind. 
378;  Smiley  v.  Fries,  104  III.  416. 
This  section  is  quoted  with  approv- 
al in  McCullough  v.  Olds,  108  Cal. 
529.  If  a  description  by  appropri- 
ate evidence  may  be  shown  to  apply 
to  the  land,  the  deed  is  not  void 
for  uncertainty  of  description : 
Fudickar  v.  East  Riverside  I.  Dist., 
109  Cal.  41.  The  court  says  in 
Bogard  v.  Barhan,  52  Ore.  121,  96 
Pac.  673,  132  Am.  St.  Rep.  676,  678: 
"The  rule  for  determining  the  suffi- 
ciency of  a  description  in  a  deed  or 
any  other  writing  in  relation  to  real 
property  is:  Can  a  surveyor,  with 
a  deed  or  other  instrument  before 
him,  with  or  without  the  aid  of 
extrinsic  evidence,  locate  the  land 
and  establish  the  boundaries?"  See 
also,  Harris  v.  Iglehart  (Tex.)  113 
S.  W.  170. 

'Lyman  v.  Loomis,  5  N.  H.  408; 
Eggleston  v.  Bradford,  10  Ohio, 
312;  Brown  v.  Warren,  16  Nev. 
228;  Stanley  v.  Green,  12  Cal.  148; 
Smith  V.  Dean,  15  Neb.  432;  Bailey 
V.  Allegheny  Nat.  Bank,  104  Pa. 
St.  425 ;  Coleman  v.  Manhattan 
Beach  Improvement  Co.,  94  N.  Y 
229;  Vose  v.  Bradstreet,  27  Me 
156;  Douthit  v.  Robinson,  55  Tex 
69;  Mason  v.  White,  11  Barb.  173 
Brown  v.  Coble,  It  N.  C.  391; 
Berry  v.  Wright,  14  Tex.  270;  Far- 
ris  v.  Gilbert,  50  Tex.  350 ;  Bos- 
worth  V.  Sturtevant,  2  Cush.  392; 
Warren  v.   Makely,  85  N.  C.   12; 


Andrews  v.  Pearson,  68  Me.  19; 
Spect  V.  Gregg,  51  Cal.  198;  An- 
drews V.  Murphy,  12  Ga.  431 ;  Eng- 
lish V.  Roche,  6  Ind.  62;  Enochs 
V.  Miller,  60  Miss.  19;  Reed  v.  Lam- 
mel,  28  Minn.  306;  Bowles  v.  Beal, 
60  Tex.  322;  Hall  v.  Shotwell,  66 
Cal.  379;  Peck  v.  Mallams,  10  N. 
Y.  (6  Seld.)  509;  Jackson  v.  De- 
lancy,  11  Johns.  365;  Pipkin  v. 
Allen,  29  Mo.  229;  Harmon  v. 
James,  15  Miss.  (7  Smedes  &  M.) 
Ill,  45  Am.  Dec.  296;  Neel  v. 
Hughes,  10  Gill  &  J.  7;  Bird  v. 
Bird,  40  Me.  398;  Middlebury  Col- 
lege V.  Cheney,  1  Vt.  336;  Barlow 
V.  Chicago  etc.  R.  R.  Co.,  29  Iowa, 
276;  Roberts  v.  Grace,  16  Minn. 
126;  Conover  v.  Wardell,  22  N.  J. 
Eq.  492;  Everett  v.  Boardman,  58 
111.  429;  Shackelford  v.  Orris,  129 
Ga.  791,  59  S.  E.  112  (citing  text)  ; 
Morton  v.  Root,  2  Dill.  312;  Char- 
ter v.  Graham,  56  111.  19;  Alexander 
v.  Knox,  6  Saw.  54;  McLaughlin 
V.  Bishop,  35  N.  J.  L.  512;  Cooley 
V.  Warren,  53  Mo.  166;  Shewalter 
V.  Pirner,  55  Mo.  218;  Bybee  v. 
Hageman,  66  111.  519;  Sherman  v. 
McCarthy,  57  Cal.  507;  Hoar  v. 
Goulding,  116  Mass.  132;  Thayer 
V.  Torrey,  11  N.  J.  L.  339;  Arm- 
strong V.  Colby,  47  Vt.  359;  Bil- 
lings V.  Kankakee  Coal  Co.,  67  111. 
489 ;  Bartlett  v.  Corliss,  63  Me.  287 ; 
Tucker  v.  Allen,  16  Kan.  312;  Co- 
hen V.  Woollard,  2  Tenn.  Ch.  686; 
Auburn  Congregational  Church  v. 


1918 


THE  LAW  OF  DEEDS. 


[chap.    XXIX. 


uncertainty  where  the  land  conveyed  was  described  as  "two 
hundred  and  twenty-two  and  a  half  acres  off  the  south  and 
west  part  of  the  south  half  of  section  24,  T.  1,  R.  7  west,  in 
De  Soto  County."  '  And  a  deed  describing  the  land  con- 
veyed as  situated  in  a  certain  county  and  school  district,  and 
bounded  by  certain  metes  and  bounds  and  visible  monuments, 
but  omitting  to  state  the  section  and  township,  was  held  not 
to  be  void  for  uncertainty.^    It  is  not  essential  to  the  validity 


Walker,  124  Mass.  69;  Scheiber  v. 
Kaehler,  49  Wis.  291;  Choteau  v. 
Jones,  11  111.  300;  50  Am.  Dec.  460; 
Hanley  v.  Blackford,  1  Dana,  1, 
25  Am.  Dec.  114;  Cilley  v.  Childs, 
1Z  Me.  130;  Dunn  v.  Tousey,  80 
Ind.  288;  McElhinney  v.  Kraus,  10 
Mo.  App.  218;  Bowen  v.  Galloway, 
98  III.  41 ;  Sharp  v.  Thompson,  100 
111.  447,  39  Am.  Rep.  61;  Wiley  v. 
Lovely,  46  Mich.  83;  Whitney  v. 
Robinson,  53  Wis.  309;  Irving  v. 
Cunningham,  58  Cal.  306;  Keening 
V.  Ayling,  126  Mass.  404;  Paroni 
V.  Ellison,  14  Nev.  60;  Friedman 
V.  Nelson,  53  Cal.  589;  Prettyman 
V.  Walston,  34  111.  175;  Miller  v. 
Mann,  55  Vt.  475 ;  Walsh  v.  Ringer, 
2  Ohio,  327,  15  Am.  Dec.  555 ;  Cam- 
ley  V.  Stanfield,  10  Tex.  546,  60  Am. 
Dec.  219;  Bullen  v.  Runnels,  2  N. 
H.  255,  9  Am.  Dec.  55.  See,  also. 
Gates  V.  Paul,  117  Wis.  170,  94  N. 
W.  55 ;  Abercrombie  v.  Simmons, 
71  Kan.  538,  81  P.  208,  1  L.R.A. 
(N.S.)  806;  Ball  v.  Loughridge, 
(Ky.)  100  S.  W.  275;  Veatch  v. 
Gray  (Tex.)  91  S.  W.  324;  Cleve- 
land V.  Shaw  (Tex.)  119  S.  W. 
883;  Sylvester  v.  S.  46  Wash.  585, 
91  Pac.  IS ;  Hoard  v.  R.  Co.,  59  W. 
Va.  91,  53  S.  E.  278.  As  that  is 
certain  which  can  be  made  certain 
the    description,    if    it    will    enable 


a  person  of  ordinary  prudence 
acting  in  good  faith  and  mak- 
ing inquiries  which  the  description 
would  suggest  to  him,  to  iden- 
tify the  land  is  sufficient.  Ford, 
(S.  D.),  124  N.  W.  1108.  See, 
also,  Hayes  v.  Martin,  144  Ala. 
532,  40  So.  204;  Burton  v.  Mul- 
lenary,  147  Cal.  259,  81  P.  544.  The 
object  of  a  description  may  be  said 
to  be  to  prevent  imposition :  Bates 
V.  Bank  of  Missouri,  15  Mo.  309, 
55  Am.  Dec.  145.  See,  also,  as  to 
construction  of  particular  descrip- 
tions, Howard  v.  Pepper,  136  Mass. 
28;  Mast  v.  Tibbies,  60  Tex.  301; 
Bowles  V.  Beal,  60  Tex.  322.  In  a 
mortgage  the  land  afifected  was 
described  as  being  north  of  the 
"ground  of  the  C.  C.  C.  &  I.  R.  R." 
The  court  held  that  the  description 
was  not  rendered  void  by  the  use 
of  the  word  "ground"  instead  of 
''right  of  way :"  Pence  v.  Arm- 
strong, 95   Ind.    191. 

8  Goodbar  v.  Dunn,  61  Miss.  618. 
"The  office  of  description  in  a  deed 
or  other  writing  is  not  to  identify 
the  land,  but  to  furnish  means  of 
identification.  HoUey's  Exr.  v. 
Curry,  58  W.  Va.  70,  51  S.  E.  135, 
112  Am.  St.  Rep.  944  (citing  text). 

9  Dorr  V.  School  District,  40  Ark. 
211.     Said  the  court,  per  Smith,  J : 


CHAP.    XXIX.] 


DESCRIPTION. 


1919 


of  a  deed  that  the  description  should  be  by  boundaries,  courses, 
or  distances,  or  by  reference  to  monuments.  If  the  descrip- 
tion is  general,  the  particular  subject  matter  to  which  the  des- 
cription applies  may  be  ascertained  by  parol  evidence,  and  the 
deed  will  not  be  held  void  for  uncertainty,  if,  with  the  aid  of 
such  evidence,  the  land  intended  to  be  conveyed  can  be  located. 
Thus,  the  property  intended  to  be  conveyed  was  described  in 
the  deed  as  "Pelican  beach,  near  Barren  island,  in  the  town 
of  Flatlands."  The  name  "Pelican  beach"  had  originally  been 
applied  to  the  salt  meadows,  marsh,  and  beach,  on  the  westerly 
end  of  Barren  Island,  subsequently  an  inlet  opened  across 
the  beach,  and  the  greater  portion  of  it  was  thereby  separated 
from  the  island.  The  title  of  the  grantee  to  the  beach  was 
undisputed,  and  it  was  held  in  an  action  of  ejectment  that 
the  deed  was  not  void  for  uncertainty,  but  conveyed  the  title 
to  that  portion  of  the  beach  cut  off  by  the  inlet.-^  The  court 
will  not  resort  to  arbitrary  rules  of  construction,  if,  without 


"Is  the  description  so  defective 
that  it  is  impossible,  by  the  aid  of 
parol  evidence,  to  locate  the  land? 
It  is  in  a  certain  count}',  and  in  a 
certain  school  district,  which  has 
definite  boundaries,  is  parcel  of 
the  tract  upon  which  stood  the  resi- 
dence of  Benjamin  I.  Edwards, 
contains  three  acres,  and  is  de- 
scribed by  metes  and  bounds,  and 
by  visible  monuments,  to  wit,  the 
graveyard,  the  schoolhouse,  the 
highway,  corner  stakes,  and  initial 
tree  from  which  to  start.  And  de- 
fendant had  gone  into  possession. 
A  competent  surveyor  could  have 
found  the  land  without  much  diffi- 
culty. In  conveyancing,  lawyers 
commonly  follow  the  system  of  no- 
tation established  by  the  general 
government,  distinguishing  lands 
according  to  their  legal  subdivi- 
sions. This  furnishes  a  description 
at   once   convenient    and    accurate. 


But  it  is  not  necessary  to  mention 
the  section,  township,  and  range: 
Cooper  V.  White,  30  Ark.  513. 
When  the  land  lies  in  a  city  or 
town,  the  description  is  usually  by 
reference  to  the  lots  and  blocks  of 
a   recorded   plat." 

1  Coleman  v.  Manhattan  Beach 
Improvement  Co.,  94  N.  Y.  229. 
A  sheriff's  deed  to  a  lot  in  a  city 
describing  it  as  "part  of  lot,  17, 
fronting  on  Gallatin  street  fifty 
feet,  extending  eastwardly  seventy- 
three  feet,  as  the  property  of  said 
Isaac  Jamison,"  was  held  not  to  be 
void  on  its  face  for  uncertainty, 
for  it  might  be  shown  by  parol  evi- 
dence that  the  extent  of  the  front- 
age of  the  lot  on  Gallatin  street 
was  only  fifty  feet;  or  that  Jami- 
son, when  the  deed  was  executed, 
was  the  owner  of  a  defined  part 
of  the  lot  fronting  on  such  street 
measuring    fifty    feet,    and   known 


1920 


THE   LAW   OF  DEEDS. 


[chap,    XXIX. 


SO  doing,  the  intention  of  the  parties  can  be  ascertained.  The 
deed  and  its  descriptive  clauses  will  be  construed  as  any  other 
contract  would  be.^  When  a  doubtful  description  is  to  be 
construed,  the  court  should  endeavor  to  assume  the  position 
of  the  parties,  the  circumstances  of  the  transaction  should  be 
carefully  considered,  and  in  the  light  of  those  circumstances, 
the  words  should  be  read  and  interpreted.^  All  doubts  must 
be  resolved  against  the  grantor.*  But  this  rule  cannot  be  used 
to  destroy  the  grantor's  intent  fairly  appearing  from  the  deed 
as  an  entirety.^ 

§  1013.  Illustrations. — A  grantor  described  land  con- 
veyed as  "my  homestead  farm  situated  in  said  Buckfield," 
and  described  the  various  parcels  of  which  it  was  composed, 
and  gave  as  a  description  of  the  last  parcel  "twelve  and  a 
half  acres  out  of  lot  numbered  eight  in  the  first  range."  It  was 
held  that  the  whole  parcel  passed,  notwithstanding  it  con- 
tained twenty-five  acres. ^    A  description  is  sufficiently  definite 


"as  the  property  of  said  Isaac  Jami- 
son." But  when  it  is  shown  by 
extrinsic  proof  that  the  frontage 
of  lot  17  on  Gallatin  street  was 
about  one  hundred  and  forty-seven 
feet,  all  of  which  had  been  con- 
veyed to  Jamison  except  about 
twenty-five  feet,  and  it  is  not  shown 
that  any  part  of  this  had  been  dis- 
posed of  by  Jamison  at  the  time  of 
the  execution  of  the  deed,  and  it 
is  not  shown  that  the  fifty  feet 
front  had  ever  been  separated  from 
the  other,  or  that  there  was  any 
identification  of  any  fifty  feet 
known  "as  the  property  of  said 
Isaac  Jamison,"  the  deed  on  account 
of  the  insufficient  identification  of 
the  property  is  void  for  uncertain- 
ty :  Bernstein  v.  Humes,  71  Ala. 
260.  Parol  evidence  may  be  re- 
ceived to  identify  the  land  where 
the    land    described    in   a   contract 


to  convey  is  uncertain;  Stromme 
V.  Rieck,  107  Minn.  177,  119  N.  W. 
948,  131  Am.  St.  Rep.  452. 

2  Kimball  v.  Semple,  25  Cal.  440. 

STruett  v.  Adams,  66  Cal.  218. 
If  there  is  an  ambiguity  as  to 
which  one  of  two  plats  is  referred 
to  in  the  description  of  the  land, 
the  court  may  regard  the  circum- 
stances connected  with  the  trans- 
action the  situation  of  the  parties 
to  the  deed  and  the  state  of  the 
land  conveyed.  Cook  v.  Hensler, 
(Wash.),  107  Pac.  178  In  the 
case  of  ambiguity  the  construction 
placed  upon  a  deed  will  be  strong- 
est against  the  grantor. 

4  Hunt  V.  Hunt,  119  Ky.  39,  68 
L.R.A.   180,  82  S.   W.  998. 

5  Negaunee  Iron  Co.  v.  Iron  CliflFs 
Co..   134  Mich.  264,  96  N.  W.  468. 

8  Andrews  v.  Pearson,  68  Me.  19. 
Hensler,     (Wash.),    107    Pac    17a 


CHAP.    XXIX.]  DESCRIPTION.  1921 

if  it  gives  the  corner  of  a  certain  lot  as  the  beginning,  and 
courses  and  distances  from  this,  with  metes  and  bounds."'  A 
description  in  a  deed  of,  "all  lands  and  real  estate  belonging 
to  the  said  party  of  the  first  part,  wherever  the  same  may  be 
situated,"  is  sufficient  to  pass  any  land  belonging  to  the  grant- 
or at  the  time  of  the  execution  of  the  deed.'  A  deed  for 
"one-half  of  my  lot,"  when  it  is  shown  by  extrinsic  evidence 
that  the  grantor  owned  but  one  lot  at  the  time  in  the  place, 
is  not  void  for  vagueness  or  uncertainty  of  description.  The 
grantee  takes  as  a  tenant  in  common  of  an  undivided  one- 
half  of  the  lot.^  Where  land  was  situated  in  the  bend  of  a 
river,  it  was  held  that  a  description  in  which  one  of  the  lines 
was  described  as  running  "nearly  due  west  along  the  top  or 
brow  of  the  bluff  on  the  south  side  of  said  river,"  was  suf- 
ficiently definite  and  certain.^  A  deed  in  which  the  land  is 
described  as  "beginning  at  a  servisberry  corner,  thence  north 
to  a  white  oak,  thence  east  to  a  white  oak,  thence  south  to 
limestone  quarry,  thence  to  a  white  oak,"  when  accompan- 
ied by  a  transfer  of  possession,  and  when  it  is  shown  that 
the  trees  are  marked,  is  sufficient  to  pass  the  title,  although 
no  mention  is  made  of  the  locality  of  the  land.^  In  Ohio,  it 
has  been  held  that  a  description^ of  land  as  "seventy  acres 
lying  and  being  in  the  southwest  corner"  of  a  certain  section, 
is  sufficiently  definite,  and  that  the  land  conveyed  will  lie  in 
a  square.^  In  a  deed  conveying  several  parcels  of  land 
the  description  was :    "The  following  tracts  or  parcels  of  land, 

7  Meikel  v.  Greene,  94  Ind.  344.  certainty.     It   is   in  the   southwest 

8  Pettigrew  v.  Dobbelaar,  63  Cal.  corner.  According  to  the  rules  of 
396.  And  see  Brown  v.  Warren,  decision,  both  in  this  State  and  in 
16   Nev.  228.  Kentucky,    that    corner    is    a    base 

9  Lick  V.  O'Donnell,  3  Cal.  59,  point  from  which  two  sides  of  the 
58  Am.  Dec.  383.  land  conveyed  shall  extend  an  equal 

1  Smith    V.    Dean,    15    Neb.    432.  distance,   so  as  to  include  by  par- 

2  Banks  v.  Ammon,  27  Pa.  bt.  1/2.  allel    lines    the    quantity    conveyed. 

3  Walsh  V.  Ringer,  2  Ohio,  327,  From  this  point  the  section  lines 
15  Am.  Dec.  555.  Said  the  court :  extend  north  and  east  so  as  to  fix 
"The  general  position  of  the  land  the  boundary  west  and  south,  the 
conveyed    is    given    with    sufficient  east  and  north  boundaries  only  are 

Deeds,  Vol.  II.— 121 


1922  THE  LAW   OF  DEEDS.  [CHAP,    XXIX. 

all  of  which  lying  and  being  in  the  military  tract  in  the  State 
of  Illinois,  that  is  to  say,  the  northwest  I,  section  27,  11  S., 
2  W.,"  with  several  other  tracts  with  the  word  "section" 
omitted.  It  was  held  that  the  word  "section"  would  be  un- 
derstood, and  hence  that  the  description  of  the  other  tracts 
was  sufficient.*  A  description  of  the  land  conveyed  as,  "all 
my  right,  title,  and  interest  in  and  to  a  parcel  of  land  situate 
in  the  town  of  San  Francisco,  being  block  No.  9,  the  same 
on  which  I  now  reside.  The  part  thus  donated  commences 
at  the  northeast  corner  of  said  block,  running  twenty-five 
varas  west  from  said  corner,  thence  back  one  hundred  varas" 
—is  sufficient  to  sustain  the  deed.  The  land  thereby  con- 
veyed would  be  a  strip  off  the  easterly  side  of  the  block,  which 
in  width  would  be  twenty-five  varas,  and  in  depth  one  hun- 
dred varas.^  Although  there  may  be  a  deflection  of  twenty- 
five  degrees  from  the  cardinal  points  of  the  compass  in  the 
lines  of  a  lot,  a  description  of  the  land  conveyed  as  the  "north 
twenty  feet"  of  such  lot  is  sufficiently  defined.'  A  deed  in 
which  the  land  to  be  conveyed  was  described  as  "commenc- 
ing at  the  southeast  corner  of  section  21,  township  84,  range 
26,"  was  held  to  be  sufficient,  notwithstanding  that  the  deed 
did  not  mention  the  county  and  State  in  which  the  land  was 
situated,  it  appearing  that  the  township  and  range  specified 
were  nowhere  else  than  in  the  county  and  State  in  which  the 
land  was  claimed  to  lie.'  A  deed  is  sufficient  so  far  as  cer- 
tainty of  description  is  concerned,  if  it  states  the  name  of  the 
tract  and  county,  and  refers  to  deeds  of  record  clearly  de- 
scribing the  land  for  a  more  specific  description.*  Where  the 
description  is  uncertain,  reference  may  be  made  to  prior  deeds 

to   be   established   by   construction,  « Jenkins  v.  Sharpf.  27  Wis.  472. 

and  the  rule  referred  to  gives  them  "^  Beal  v.  Blair,  23  Iowa,  318. 

with  sufficient  certainty."  ^  Steinbeck  v.  Stone,  53  Tex.  382. 

4Bowen  v.  Prout,  52  111.  354.  See,   also,   Knowles  v.   Torbitt,   53 

B    Le  Levillain  v.  Evans,  39  Cal.  Tex.   557. 
120.    See  Banks  v.  Moreno,  39  Cal. 
233. 


CHAP,    XXIX.] 


DESCRIPTION. 


1923 


conveying  the  same  land.^  If  the  description  is  "the  north 
half  of  the  southwest  quarter  the  southwest  quarter,"  of  a 
certain  section,  the  deed  will  convey  the  north  half  of  the 


•Bowman  v.  Wettig,  39  111.  416. 
Where  land  is  described  in  general 
terms,  and  also  as  all  the  lands  of 
the  grantors  and  each  of  them,  the 
description  can  be  made  certain  by 
proof,  and  is  sufficient :  Harvey  v. 
Edens,  69  Tex.  420,  6  S.  W.  Rep. 
306.  The  following  description  is 
not  void  for  uncertainty:  '"AH  the 
lands  contained  in  Patent  No.  383, 
vol.  15,  first  class,  to  me  granted 
by  the  State  of  Texas,  and  that 
have  not  been  legally  sold  or  dis- 
posed of  for  location,  the  above 
lands  being  situate  and  lying  in  the 
county  of  W.,  and  fully  described 
in  a  patent  which  accompanies  this 
deed :  Falls  Land  and  Cattle  Co., 
v.  Chisholm,  71  Tex.  523,  9  S.  W. 
Rep.  479.  A  sheriff's  deed  giving 
accurately  only  one  boundary  line, 
but  describing  the  land  by  name  and 
features  familiar  in  that  neighbor- 
hood, is  not  void  for  uncertainty 
where  it  clearly  appears  that  it  is 
well  known  by  that  name,  and  has, 
in  previous  conveyances,  been  de- 
scribed by  it,  and  a  surveyor  who 
surveyed  the  tract  previously  easily 
found  the  land  with  the  sheriff's 
deed  before  him :  Hammond  v. 
Johnston,  93  Mo.  198,  6  S.  W.  Rep. 
83;  Hammond  v.  Gordon,  93  Mo. 
223;  Hammond  v.  Horton,  6  S.  W. 
Rep.  94  (Mo.  Nov.  28,  1887).  See, 
also,  Wolfe  v.  Dyer,  95  Mo.  545,  8 
S.  W.  Rep.  551.  A  deed  which  did 
not  state  the  State  in  which  the 
land  was  situated  was  held  not  to 
be  void  for  uncertainty :  Calton  v. 
Lewis.  119  Ind.  181,  21  N.  E.  Rep. 


475.  The  words  "quarter  of"  pre- 
ceding the  word  "section"  may  be 
supplied  by  construction  as  a  pal- 
pable omission :  Campbell  v.  Car- 
ruth,  Z2  Fla.  264.  See,  also.  Smith 
V.  Nelson,  110  Mo.  552;  Bryan  v. 
Wisner,  44  La.  Ann.  832;  Slack  v. 
Dawes,  3  Tex.  Civ.  App.  520,  22  S. 
W.  Rep.  1053 ;  Johnson  v.  Williams, 
67  Hun,  652.  Where  the  land  de- 
scribed is  "all  those  parcels  of  land 
sold  to"  the  grantor  by  a  third  per- 
son, and  such  person  had  agreed  to 
sell  more  land  than  he  actually 
conveyed  to  the  grantor,  parol 
evidence  may  be  received  for  the 
purpose  of  explaining  whether 
the  deed  conveyed  the  land  de- 
scribed in  the  agreement  or  only 
that  actually  conve3'^ed  by  such 
person :  Bradish  v.  Yocum,  130  111. 
386.  The  fourth  side  of  a  rect- 
angle may  be  supplied  where  the 
intent  of  the  parties  is  clear,  and 
the  grantee  has  entered  into  pos- 
session of  the  rectangular  tract 
with  the  grantor's  consent:  Ray  v. 
Pease,  95  Ga.  153,  22  S.  E.  Rep. 
190.  Where  it  appears  from  the 
description  that  the  shape  of  the 
land  is  triangular,  if  the  quantity  of 
land  and  the  angle  between  two  of 
tlie  lines  are  given,  the  description 
is  sufficient :  Wells  v.  Heddenberg 
(Tex.  Civ.  App.)  30  S.  W.  Rep. 
702.  A  deed  is  not  void  for  un- 
certainty where  a  right  of  way  is 
conveyed  described  as  a  strip  one 
hundred  feet  wide,  of  which  the 
center  line  of  the  route  of  the  rail- 
road company  to  whom  the  deed  is 


1924 


THE  LAW  OF  DEEDS. 


[chap.    XXIX. 


southwest  quarter  of  the  southwest  quarter  of  the  section, 
where  the  call  for  quantity  supports  such  a  construction.^  If 
the  description  uses  the  term  "half,"  this  is  not  to  be  taken  in 
its  literal  sense,  if  a  different  meaning  is  indicated  by  the 
context,  by  concomitant  circumstances,  or  by  subsequent  acts 
of  the  parties.^  A  description  designating  a  tract  of  land 
as  "ten  acres  off  the  northwest  corner  of  said  quarter  sec- 


made,  as  "now  surveyed,  staked, 
and  located,  is  the  center  line  of 
said  route,"  over  certain  land  which 
is  specifically  described :  Denver  M. 
&  A.  Ry.  Co.  V.  Lockwood,  54  Kan. 
586.  See,  also,  Thompson  v.  South- 
ern Cal.  M.  R.  Co.,  82  Cal.  497. 
Where  land  is  described  as  one 
hundred  and  thirty-four  acres  on 
the  north  side  of  a  lot  of  land 
made  by  statute,  a  square,  described 
by  its  number,  district,  and  county, 
the  description  will  embrace  such  a 
parallelogram  as  would  result  from 
drawing  a  line  across  a  line  running 
parallel  with  its  northern  boundary, 
so  as  to  cut  off  one  hundred  and 
thirty-four  acres :  Gress  Lumber 
Co.  V.  Coody,  94  Ga.  519.  Al- 
though the  field  notes  as  described 
in  a  deed  show  a  mistake  because 
they  do  not  close,  yet  the  instru- 
ment is  admissible  in  evidence  when 
it  appears  from  the  deed  that  the 
scrivener  in  copying  the  field  notes, 
mistook  the  character  used  to  de- 
note degrees  for  a  cipher:  Coffee  v. 
Hendricks,  66  Tex.  676.  A  deed 
is  not  void  for  uncertainty  where 
the  description  is  so  many  acres 
to  be  taken  from  a  larger  tract  at 
the  selection  of  the  grantee:  Do- 
honey  V.  Womack,  1  Tex.  Civ.  App. 
354.  Nor  is  a  deed  void  where  an 
uncertainty  as  to  the  identity  of  the 
land  described  can  be  explained  by 


extrinsic   evidence :    McWhirter   v. 
Allen,   1  Tex.   Civ.  App.  649. 

1  Burnett  v.  McCluey,  78  Mo. 
675. 

2  Jones  V.  Pashby,  48  Mich.  634. 
For  cases  in  which  particular  de- 
scriptions have  on  various  points 
been  construed,  see  Kirch  v.  Dav- 
ies,  55  Wis.  287 ;  Piatt  v.  Jones,  43 
Cal.  219;  Winslow  v.  Cooper,  104 
111.  235;  Fratt  v.  Woodward,  32 
Cal.  219,  91  Am  Dec.  573;  Dwight 
V.  Packard,  49  Mich.  614;  Farley  v. 
Deslonde,  58  Tex.  588;  Altschul  v. 
San  Francisco  etc.  Ass'n.,  43  Cal. 
171;  Smiley  v.  Fries,  104  111.  416; 
Cox  V.  Hayes,  64  Cal.  32;  Atchison, 
Topeka  etc.  R.  R.  Co.  v.  Patch,  28 
Kan.  470;  Santa  Clara  Mining 
Assn.  v.  Quicksilver  Mining  Co., 
8  Saw.  330,  17  Fed.  Rep.  657; 
Small  V.  Wright,  74  Me.  428 ;  Arm- 
strong V.  Dubois,  90  N.  Y.  95; 
Parkinson  v.  McQuaid,  54  Wis. 
473;  Hatch  v.  Brier,  71  Me.  542; 
Avery  v.  Empire  Woolen  Co.,  82 
N.  Y.  582;  Cunningham  v.  Webb, 
69  Me.  92;  Hathorn  v.  Hinds,  69 
Me.  326;  Montgomery  v.  Reed,  69 
Me.  510;  Jewett  v.  Hussey,  70  Me. 
433;  Ames  v.  Hilton,  70  Me.  36; 
Snow  V.  Orleans,  126  Mass.  453 ; 
Herrick  v.  Ammerman,  32  Minn. 
544;  Hampton  v.  Helms,  81  Mo. 
631;  Irwin  v.  Towne,  42  Cal.  326; 
Garwood  v.  Hastings,  38  Cal.  216; 


CHAP.    XXIX.]  DESCRIPTION.  1925 

tion,"    is   not   indefinite   and   uncertain.      Such   a   description 
means  ten  acres  in  the  corner  lying  in  a  square,  and  bounded 
by   four  equal   sides.      If,   however,   the  only   words  of   de- 
scription are  "ten  acres  more  or  less  of  said  quarter  section," 
the  description  is  so  uncertain  as  to  render  the  description 
void.^     A  deed   is  void   for  uncertainty  where  the  starting 
point  is  given  as  "commencing  at  the  N.  W.  of  the  N.  W., 
S.  E.  of  section  19."*     So  a  description,  the  "S.  ^  of  the 
N.  E.  I  of  S.  E.  i"  of  a  section  is  fatally  defective.     There 
cannot  be  a  southeast  half  of  a  section.     If  the  word  "quar- 
ter" was  used,  making  the  description  the  "S.  ^  of  the  N. 
E.  i  of  S.  E.  i"  of  the  section,  the  description  would  be 
good.^     If  one  of  the  boundaries  is  described  as  a  line  com- 
mencing a  certain  distance  below  the  mouth  of  a  creek  and 
to  run  at  right  angles  with  the  creek,  the  deed,  in  the  ab- 
sence of  anything  on  its  face  to  indicate  that  the  creek  does 
not  run  in  a  course  perfectly  straight,  or  that  a  straight  line 
drawn  along  the  thread  of  the  stream  would  fail  to  intersect 
the  beginning  point  of  the  contested  line,  is  not  void  for  un- 

De  Levillain  v.  Evans,  39  Cal.  120 ;  the  first  call  was  ambiguous,  it  not 

Mayo    V.    Mazeaux,    38    Cal.    442;  appearing  as  to  what  point  in  the 

Lake    Vineyard    Land    and    Water  road  the  first  call  ran  to,  or  wheth- 

Assn.  V.  The  San  Gabriel  etc.  Assn.,  er  it  only  ran  to  the  road,  and  this 

58   Cal.  51;   Persinger  v.   Jubb,  52  was  a  question  for  the  jury:  Ames 

Mich.    304;'  Frost    v.    Angier,    127  v.   Hilton,  70  Me.  36.     Where  the 

Mass.  212 ;'  White  v.  Gay,  9  N.  H.  calls  were,  "thence  by  the  road  to 

127,   31   Am.    Dec.   224;    Melvin   v.  A's  land,  thence  southerly  by  said 

Proprietors  of  Locks,  etc.,  5  Met.  A's  land  to  B's  land,"  it^was  held 

15,  38  Am.  Dec.  384;   Kirkland  v.  in  a  real  action  that  by  "A's  land" 

Way,  3  Rich.  4,  45  Am.  Dec.  752;  was  meant  land  owned  by  him,  not 

Gourdin  v.  DaCis,  2  Rich.  481,  45  land   possessed    by   him,    especially 

Am.  Dec.  745;  Patterson  v.  Trask,  as   by   giving   this   construction   to 

30  Me.  28,  50  Am.  Dec.  610;  Dow  the   language,   exactly  the  amount 

V.   Jewell,' 18   N.   H.   340,   45   Am.  of  land  to  which  the  grantor  had 

Dec.  371.'  In  a  deed  one  call  from  title   would   be   conveyed:     Jewett 

a  bound   specified  by   courses   and  v.  Hussey,  70  Me.  433. 
distances,   was  "to  the   road,"   etc.  3  Wilkinson  v.  Roper,  74  Ala.  140. 

The   next  call  then   proceeded   "in  «  Pry  v.  Pry,  109  111.  466. 

said  road,"  etc.     It  was  held  that  5  Pry  y.  Pry,  109  111.  466. 


1926 


THE   LAW  OF  DEEDS. 


[chap.    XXIX. 


certainty  on  its  face  with  respect  to  such  line.®  Where  the 
land  is  described  as  "Lot  No.  62,  containing  50  52-100  acres, 
situate  in  the  town  and  county  of  Santa  Barbara,  State  of 
California,  and  numbered  and  marked  on  the  official  map  or 
plan  of  outside  lands  of  the  town  of  Santa  Barbara,  made  by 
William  Norway,  Surveyor,"  the  court  cannot  say,  as-^  mat- 
ter of  law,  that  the  deed  is  void  for  uncertainty  in  the  descrip- 
tion."' An  entire  tract  known  by  a  general  name  may  be  de- 
scribed by  such  name.  The  same  principle  applies  where  a 
tract  designated  by  a  general  name  is  excepted  fro^  a  grant 
by  metes  and  bounds.  The  excepted  tract  so  described  does 
not  pass  by  the  deed.'  A  deed  is  not  void  for  uncertainty  of 
description  in  which  the  land  conveyed  is  described  as  "all 
the  right,  title,  interest,  and  demand  which  the  grantor  has 


6  Irvin  V.  Towne,  42  Cal.  326.  See 
Hicks  V.  Coleman,  25  Cal.  122,  85 
Am.  Dec.  103. 

'  Thompson  v.  Thompson,  52  Cal. 
154.  See,  also,  Meyers  v.  Farquhar- 
son,  46  Cal.  191,  as  to  description  in 
a  bill  of  sale  of  a  mining  claim. 

STruett  V.  Adams,  66  Cal.  218. 
Where  in  one  deed  land  was  de- 
scribed as  "Gift  Map  No.  2,  lots 
No.  398  to  405  inclusive,"  and  in  a 
second  deed  executed  in  Illinois, 
the  description  was,  "all  lands  and 
real  estate  belonging  to  the  said 
party  of  the  first  part  wherever 
the  same  may  be  situated,"  the 
court  held  that  the  first  description 
was  sufficient  if  there  was  a  map 
in  San  Francisco  known  as  "Gift 
Map  No.  2,"  and  that  if  the  lands 
in  controversy  were  owned  by  the 
grantor  named  in  the  second  deed 
they  passed  by  it:  Pettigrew  v. 
Dobbelaar,  63  Cal.  396.  See  Penry 
V.  Richards,  52  Cal.  496;  Lick  v. 
O'Donnell,  3  Cal.  59,  58  Am.  Dec. 
383.    As  to  the  certainty  of  descrip- 


tion required  in  a  decree  of  foreclos- 
ure, see  Crosby  v.  Dowd,  61  Cal. 
558.  A,  who  owned  an  undivided 
tenth  of  a  tract  of  land,  executed 
a  deed  to  B,  describing  the  land 
conveyed  as  "all  of  the  grantor's 
right,  title,  and  interest  in  the  fol- 
lowing described  property,  viz : 
One-half  interest  in  that  right,  title, 
and  interest  of  the  party  of  the 
first  part  in  and  to  an  undivided 
oncitenth  part  of  that  certain  tract 
or  parcel  of  land,"  etc.  B,  the 
grantee,  subsequently  executed  a 
deed  to  C,  conveying  "all  his  right, 
title,  interest,  etc.,  in  the  following 
property,  to  wit :  One-half  inter- 
est in  that  right,  title,  and  interest 
of  the  party  of  the  first  part  in  and 
to  an  undivided  one-tenth  part  of 
that  certain  tract  or  parcel  of  land," 
etc.  The  court  held  that  by  the 
latter  deed  only  an  undivided  half- 
interest  of  B,  that  is,  an  undivided 
one-fortieth  of  the  land,  passed  to 
C:  Hayes  v.  Wetherbee,  60  Cal. 
396. 


(:hap.  XXIX.]  DEscRiPTIO^f.  1927 

or  ought  to  have  in  and  to  all  those  lots  and  parcels  of  land 
lying  in  the  town  of  Silverton,  which  remained  undivided 
amongst  the  proprietors  of  said  townsite,  upon  delivery  of 
deeds  by  the  trustee  of  said  townsite  to  the  said  proprietors, 
the  same  being  one-twelfth  undivided  interest  in  said  un- 
divided lots."  ' 

§  1013a.  Further  illustrations — Certainty. — Parol  evi- 
dence may  be  received  to  identify  the  land  conveyed  where  it 
is  described  as  "Known  as  the  Pruett  place,  near  Batesville, 
Ala.  and  the  land  near  Hoboken,  and  one  mile  north  of  the 
city  of  Eufaula,  all  of  which  was  my  first  wife's  (Ann  B. 
Pruett's)  separate  estate."  ^  It  is  a  sufficient  description  of 
the  reversion  where  a  person  died  seised  of  a  lot  of  a  certain 
number,  out  of  which  dower  was  set  apart  to  his  widow 
to  describe  it  as  "Known  and  distinguished  as  part  of"  the  lot 
mentioned.^  A  deed  is  not  invalidated  because  the  land  con- 
veyed is  described  as  being  in  the  city  of  Shellrock,  instead 
of  the  touni  of  Shellrock.^  If  a  surveyor  from  the  whole 
description  can  locate  and  ascertain  the  land,  it  is  sufficient.* 
Where  land  is  described  as  being  in  "Tallahatchie  County, 
Miss.,"  the  deed  is  not  void  because  the  land  is  not  described 
as  being  located  in  the  State  of  Mississippi.^  A  deed  is  not 
void  for  uncertainty  which  is  dated  Atlanta,  Ga.,  and  describes 
the  land  as  "my  lot  50  ft.  front  on  Fortune  St.  bounded  north 
by  X,  and  south  by  Y."  The  date  line  in  the  deed,  will  be 
taken  as  prima  facie  showing  that  the  street  was  located  in  that 
place.^     If  the  land  conveyed  can  be  identified  by  the  other 

9  Blair  v.  Burns,  8  West  C.  Rep.  *  Walker  v.  Lee,  51   Fla.  360,  40 

285.  So.  881. 

1  Eufanta    Nat.    Bank   v.    Pruett,  ^  Wilkerson    v.    Webb,    75    Miss. 
128  Ala.  470,  30  So.  128.  403,  23  So.   180. 

2  Smith   V.   Wilson,   99   Ga.   276,  6  Horton  v.  Murden,  117  Ga.  72, 
25  S.  E.  637.  43  S.  E.  876. 

'Goodwin  v.  Goodwin,  113  Iowa, 
319,  85  N.  W.  31. 


1928  THE  LAW   OF   DEEDS.  [CHAP.    XXIX. 

calls  of  the  description,  an  impossible  or  senseless  course  will 
not  be  considered^  The  fact  that  evidence  aliunde  the  deed 
may  be  required  to  determine  the  land  conveyed  does  not 
render  insufficient  a  general  description  pointing  out  the  sub- 
ject with  reasonable  certainty.*  The  intent  of  the  grantor 
may  be  made  clear  by  extraneous  evidence  where  some  of  the 
terms  are  equivocal  and  uncertain.^  If  a  description  is  suffi- 
cient when  it  is  made,  a  change  in  the  conditions  subsequently 
made  cannot  invalidate  it.^  There  is  no  latent  ambiguity  in 
a  description  of  land  as  the  "southeast  forty  of  the  northeast 
quarter."  '  The  court  will  take  judicial  knowledge  of  the 
meridian  where  land  is  described  as  situated  in  a  certain  coun- 
ty, and  the  township  and  range  are  numbered.'  Where  a  deed 
gives  certain  courses  and  distances  and  states  that  the  com- 
mencement is  at  "A's"  corner  "and  running  S.  70  degrees 
east  161  chains  to  B's  corner"  the  deed  is  not  void  on  its 
face,  as  by  reference  to  "B's"  corner  the  corner  of  "A" 
may  be  located  by  parol  as  well  as  the  course  and  distance 
between  them.*  Where  the  land  is  irregular  in  form  a  de- 
scription of  it  as  being  bounded  on  three  sides  by  well-defined 
boundaries  and  on  the  fourth  by  the  land  of  the  grantor  and 
as  containing  an  exact  number  of  acres,  does  not  make  the 
deed  void  for  uncertainty.^  Nor  is  a  deed  void  for  un- 
certainty where  the  land  is  described  as  being  "a  lot  90  x 

■'Brose  v.  Boise  City  Railway  &  2  Evans  v.  Gerry,  174  111.  595,  51 

Terminal  Co.,  5  Idaho,  694,  51  Pac.  N.  E.  615. 

753  3  Harrington    v.    Goldsmith,    136 

SGates    v.    Paul,    117    Wis.    170,  Cal.    168,   68   Pac   594.     See,   also, 

04  M    w    ■;=;  Faekler    v.    Wright,    86    Cal.    210. 

9  Barbour    v.    Tompkins,    58    W.  ^^     g^     ^         ^^      Borchard    v. 

Va.  572,  3  L.R.A.(N.S.)  715,  52  S.  Eastwood,    133   Cal.   XIX,   65    Pac 

E.  707.     See,  also,  Holley's  Execu-  -^047 

tor  V.  Curry,  58  W.  Va.  70,  51  S.  4  Babb  v.  Gay  Mfg.  Co.,  ISO  N. 

E.   135,   112   Am.   St.   Rep.  944.  q  139,  63  S.  E.  609. 

1  Sengfelder    v.    Hill,    21    Wash.  5  Moody   v.   Vondereau,    131    Ga. 

371,  58  Pac.  250.  521,  62  S.  E.  821. 


CHAP.    XXIX.]  DESCRIPTION.  1929 

450  on  the  northwesterly  corner"  of  streets  named  in  a  given 
city,  county  and  state,  if  it  is  shown  by  the  evidence  that  the 
ofrantor  was  the  owner  of  a  lot  at  that  corner  of  those  dimen- 
sions  and  was  the  owner  of  no  other  land  in  that  neighbor- 
hood.°  Whether  the  property  can  be  ascertained  or  not  is 
a  question  of  fact.' 

§  1013b.  Same  subject — Additional  illustrations. — A 
court  is  not  justified  in  rejecting  a  deed  as  indefi- 
nite and  uncertain  where  one  of  the  calls  is  "and 
from  said  tree  up  the  hill  about  six  rods  to  another  white 
oak  standing  on  a  bench  on  a  hillside,"  *  If  a  deed  describes 
land  as  being  situated  in  a  certain  fraction  of  a  designated 
section,  township  and  range,  the  fact  that  the  county  in  which 
the  land  is  situated  is  not  mentioned,  will  not  render  the  deed 
void  for  uncertainty  where  it  appears  that  the  description 
given  is  applicable  only  to  certain  land  situated  in  the  county 
in  which  as  shown  by  the  caption  of  the  deed,  it  was  exe- 
cuted.^ A  description  is  sufficiently  certain  where  there  is  but 
one  line  to  find  to  locate  the  land  as  the  land  conveyed  may 
be  identified  by  extrinsic  evidence.^  Where  the  grantor  was 
the  owner  of  the  northwest  quarter  of  a  certain  section  con- 
taining forty-four  acres,  and  was  not  the  owner  of  any  other 
land  in  that  section,  a  deed,  describing  the  land  conveyed  as 
the  "north  part  of  the  west  half"  of  this  quarter  section 
"containing  44  acres  more  or  less,"  is  not  void  by  reason  of 
uncertainty  of  description.'^  No  ambiguity  is  created  by  a 
description  of  land  as  the  "southeast  forty  of  the  northeast 
quarter."  '     A  deed  is  not  void  on  its  face  for  uncertainty 

6  Burton   v.    Mullenary,   147   Cal.  *  Pilkerton  v.  Robertson,  65  S.  E. 

259,  81  Pac.  544.  835. 

'Kykendall    v.    Clinton,    3    Kan.  » Scheuer  v.  Kelly,  121  Ala.  323, 

85.      In    that    case   the    description  26    South,   4. 

was  the  '"Clinton  House,'  together  l  Cleveland  v.    Shaw,   119   S.  W. 

with  all  the  rooms,  houses,  garden  883. 

lots,  etc.,  used  in  connection  there-  2  Walker  v.  David,  68  Ark.  544, 

with"    the    name   of    the    city    and  60  S.  W.  418. 

county  in  which  the  property  was  ^  Evans  v.  Gerry,  174  IlL  595,  51 

situated  being  given.  N.  E.  615. 


i930  THE   LAW   OF   DEEDS.  [CHAP.    XXIX. 

of  description  in  which  the  land  is  described  as  "two  acres 
ot  land  lying  in  the  west  half  of  section  24,  township   18, 
range  29,  situated  in  the  southwest  part  and  on  line  of  said 
property  known  as  Silas  place,  situated  in  Lee  county,  Ala- 
bama." *     The  following  description  was  held  not  to  be  un- 
certain:   "Beginning  at  the  head  of   Southwest  Harbor,   in 
'Sit.  Desert  aforesaid,  the  corner  bound  on  the  shore  between 
said  lot  and  Isaac  Mayo's  lot,  and  follows  the  shore  southerly 
to  the  corner  of  Jonathan   Brown's  lot;  then   follows  said 
Brown's  and  Mayo's  lines  westerly  to  the  head  of  said  lot, 
which  is  called  Cockle's  lot."  ^    But  a  deed  is  void  for  uncer- 
tainty,  where  the  property   is   described   as  beginning  at  a 
stake,  and  all  the  corners  are  mentioned  as  at  a  staked     If 
by  a  simple  mathematical  computation,   one  of  the  corners 
can  be  located,  the  description  well  be  considered  sufficient.' 
Where  the  land  was  described  as  140  acres  in  the  east  part 
of  a  specified  quarter  section,  and  a  portion  of  this  quarter 
section  was  covered  by  a  lake,  the  deed  is  not  void  for  un- 
certainty in  description,  because  it  is  possible  to  lay  off  the 
land  in  a  strip  of  equal  width   from  the  east  side  of  the 
quarter   section,   notwithstanding   that   such   strip   might   in- 
clude a  part  of  the  lake."     If  a  person  owns  476  acres  of  a 
certain  survey,  constituting  its  eastern  boundary  and  owns 
no  other  land^  in  the  survey,  a  description  in  his  deed  of  the 
land  as  "476  acres  being  the  eastern  portion  of"  such  survey 
sufficiently  identifies  the  land.^     If  the  land  is  fully  and  cor- 
rectly described  with  the  exception  that  the  number  of  the 
township  is  erroneously  given  as  "45"  instead  of  "4,"  and  it 
is  possible  to  identify  the  land  by  the  remaining  parts  of  the 

4  Seymour  v.  Williams,  139  Ala.  7Wal#  v.    Club    Land    &    Cattle 
414,  36  So.  187.  Co.,    (Tex.   Civ.   App.),   92   S.   W. 

5  Carter  v.  Clark,  92  Me.  225,  42  984,  reversing  S.  C.  88  S.  W.  534. 
Atl.  398.  ^  Mendota  Qub  v.  Anderson,  101 

6  Barker  v.  Southern  Ry.  Co.,  125  Wis.  479,  78  N.  W.  185. 

N.  C.  596,  34  S.  E.  701,  74  Am.  St  ^  Arnall  v.  Newcom,  29  Tex,  Civ. 

Rep.  658.  App.  521,  69  S.  W.  92. 


CHAP,    XXIX.]  mSCRIPTION.  1931 

description,  the  deed  will  not  be  invalidated  by  the  error.^ 
Where  a  deed  contained  this  description :  "The  west  half  of 
the  southeast  quarter  of  section  nine  (9),  township  thirty 
(30),  range  six  (6),  except  one  acre  from  the  southeast 
corner  of  the  southwest  quarter  of  the  southwest  quarter  of 
said  section,  tow^n  and  range,  together  with  the  buildings 
thereon" — and  it  appeared  from  parol  evidence  that  at  the 
time  of  the  execution. of  the  deed,  the  grantor  was  and  had 
continued  thereafter  to  be  in  the  possession  of  a  dwelling 
and  outbuildings  and  of  a  tract  of  land  extending  a  distance 
in  length  of  sixteen  rods  from  east  to  west  and  a  distance 
in  width  of  ten  rods  from  north  to  south  and  that  it  was 
impossible  to  lay  off  an  acre  at  the  southwest  comer  as 
specified  in  the  description  which  would  include  all  the  build- 
ings without  making  it  of  the  size  and  dimensions  specified, 
and  also  without  the  exclusion  of  the  whole  of  a  highway 
along  the  south  boundary  of  the  tract  of  the  land  described 
in  the  excepting  clause,  the  court  determined  that  it  was  not 
necessary  to  construe  the  description  in  the  exception  as  re- 
quiring the  tract  to  be  square  in  form,  but  that  on  the 
contrary,  it  would  be  construed  as  including  the  land  in  the 
form  of  a  parallelogram  and  as  excluding  the  whole  of  the 
highway.^      A   description   of    land   as   lying   in    a   specified 

1  Borchard  v.  Eastwood,  133  Cal.  in  the  deed  is  the  exception  of  an 
XIX,  .65  Pac.  1047.  acre  in  the  southeast  corner  in  the 

2  Lego  V.  Medley,  79  Wis.  211,  form  of  a  square,  and  that  parol 
24  Am.  St.  Rep.  706.  It  was  said  evidence  is  inadmissible  to  show 
by  Mr.  Justice  Taylor :  "The  that  any  other  form  was  intended 
learned  counsel  also  insist  that  the  by  the  parties.  The  rule  contended 
court  erred  in  permitting  respond-  for  by  the  learned  counsel  is  un- 
ent  to  introduce  parol  evidence  of  doubtedly  the  correct  rule,  when 
the  situation  of  her  buildings  in  the  there  is  nothing  else  in  the  deed 
south-east  corner  of  said  west  half  which  calls  for  a  different  form, 
of  the  southwest  quarter  mentioned  But  the  rule  does  not  apply  to  a 
in  her  deed  to  her  son,  for  the  case  when  the  exception  is  of  a 
purpose  of  locating  the  acre  of  certain  quantity  of  land,  and  the 
land  so  excepted  from  her  deed;  exception  from  the  tract  described 
the  claim  being  that  the  exception  in  the   conveyance   refers   to   other 


1932 


THE  LAW   OF  DEEDS. 


[chap.    XXIX. 


quarter  section  "except  two  acres  in  the  southeast  corner" 
is  not  void  for  uncertainty,  but  it  will  be  considered  that  the 
parties  by  the  exception  meant  that  the  two  acres  should  be 


objects  than  mere  locality.  It  is 
not  denied  by  the  learned  counsel 
that  if  the  exception  had  been  of 
one  acre  in  the  southeast  corner 
of  the  tract  conveyed,  including 
the  grantor's  dwelling-house  situat- 
ed thereon,  that  evidence  would 
not  be  admissible  to  show  that  one 
acre  in  a  square  form  would  not 
cover  the  dwelling-house,  and  that 
in  such  case  the  bounds  of  the  acre 
should  be  so  located  as  to  include 
the  dwelling-house,  if  this  could 
be  done,  and  still  locate  the  acre 
on  the  southeast  corner  of  the  tract 
conveyed.  The  surroundings  and 
the  objects  on  the  ground  would 
control  the  shape  of  the  acre,  which, 
in  the  absence  of  such  surround- 
ings and  objects  called  for  in  the 
deed,  the  law  would  construe  to 
mean  a  square  acre.  In  such  case 
there  is  no  mistake  in  the  descrip- 
tion, which,  if  corrected  at  all,  must 
be  corrected  in  an  action  brought 
for  that  purpose.  It  is  a  mere  ques- 
tion of  the  location  of  the  tract 
excepted    in    the    conveyance. 

But  the  learned  counsel  insists 
that  an  acre  in  a  square  form  will 
cover  all  the  material  calls  for 
boundary  mentioned  in  the  deed, 
because  the  evidence  shows  that  an 
acre  in  a  square  form  will  include 
some  of  the  buildings  of  the  de- 
fendant situate  in  the  southeast 
corner  of  the  land  described  in  the 
fleed.  That  fact  we  do  not  think 
meets  the  call  for  the  buildings 
evidently  intended  by  the  parties 
to  the  deed.     Such  acre  would  not 


include  the  defendant's  dwelling- 
house,  which  was  evidently  far  the 
most  valuable  building  situated  on 
the  southeast  corner  of  the  land 
described  in  the  deed;  and  that 
fact,  with  the  other  evidence  in- 
troduced, raises  a  fair  presumption 
that  that  building,  of  all  others,  was 
the  one  intended  by  the  parties  as 
one  of  the  buildings  which  they 
intended  the  excepted  acre  should 
include. 

It  is  true  that  the  description  of 
the  excepted  acre  in  the  conveyance 
from  the  mother  to  the  son  is  not 
as  particular  and  specific  as  it 
should  have  been,  but  under  the 
evidence  showing  that  at  the  time 
the  conveyance  was  made  the  grant- 
or owned  an  adjoining  eighty 
acres,  and  that  her  dwelling-house 
and  out-houses  were  situate  on  the 
eighty  acres  conveyed  to  her  son, 
that  these  houses  constituted  her 
home  at  the  time,  and  that  after 
the  execution  of  the  deed  she  re- 
mained in  the  occupation  of  her 
dwelling  and  outhouses  as  she  had 
done  before,  claiming  to  own  the 
same,  strongly  tend  to  show  that 
such  dwelling-house  and  other 
buildings  were  situate  on  the  acre 
excepted  in  the  conveyance  to  her 
son;  and  as  an  acre  of  land  can 
be  laid  off  in  the  southeast  corner 
of  the  tract  described  in  the  con- 
veyance in  a  convenient  and  useful 
form,  so  as  to  include  the  build- 
ings, it  seems  to  us  that  the  court 
properly  directed  that  it  should  be 
so  laid  off  and  bounded.   The  words 


f 


CHAP.    XXIX.]  DESCRIPTION.  1933 

in  the  form  of  a  square,  bounded  equally  on  the  four  sides.' 
The  rule  to  be  observed  as  stated  in  one  case  is  that  the 
construction  of  the  grant  should  be  favorable,  "and  as  near 
the  mind  and  intention  of  the  parties  as  the  rules  of  law  will 
admit,  and  to  ascertain  this  intention  parol  evidence  may  be 
resorted  to,  not  to  contradict  or  vary  the  words  of  the  grant, 
but  to  show  from  the  situation  and  condition  of  the  subject- 
matter  what  meaning  the  parties  attached  to  the  words  used, 
especially  in  matters  of  description,"  * 

§  1013c.  Exception  void  for  uncertainty. — If  the  land 
converted  is  described  as  an  entire  tract  excepting  a  parcel 
described,  and  the  description  of  the  parcel  in  the  exception 
is  vague  and  uncertain  the  uncertainty  will  affect  the  excep- 
tion only,  and  that  will  fail  and  not  the  grant.^  Thus,  where 
the  land  was  described  as:  "all  that  certain  piece  and  parcel 
of  land  lying  and  being  in  the  county  of  Mobile,  and  state 
of  Alabama,  in  township  No.  7,  south  of  range  number  3  west, 
and  part  of  the  southeast  quarter  of  the  northwest  quarter 

in  the  description  are  general,  and  mere  words  under  in  the  convey- 
not    specific,    and,    in    the    absence  ance." 

of    anything   indicating   a    different  ^  Green  v.  Jordan,  83  Ala.  220,  3 

boundary,  the  law  would  determine  Am.   St.  Rep.  711. 

that  the  acre  should  be  a  square ;  *  Dunn   v.    English,  23   N.   J.  L. 

but  when  there  is  anything  in  the  126.    As  to  parol  evidence  to  show 

description    which    would    not    be  the    intention    of    the    parties,    see 

complied  with  by  making  the  acre  Finlayson  v.  Finlayson,  17  Or.  347, 

a  square,   then   the  question  as   to  3  L.R.A.  801,  11  Am.  St.  Rep.  836 

what   was   intended  by  the   parties  Hecklin    v.    McClear,    18   Or.    126 

by  the  words  used  is  to  be  deter-  Bonaparte  v.  Carter,  106  N.  C.  534 

mined  by  the  surrounding  circum-  Enliss  v.  McAdams,  108  N.  C.  507 

stances.     In   such   case   there   is   a  Emery  v.  Webster,  42  Me.  204,  66 

latent  ambiguity  on  the  face  of  the  Am.  Dec.  274;  Shore  v.  Miller,  80 

deed    when    applied    to    the    facts  Ga.  93,  12  Am.  St.  Rep.  836;  Wil- 

existing  at  the  time  the  conveyance  son    v.    Cochran,    48    Pa.    St.    107, 

was  executed,  and  the  intent  of  the  86  Am.  Dec.  754. 

parties    in    such    case    becomes    a  ^  De     Roach     v.     Clardy,     (Tex. 

question   of    fact,    and   not   one   of  Civ.  App.),  113  S.  W.  22. 
law,  to  be  determined  alone  by  the 


1934  THE   LAW  OF  DEEDS.  [CHAP.    XXIX. 

of  section  number  26,  in  said  township  and  range,  and  con- 
taining thirty-nine  acres  and  331/^  hundredths.  The  above 
piece  or  parcel  of  land  includes  the  whole  of  the  southeast 
quarter  of  the  northwest  quarter  of  section  number  26,  in 
said  township  less  66%  hundredths  of  an  acre,"  the  grant 
is  valid,  as  the  uncertainty  is  in  the  exception  only.^  The  same 
is  true,  where  the  deed  describes  a  tract  of  land  "less  80  acres" 
previously  sold.     The  uncertainty  affects  the  exception  only.' 

§  1013d.     Description     to     be     liberally     construed. — 

Where  a  description  is  doubtful,  the  court  will  interpret  the 
language  in  the  light  of  the  circumstances  and  for  that  purpose 
will  consider  the  position  of  the  parties  to  the  deed,  and  the 
circumstances  under  which  it  was  made.^  Every  call  in  the 
deed  is  to  be  answered  if  it  is  possible  consistently  to  do  so.' 
For  the  purpose  of  construing  the  extent  of  the  property 
conveyed,  the  acts  of  the  grantee  in  the  case  of  an  uncertain 
description  may  be  considered.^  While  a  specific  description 
will  generally  prevail  over  a  general  description,  yet,  if  there 
are  two  inconsistent  descriptions  in  the  deed,  the  controlling 
description  will  be  that  which  from  a  consideration  of  the  en- 
tire instrument  seems  best  to  express  the  intention  of  the 
parties.^     The  description  the  most  certain  is  to  be  adopted 

eBrombergv.  Smee,  130  Ala.  601,  9  S.   W.  479.     If  the  land  is  de- 

30  So.  483.  scribed  as   all   of   a  certain  league 

■'^Loyd    V.    Gates,    143    Ala.    231,  excepting  certain  tracts  which  can- 

38  So.   1022,  111   Am.   St.  Rep.  39.  not     be     located,     the     uncertainty 

See,  also,  Waugh  v.  Richardson,  30  renders   the   deed  void:    Dwyre  v. 

N.    C.     (8    Ired.)    470;    Henry    v.  Speer,  8  Tex.   Civ.   App.  88,  27  S. 

Whitaker,  82  Tex.  5,  17  S.  W.  509;  W.  585. 

Baldwin  v.  Winslow,  2  Minn.  213;  8  Abercrombie    v.     Simmons,    71 

McAllister  v.  Honca,  71  Miss.  256,  Kan.   538,    1    L.R.A.(N.S.)    806,  81 

14    So.    264;    Maier    v.    Joslin.    46  Pac.  208,  114  Am.  St.  Rep.  509. 

Minn.   228,   48   N.    W.   909;    Corn-  9  Chapman  v.  Hamblett,  100  Me. 

well    v.    Thurston,    59    Mo.     156;  454,  62  Atl.  215. 

Thayer  v.  Torrey,  37  N.  J.  L.    (8  l  Jacob  Tome  Inst.  etc.  v.  Croth- 

Vroom.)    339;    Falls   Land   &   Cat-  ers,  87  Md.  569,  40  Atl.  261. 

tie   Co.   V.    Chisholra,   71  Tex.   523,  2  \Vhitakcr  v.  Whitaker,  175  Mo. 


CHAP.    XXIX.]  DESCRIPTION.  1935 

wliere  two  descriptions  in  a  deed  do  not  agree.^  The  principal 
purpose  of  construction  is  to  ascertain  the  true  intent  of  the 
language,  and  when  that  intent  has  been  ascertained,  it  should 
be  allowed  to  have  paramount  force,*  and  great  liberality 
is  always  exercised  in  construing  that  part  of  the  deed  in 
which. the  property  conveyed  is  described,^  and  the  descrip- 
tion will  be  sufficient  if  it  supplies  the  means  for  identifying  the 
land  to  be  conveyed.^  The  parties  to  a  deed  are  presumed 
to  have  in  mind  the  actual  state  of  the  property  conveyed  at 
the  time  of  the  execution  of  the  deed,  and  therefore,  are 
supposed  to  refer  to  this  for  a  proper  definition  of  the  terms 
used  in  the  descriptive  wordsJ 

§  1014.     Land  of  reputed  owner  as  boundary. — If  the 

boundaries  are  given  as  the  lands  of  others,  the  description 
may  be  sufficient,  although  the  true  names  of  the  owners  are 
not  given,  if  the  boundaries  can  otherwise  be  sufficiently  ident- 
ified. Thus  the  land  conveyed  in  a  deed  was  described  as 
"bounded  on  the  north  by  the  land  of  Joseph  C.  Palmer." 
The  fact  was  that  Palmer  did  not  own  the  land  on  the  north, 
but  the  grantor  had  always  recognized  such  land  as  belonging 
to  him  for  the  reason  that  he  had  been  the  agent  who  purchased 

1,  74  S.  W.  1029;  State  Sav.  Bank  Commonwealth,   181   Mass.  438,  63 

V.    Stewart,   93   Va.   447,   25    S.    E.  N.  E.  1074;  Percival  v.  Chase,  182 

443.  Mass.  371,  65  N.  E.  800;  Jones  v. 

3  Glenn     v.     Augusta     Perpetual  Pashby,    62    Mich.    614,   29   N.    W. 

Bldg.  Assn.,  99  Va.  695,  40  S.  E.  374;  Nichols  v.  New  England  Fur- 

25.  niture  Co.,  100  Mich.  230,  59  N.  W. 

*  Rosenberger  v.  Wabash  R.  Co.,  155;  Hendricks  v.  Vivion,  118  Mo. 

96  Mo.  App.  504,  70  S.  W.  395.  App.  417,  94  S.  W.  318;  Johnson  v. 

5  Key  V.  Ostrander,  29  Ind.  1.  Bowhvare,   149  Mo.  451,  51   S.  W. 

SRucker  v.  Steelman,  73  Md.  396.  109;  Foster  v.  Byrd,  119  Mo.  App. 

7  Dawson  v.   Tames,  64  Ind.  162;  168,  96  S.  W.  224;  Novotny  v.  Dan- 

Scheible    v.    Sl'agle,    89    Md.    323.  forth,  9  S.  D.  301,  68  N.  W.  749; 

See  as  to  other  cases  giving  rules  Gray  v.  Folwell,  57  N.  J.  Eq.  446, 

for    construction    of    doubtful    de-  41   Atl.  869;   Huffman  v.  Eastham', 

scription:     Scott    v.    Michael,    129  19  Tex.   Civ.   App.  227,  47   S.   W. 

Ind.   250,  28  N.   E.  546;   Stone  v.  35. 


1936  THE  LAW  OF  DEEDS.  [CHAP.    XXIX. 

it  for  another.     The  court  held  that  the  northern  boundary 
was  sufficiently  identified.'     It  is  sufficient  that  the  grantor 
recognized  the  person  in  possession  as  the  owners  and  that 
the  boundary   line   of   the   adjacent   tract   is   established  by 
evidence.^     A  deed  is  not  invalidated  by  the  fact  that  it  de- 
scribes the  land  as  being  in  "surveys  Nos.  56  and  75,"  while 
a  part  of  the  land  is  in  survey  41  where  the  land  conveyed 
is  carefully  described  by  courses  and  distances  and  also  by 
visible  monuments.^     A  deed  which  describes  the  land  as  all 
the  lands  owned  by  the  grantor  in   a  certain   county  with 
certain  exceptions,  will  convey  all  the  land  in  such  county 
owned  by  the  grantor  and  not  embraced  in  the  exceptions.^ 
If  a  deed  conveys  a  right  of  way  to  lands  lying  in  a  county 
named  in  the  deed  its  effect  will  be  limited  to  lands  in  such 
county  although  the  grantor  may  own  land  in  other  counties 
which,  under  the  terms  of  the  deed  without  the  limitation 
would  be  affected.^    If  a  deed  describes  the  land  of  a  certain 
person  as  one  of  the  boundaries  of  the  land  conveyed,  though 
the  title  of  such  person  may  be  defective,  still  if  the  grantor 
recognized  him  as  the  owner  and  the  boundary  of  the  ad- 
jacent tract  is  shown  by  extraneous  evidence  competent  for 
that  purpose,  the  description  will  be  sufficient.* 

§  1015.  General  description  and  unrecorded  deed. — 
Where  a  grantor  executes  a  deed  of  all  his  real  estate  without 
description,  the  grantee  obtains  only  such  property  as  is  vested 
in  the  grantor  by  a  legal  title.  Property  conveyed  by  an  un- 
recorded deed,  of  which  the  grantee  was  ignorant,  does  not, 
by  a  deed  in  which  the  description  is  thus  general,  pass  to 
him.* 

8  McKeon  v.  Millard,  47  Cal.  581.  '  Flanary  v.   Kane,   102  Va.   547, 

9  Moody   V.   Vondereau,    131    Ga.      46  S.  E.  312,  681. 

521    62  S.  E.  821.  *  O'Farrell   v.    Vondereau,   68    S. 

iRucker  v.  Steelman,  73  Ind.  396.  E.  485. 

2Borchard  v.  Eastwood,  133  Cal.  5  Jamaica  etc.  Corp.  v.  Chandler, 

XIX,  65  Pac.  1047.  9  Allen,  159. 


CHAP.    XXIX.]  DESCRIPTION.  1937 

§  1015a.  Situation  and  condition  shown  by  parol  evi- 
dence.— The  meaning  that  the  parties  attached  to  the 
language  employed,  especially  in  matters  of  description,  may 
be  shown  by  parol  evidence  relating  to  the  situation  and  con- 
dition of  the  subject  matter,  for  the  deed  should  be  given  a 
favorable  construction,  and  one  as  near  the  meaning  and  in- 
tention of  the  parties  as  the  rules  of  law  will  allow. ^  A  deed 
conveying  all  the  lands  of  the  grantor  is  not  void  for  un- 
certainty of  description,  and  passes  the  title  to  all  land  in 
which  he  has  an  interest.  Nor  does  the  fact  that  the  descrip- 
tion excepts  from  the  operat'on  of  the  deed  all  property  of 
the  graiitor  exempt  from  execution  render  the  conveyance  void 
for  uncertainty  in  description,  as  tliat  is  certain  which  may 
be  made  certain.'  The  declarations  of  the  grantor  subse- 
quently made  relating  to  the  boundaries  of  the  land  conveyed 
are  admissible  in  evidence  against  those  claiming  title  under 
him.'  But  declarations  by  a  former  owner,  under  whom  a 
person  claims,  made  forty  years  before  the  commencement 
of  a  suit  to  recover  a  strip  of  land  bounded  by  a  river,  are 
inadmissible  to  show  that  the  river  has  changed  its  bed.'  Still 
the  rule  is  well  established  that  in  case  of  a  disputed  boundary 
line  which  is  in  doubt,  the  declarations  of  the  grantor,  made 
at  and  before  the  execution  of  the  deed,  as  to  the  location 
of  the  boundary  line,  may  be  received  in  evidence  against  him 
and  those  who  claim  under  him.''  Parol  evidence  may  be 
received  to  fix  boundaries  by  showing  that  when  the  grantor, 
in  delivering  the  deed,  pointed  out  stakes,  and  said  the  land 

6  Lego  V.  IMedley,  79  Wis.  2l'l,  24  »  Taylor  v.  Glenn,  29  S.   C.  292, 

Am.  St.  Rep.  706;  Lyman  v.  Bab-       13  Am.  St.  Rep.  724. 
cock,  40  Wis.  512;  Dunn  V.  English,  l  Sharp    v.    Blankenship,    79    Cal. 

23  N.  J.  L.  126;  Cravens  v.  White,      411;     McFadden    v.     Ellmaker,    52 
17,  Tex.  577.   15  Am.   St.  Rep.  803.       Cal.  349;  Stanley  v.  Green,  12  Cal. 

'McCulloh  V.  Price,  14  Mont.  320,       148;  McFadden  v.  Wallace,  38  Cal 
43  Am.  St.  Rep.  637.  51. 

8  Simpson    v.    Blaisdell,    85    Ms. 
199,  35    Am.   St.  Rep.  348. 
Deeds.  Vol.  IL— 122 


1938  THE   LAW   OF  DEEDS.  [CHAP.    XXIX. 

conveyed  lay  between  them,  and  that  afterward  the  grantor 
and  grantee  erected  fences  mclosing  the  land  between  the 
stakes.^ 

§  1015b.  Center  line  of  railroad  route, — Contempo- 
raneous facts  and  circumstances  may  be  taken  into  considera- 
tion for  the  purpose  of  giving  certainty  to  a  description  that 
otherwise  might  be  vague  and  uncertain.  Thus,  where  a 
deed  described  the  land  conveyed  as  fifty  feet  on  each  side 
of  a  center  line  of  a  route  which  had  been  surveyed,  staked 
and  located,  and  an  attack  was  made  upon  the  description 
on  the  ground  that  it  was  indefinite  the  court  said  that  "the 
law  will  not  declare  a  deed  void  for  uncertainty  when  the 
light  which  contemporaneous  facts  and  circumstances  furnish 
renders  the  description  definite  and  certain."  ^  A  court,  in 
the  construction  of  a  doubtful  construction,  will  assume  as 
nearly  as  is  possible  the  position  of  the  parties  to  the  deed. 
It  will  take  into  consideration  all  the  circumstances  attending 
the  transaction,  and  in  the  light  of  these  circumstances  will 
read   and   construe   the   words  which   the   parties   have   em- 

2  Hooten  v.  Comerford,  152  Mass.  Bryan,  78  Ga.  181,  6  Am.  St.  Rep. 

591,  23  Am.  St.  Rep.  861.    See,  also,  252. 

JLovejoy  v.  Lovett,  124  Mass.  270;  8  Denver  M.  &  A.  R.  Co.  v.  Lock- 

Dodd    V.    Witt,    139    Mass.    63,    52  wood,   54    Kan.    586,   38   Pac.    794. 

Am.  Rep.  700;  Reed  v.  Proprietors  See,  also,  Tucker  v.  Allen,  16  Kan. 

of  Locks  and  Canals,  8  How.  274,  312;  Seaton  v.  Hixon,  35  Kan.  663, 

12  L.  ed.   1077;   Miles  v.  Barrows.  12    Pac.    22;    Thompson    v.    Motor 

122    Mass.    579.     Where   the   deed  Road  Co.,  82  Cal.  497,  23  Pac.  130 ; 

described     the     land     conveyed     as  Pennsylvania  R.  Co.  v.  Pearsol,  173 

"parts"     of     certain     lots,     without  Pa.  496,  34  Atl.  226;  Croffs  v.  Hib- 

stating  what  parts,  it  may  be  shown  bard,  4  Met.  438 ;  Oxford  v.  White, 

by   parol    evidence    what   land    was  95   N.   C.   525 ;   Horton  v.   Murden, 

intended  to  be  conveyed.     The  am-  117  Ga.  12,  43  S.  E.  786;  Armstrong 

biguity   may  be    explained :     Shore  v.   Mudd,  10  B.   Mon.   144,  50  Am. 

V.    Miller,   80    Ga.   93,    12   Am.    St.  Dec.  545;  Lohff  v.  Germer,  Zl  Tex. 

Rep.  239.     See,  also.  Bonaparte  v.  578;  McPike  v.  Allraan,  53  Mo.  551. 
Carter,  106  N,  C  534;  Houston  v. 


CHAP,  xxrx.] 


DESCRIPTION. 


1939 


ployed.*  A  deed  contained  this  description:  "A  perpetual 
right  of  way  over  and  across  lots  2  and  5,  in  block  32,  in 
said  city  of  Colton,  according  to  the  Colton  Land  and  Water 
Company's  survey,  for  the  purpose  of  constructing,  main- 
taining and  operating  said  motor  road,  such  right  of  way  to 
be  along  the  line  as  surveyed  and  laid  out  by  H.  C.  Kellogg, 
civil  engineer  of  said  corporation,  being  a  distance  in  length 
of  1,113  feet  more  or  less,  and  running  in  a  northerly  and 
southerly  direction,  a  map  of  which  is  hereto  attached  and 
made  a  part  hereof."  When  the  deed  was  offered  in  evidence 
objection  was  made,  on  the  ground  that  it  was  void  for  un- 
certainty. To  overcome  this  objection,  the  proponent  of  the 
deed  offered  to  introduce  additional  evidence  to  show  that  at 
the  time  of  the  execution  of  the  deed,  the  road  had  been 
commenced,  and  the  line  of  the  right  of  way,  claimed  under 


*  Thompson  v.  Motor  Road  Co., 
82  Cal.  497,  23  Pac.  130.  The  court 
said : 

"It  is  true  that  a  deed  must  so 
describe  the  land  sought  to  be  con- 
veyed thereby  that  it  can  be  identi- 
fied. But  that  is  certain  which  can 
be  made  certain.  (Civ.  Code,  sec. 
3538).  And  extrinsic  evidence  is 
always  admissible  to  explain  the 
calls  of  a  deed  for  the  purpose  of 
their  application  to  the  subject-mat- 
ter, and  thus  to  give  effect  to  the 
deed.  (Reamer  v.  Nesmith,  34  Cal. 
624).  In  construing  a  doubtful  de- 
scription in  a  grant,  the  court  must 
assume  as  nearly  as  possible  the 
position  of  the  contracting  parties, 
and  consider  the  circumstances  of 
the  transaction  between  them,  and 
then  read  and  interpret  the  words 
used  in  the  light  of  these  circum- 
stances. (Truett  V.  Adams,  66  Cal. 
2t8). 

Now,  if  we  assume  the  position 


of  the  contracting  parties,  and  con- 
sider the  circumstances  of  the 
transaction,  we  shall  see  a  railroad 
in  process  of  construction  by  the 
defendant.  The  proposed  line  of 
the  road  extends  across  the  plain- 
tiff's lots.  The  defendant  is  de- 
sirous of  obtaining  a  right  of  way 
over  the  lots  for  its  road.  Without 
objection,  its  engineer  has  gone  up- 
on the  lots  and  has  surveyed  and 
distinctly  marked,  by  stakes  stuck 
in  the  ground,  the  line  of  the  road. 
A  map  of  this  survey  has  been  made 
and  is  before  the  parties.  Under 
these  circumstances  the  deed  in 
question  is  made,  granting  a  right 
of  way  over  the  lots  for  the  con- 
struction and  operation  of  a  rail- 
road, "such  right  of  way  to  be  along 
the  line  as  surveyed  and  laid  out" 
by  the  engineer  of  the  grantee. 
The  road  was  then  constructed 
across  the  lots,  following  the  exact 
line  of  the   survey." 


1940  THE  LAW   OF  DEEDS.  [CHAP.    XXIX. 

the  deed,  and  occupied  by  the  road,  had  been  surveyed  and 
designated  by  stakes  stuck  into  the  ground,  so  that  it  could 
be  traced  without  difficulty.  The  trial  court  thereupon  over- 
ruled the  objection,  and  the  explanatory  evidence  was  re- 
ceived and  on  appeal  the  court  upheld  this  ruling  and  decided 
that  to  be  certain  which  can  be  made  certain  and  that  ex- 
trinsic evidence  is  always  admissible  for  the  purpose  of  ex- 
plaining the  calls  of  a  deed  to  make  the  deed  effectual  by 
applying  the  calls  to  the  subject  matter.^  In  another  case  a 
railroad  company  had  surveyed  and  staked  out  a  route  for  a 
railroad  and  when  about  to  commence  construction  of  the  rail- 
road over  the  land  of  an  owner  purchased  from  him  a  strip 
of  land,  which,  in  the  deed,  was  described  as :  "all  the  lands 
in  the  southwest  quarter  of  section  15,  township  9,  south  of 
range  7  west,  lying  within  50  feet  of  the  center  line  of  said 
railroad  and  containing  6.23  acres  more  or  less."  A  week  af- 
ter the  purchase,  the  railroad  company  made  a  map  and  profile 
of  the  route  intended  to  be  adopted,  which  was  filed  in  the 
proper  public  office,  but  the  railroad  was  never  constructed 
or  even  graded  over  the  land  of  the  grantor.  During  the 
lifetime  of  the  grantor,  the  entire  quarter  section  was  inclosed 
and  cultivated  by  the  grantor,  but  the  railroad  company  paid 
taxes  on  the  strip  to  a  time  when  it  executed  a  deed  to  another 
with  the  same  description  as  that  contained  in  the  deed  to 
the  railroad  company.  It  was  contended  in  an  action  of  eject- 
ment brought  by  the  grantee  from  the  railroad  company,  that 
the  deed  to  the  company  was  so  indefinite  in  the  description 
of  the  property  conveyed  as  to  be  void,  and  that  even  if  the 
description  should  be  sufficient,  it  conveyed  nothing  more  than 
a  right  of  way,  and  consequently,  when  it  was  not  used  for 
that  purpose,  the  title  reverted  to  the  original  owner.  The 
court  decided  that  the  deed  was  not  void  by  reason  of  any 
indefiniteness  in  the  description,  and  that  in  the  construction 
of   a   doubtful    description   the   position    of    the   contracting 

5  Thompson  v.  Motor  Road   Co.,      82  Cal.  497,  23  Pac.  130, 


CHAP.    XXIX.] 


DESCRirXlON. 


1941 


parties  will  be  considered  as  well  as  the  circumstances  of  the 
transaction,  and  that  the  construction  to  be  given  to  the 
conveyance  will  be  made  in  the  light  of  such  circumstances. 
Under  the  circumstances  mentioned  while  the  description  was 
not  defective,  the  court  held  that  the  interest  acquired  by  the 
railroad  company  was  not  an  absolute  title  but  was  limited 
to  the  use  for  which  the  land  was  obtained,  and  that  upon  the 
abandonment  of  that  use  the  property  would  revert,^ 

§  1016.  Suq)lusage. — The  deed  will  not  be  void  for 
uncertainty  from  the  fact  that  the  description  in  part  is  false 
or  incorrect,  if  there  are  sufficient  particulars  given  to  enable 
the  premises  intended  to  be  conveyed  to  be  identified.     Thus, 


^  Abercrombie  v.  Simmons,  71 
Kan.  538,  1  L.R.A.(N.S.)  806.  Mr. 
Chief  Justice  Johnson,  in  delivering 
the  opinion  of  the  court  said :  "On 
the  point  of  indefiniteness  of  de- 
scription, it  is  claimed  that  it  was 
impossible  to  locate  or  identify 
the  land  from  the  description 
given;  that  the  description  of  a 
part  cf  the  quarter  section  'lying 
within  50  feet  of  the  main  track 
of  the  railroad'  furnished  no  means 
of  identification  where  in  fact  no 
railroad  had  been  built.  The  agreed 
facts,  however,  show  that,  prior 
to  the  execution  of  the  deed,  the 
company  contemplated  the  construc- 
tion of  a  railroad,  over  this  land, 
and  had  actually  surveyed  and 
staked  out  a  route  and  line.  The 
map  and  profile  of  the  route  was  in 
the  course  of  preparation,  and  was 
completed  a  few  days  later,  and 
this  was  the  one  which  was  filed 
with  the  county  clerk.  The  com- 
pany was  negotiating  for  land  upon 
which  to  construct  and  operate  a 
railroad.      It    had    marked    out    on 


the  face  of  the  land  the  line  or 
track  which  it  proposed  to  build. 
The  owner  sold  it  to  the  company 
for  that  purpose,  and  obviously 
both  parties  contracted  with  ref- 
erence to  these  facts.  In  constru- 
ing a  doubtful  description  in  a  con- 
veyance, the  court  must  keep  in 
mind  the  position  of  the  contract- 
ing parties,  the  circumstances  under 
which  they  acted,  and  interpret  the 
language  of  the  instrument  in  the 
light  of  these  circumstances.  When 
so  construed,  we  may  fairly  say 
that,  as  the  only  way  of  locating 
the  strip  was  by  a  resort  to  the 
line  which  had  been  surveyed  and 
staked  out  by  the  company  as  the 
statute  authorized,  the  parties  con- 
tracted with  reference  to  this  sur- 
vey, and  it  may  be  looked  to  as  a 
part  of  the  description.  Under  the 
principle  that  that  will  be  con- 
sidered certain  which  can  be  made 
certain,  we  can  look  not  only  to  the 
survey,  but  also  to  the  map  and 
profile  made  by  the  company." 


1942 


THE  LAW   OF  DEEDS. 


[chap.    XXIX. 


where  a  lot  is  described  by  its  number  on  a  recorded  plat, 
which  in  itself  is  a  sufficient  description,  but  there  is  a  mis- 
description in  a  boundary  Hne,  such  misdescription  will  be 
rejected.'     In  a  deed  the  land  was  described  as  lot  17  of 


'Union  Railway  &  Transit  Co. 
V.  Skinner,  9  j\Io.  App.  189 ;  Thomp- 
son V.  Ela,  60  N.  H.  562;  Husbands 
V.  Stemple,  13  Mo.  App.  589 ;  Ream- 
er V.  Nesmith,  34  Cal.  624;  Irving 
V.  Cunningham,  66  Cal.  15 ;  Beau- 
mont V.  Field,  1  Barn.  &  Aid.  247; 
Norwood  V,  Byrd,  1  Rich.  135,  42 
Am.  Dec.  406;  Clark  v.  Munyan, 
22  Pick.  410,  33  Am.  Dec.  752; 
White  V.  Gay,  9  N.  H.  126,  31  Am. 
Dec.  224;  Morton  v.  Jackson,  1 
Smedes  &  M.  494,  40  Am.  Dec.  107. 
See,  also,  Shewaller  v.  Pirner,  55 
Mo.  218;  Cooley  v.  Warren,  53  Mo. 
166;  Seaman  v.  Hogeboom,  21 
Barb.  398;  Hobbs  v.  Payson,  85  Me. 
498,  27  Atl.  Rep.  519;  Sink  v.  Mc- 
Manus,  49  Hun,  583 ;  Maker  v.  La- 
zell,  83  Me.  562,  23  Am.  St.  Rep. 
795,  22  Atl.  Rep.  474;  Shackelford 
V.  Orris,  129  Ga.  791,  59  S.  E. 
112  (citing  text)  Arambula  v.  Sul- 
livan, 80  Tex.  615,  16  S.  W.  436; 
Barnard  v.  Good,  44  Tex.  638;  Cof- 
fey V.  Hendricks,  66  Tex.  Qd 
Kingston  v.  Pickens,  46  Tex.  99 
Oliver  v.  Mahoney,  61  Tex.  610 
Smith  V.  Chatham,  14  Tex.  322 
Birdseye  v.  Rogers  (Tex.  Civ. 
App.),  26  S.  W.  Rep.  841;  Peterson 
V.  Ward,  5  Tex.  Civ.  App.  208,  23 
S.  W.  Rep.  637;  Minor  v.  Powers 
(Tex.  Civ.  App.),  24  S.  W.  Rep. 
710;  Sherwood  v.  Whiting,  54  Conn. 
330,  1  Am.  St.  Rep.  116;  Evans  v. 
Greene,  21  Mo.  170;  Gibson  v. 
Bogy,  28  Mo.  478;  Rutherford  v. 
Tracy,  48  Mo.  325,  8  Am.  Rep.  104 ; 
Jamison  v.  Fopiano,  48  Mo.  194; 
West  v.   Bretelle,   115   Mo.  653,  22 


S.  W.  Rep.  705;  Bray  v.  Adams, 
114  Mo.  486,  21  S.  W.  Rep.  853; 
Johnson  v.  Simpson,  36  N.  H.  91 ; 
Harvey  v.  Mitchell,  31  N.  H.  475; 
Eastman  v.  Knight,  35  N.  H.  551 ; 
Benton  v.  Mclntyre,  64  N.  H.  598, 
15  Atl.  Rep.  413;  DriscoU  v.  Green, 
59  N.  H.  101;  Elliott  v.  Thatcher, 
2  Met.  44;  Worthington  v.  Hylyer, 
4  Mass.  196;  Melvin  v.  Proprietors 
of  Locks  and  Canals,  5  Met.  15. 
38  Am.  Dec.  384;  Bond  v.  Fay,  12 
Allen,  86;  Bosworth  v.  Sturtevant, 
2  Cush.  392;  Hastings  v.  Hastings, 
110  Mass.  280;  Morse  v.  Rogers, 
118  Mass.  573-578;  Lovejoy  v. 
Lovett,  124  Mass.  270;  Morse  v. 
Rogers,  118  Mass.  572;  Auburn 
Cong.  Church  v.  Walker,  124  Mass. 
69;  Cassidy  v.  Charlestown  Sav. 
Bank,  149  Mass.  325,  21  N.  E.  Rep. 
372;  Thompson  v.  Jones,  4  Wis. 
106;  Green  Bay  v.  Hewitt,  55  Wis. 
96,  42  Am.  Rep.  701,  12  N.  W.  Rep. 
382;  Lochte  v.  Austin,  69  Miss.  271, 
13  So.  Rep.  838;  Miller  v.  Travers, 
8  Bing.  244;  Winnipisiogee  Paper 
Co.  v.  N.  H.  Land  Co.,  59  Fed. 
Rep.  542;  Hamm  v.  San  Francisco, 
17  Fed.  Rep.  119;  Wade  v.  Deray, 

50  Cal.  376;  Wilcoxon  v.  Sprague, 

51  Cal.  640;  Reed  v.  Spicer,  27 
Cal.  57;  Jackson  v.  Clark,  7  Johns. 
217;  Baldwin  v.  Brown,  16  N.  Y. 
359;  Jackson  v.  Barringer,  15  Johns. 
471 ;  Loomis  v.  Jackson,  19  Johns. 
449;  Schoenewald  v.  Rosenstein,  25 
N.  Y.  St.  Rep.  964,  5  N.  Y.  Supp. 
766;  Robinson  v.  Kime,  70  N.  Y. 
147;  Case  v.  Dexter,  106  N.  Y.  548; 
Muldoon  V.  Deline,  135  N.  Y.  150; 


CHAP.    XXIX.] 


DESCRIPTION, 


1943 


the  original  plat  of  the  town  as  recorded,  but  the  original 
plat  did  not  contain  over  twenty-nine  lots,  and  another  plat, 
wliich,  on  account  of  defects  in  execution,  was  not  entitled 
to  record,  described  the  land  erroneously  as  lot  78.  There 
was  another  plat  which  contained  the  lot,  but  this  plat  was 
not  recorded,  and  it  was  shown  that  the  lot,  for  more  than 
twenty-five  years,  had  been  held,  taxed,  and  dealt  with  as 
lot  77.  Under  these  circumstances,  it  was  held  that  the 
deed  was  not  invalidated  for  the  error  in  the  description.® 
In  a  mortgage  several  lots  were  described  by  numbers,  with 
the  additional  clause,  "being  all  of  block  25."  This  block 
did  not  contain  the  numbers  mentioned  in  the  instrument, 
but  they  were  in  another  block.  It  appeared,  however,  that 
it  was  the  intention  of  the  mortgagor  to  mortgage  the  block 
in  which  he  resided,  and  that  he  resided  in  block  25,  and, 
accordingly,   it   was  held  that  block  25  was  subject  to  the 


Danziger  v.  Boyd,  21  J.  &  S.  398; 

Llewellyn  v.  Earl  of  Jersey,  11  M. 

&  W.  183;  Duncan  v.  Madard,  106 

Pa.    St.   562;    Wiley   v.   Lovely,  46 

Mich.  83,  8  N.  W.  Rep.  716;  Wilt 

V.  Cutler,  38  Mich.   189;  Lodge  v. 

Lee,  6  Cranch,  237,  3  L.  ed.  210; 

Land   Co.   v.    Saunders,    103   U.    S. 

316,    26    L.    ed.    546;    Jackson    v. 

Sprague,  1   Paine,  494;   Prentice  \. 

Stearns,    113  U.    S.  435,  28  L.   ed. 

1059;  White  v.  Herman,  51  111.  243, 
99  Am.  Dec.  543;  Kruse  v.  Wilson, 
79  111.  233;  Myers  v.  Ladd,  26  111. 
415;  Holston  v.  Needles,  115  111. 
461,  5  N.  E.  Rep.  530;  Stevens  v. 
Wait,  112  111.  544;  Bowen  v.  Allen, 
113  111.  53,  55  Am.  Rep.  398;  Clem- 
ents V.  Pearce,  63  Ala.  284;  Chad- 
wick  V.  Carson,  78  Ala.  116;  Bryan 
V.  Wisner,  44  La.  Ann.  832,  11  So. 
Rep.  290;  Simpson  v.  King,  1  Ired. 
Eq.  11 ;  Proctor  v.  Pool,  4  Dev. 
370;  British  and  American  Mort- 
gage Co.  v.  Long,   113  N.   C.   123, 


18  S.  E.  Rep.  165 ;  Shaffer  v.  Hahn, 
111  N.  C.  1,  15  S.  E.  Rep.  1033; 
Raymond  v.  Coffey,  5  Or.  132; 
Keith  v.  Reynolds,  3  Me.  393 ;  Cate 
v.  Thayer,  3  Me.  71;  Chandler  v. 
Green,  69  Me.  350;  Andrews  v. 
Pearson,  68  Me.  19;  Abbott  v.  Ab- 
bott, 53  Me.  356;  Jones  v.  Buck, 
54  Me.  301 ;  Getchell  v.  Whittemore, 
72  Me.  393;  Kinsey  v.  Satterth- 
waite,  88  Ind.  342.  So,  also,  where 
the  erroneous  portion  can  be  disre- 
garded :  Borchard  v.  Eastwood 
(Cal.)  65  Pac.  1047;  Goodwin  v. 
Goodwin,  113  la.  319,  85  N.  W.  31; 
Douthit  V.  Robinson  (Tex.)  39  S. 
W.  988;  Goodson  v.  Fitzgerald,  40 
Tex.  Civ.  App.  619,  90  S.  W.  898; 
Gallup  v.  Flood,  46  Tex.  Civ.  App. 
644,  103  S.  W.  426;  Risch  v.  Jen- 
sen, 92  Minn.  107,  99  N.  W.  628. 
8  Wiley  V.  Lovely,  46  Mich.  83. 
See  Vose  v.  Handy,  2  Greenl.  323, 
11  Am.  Dec.  101. 


1944  THE  LAW   OF  DEEDS..  [CHAP.    XXIX. 

mortgage.^  W^iere  there  are  several  calls  in  a  deed,  and, 
with  the  exception  of  one,  they  may  all  be  applied  upon 
the  face  of  the  earth,  constituting  a  correct  and  intelligent 
description  of  the  lot  to  which  they  refer,  the  one  that  does 
not  apply  will  be  rejected  as  surplusage,  and  the  others  will 
prevail.^  A  description  in  a  deed,  made  in  1840,  stated  that 
the  land  was  situated  in  the  county  of  Lenawee  and  territory 
of  Michigan,  and  part  of  the  land  conveyed  was  assigned  to 
a  certain  township  and  range.  The  townhsip  and  range 
described  were  in  Monroe  county,  but  not  in  Lenawee  county, 
and  Michigan  was  no  longer  a  territory  at  the  time  at  which 
the  deed  bore  date;  but,  in  the  construction  of  the  deed,  it 
was  held  to  convey  the  land  in  the  township  and  range  men- 
tioned, and  the  general  description  by  the  name  of  the  county 
was  rejected.^  If  the  deed  contains  two  descriptions,  one 
correct  and  the  other  false  in  fact,  the  latter  should  be  re- 
jected as  surplusage.^  Where  one  of  two  different  descrip- 
tions applies  to  land  to  which  the  grantor  had  title,  and  the 
other  to  land  which  he  did  not  own,  the  former  will  be  taken 
as  the  true  description,  and  the  latter  will  be  rejected  as  false.* 

3  Sharp  V.  Thompson,  100  111.  447,  tors   of    Locks,    etc.,   8    How.    274, 

39  Am.  Rep.  61.  12  L.  ed.  1077;  Robertson  v.  Mos- 

1  Chandler  v.  Green,  69  Me.  350.  son,    26    Tex.     248;     Eastman    v. 

2  Wilt  V.  Cutler,  38  Mich.  189.  Knight,  35  N.  H.  551;  Thompson 
But  if  all  the  particulars  are  essen-  v.  Jones,  4  Wis.  106;  White  v.  Gay, 
tial  to  the  description,  the  estate  9  N.  H.  126,  31  Am.  Dec.  224; 
conveyed  must  agree  with  every  Jackson  v.  Root,  18  Johns.  60;  Gib- 
part  of  the  description.  See  Peck  son  v.  Bogy,  28  Mo.  478;  Myers  v. 
V.  Mallams,  10  N.  Y.  533;  Kruse  Ladd,  26  111.  415;  Norwood  v.  Byrd, 
v.  Wilson,  79  111.  235.  1  Rich.  135,  42  Am.  Dec.  407.    And 

3  Reed  v.  Spicer,  27  Cal.  57.  And  see,  also,  Hibbard  v.  Hurlburt,  10 
see,  also,  Harvey  v.  Mitchell,  31  Vt.  173;  Jackson  v.  Barringer,  15 
N.  H.  575;  Abbott  v.  Abbott,  53  Johns.  471;  Clough  v.  Bowman,  IS 
Me.  356;  Bond  v.  Fay,  12  Allen,  N.  H.  504;  Goodright  v.  Pears,  11 
86;   Lane  v.  Thompson,  43   N.   H.  East,  58. 

320;  Vose  v.  Handy,  2  Greenl.  322,  *  Piper  v.  True,  36  CaL  606. 

11  Am.  Dec.  101;  Reed  v.  Proprie- 


CHAP.    XXIX.]  DESCRIPTION.  1945 

If  sufficient  remains  after  rejecting  a  part  of  the  description 
which  is  false,  the  deed  will  take  effect.^ 

§  1017.  Illustrations. — A  deed  described  the  land  con- 
veyed as  the  "west  half  of  lot  284,  and  half  of  gore,  both 
containing  fifty  acres,  being  the  same,  more  or  less,  as  sur- 
veyed by  Israel  Johnson  and  Isaac  Boynton,  by  order  of  the 
court  of  sessions."  As  a  matter  of  fact  the  persons  named 
never  surveyed  the  land  described  by  order  of  any  court,  but, 
as  a  committee  of  the  court  of  common  pleas,  duly  parti- 
tioned the  lot  and  assigned  the  west  half  to  the  grantor. 
The  court  held  that  if  the  words  relating  to  the  survey  were 
to  be  regarded  as  erroneous,  there  was  a  sufficient  descrip- 
tion in  the  remaining  language,  "west  half  of  lot  284,"  to 
pass  the  title.®  In  a  deed  the  description  was :  "A  certain 
sawmill  site  in  Levant  village,  with  the  sawmill,  machinery, 
and  fixtures  thereon  standing,  including  shingle  machine  and 
cutting-off  saw,  also  one  undivided  fourth  part  of  mill  com- 
mon," with  other  parcels  particularly  described,  and  adding, 
"meaning  to  convey  to  said  Baxter  all  the  premises  which 
said  William  Bradbury  purchased  of  Benjamin  Garland,  by 
deed,  dated  March  19,  1832,  and  recorded  in  Penobscot  Reg- 
istry, book  28,  page  448,  with  all  the  privileges,  and  subject 
to  all  the  restrictions  therein  expressed,  reference  thereto  for 
a  more  particular  description  of  said  premises."  The  court 
decided  that  by  this  description  the  mill  and  the  whole  land 
thereunder  would  pass,  notwithstanding  that  by  the  deed  to 
which  reference  was  had,  the  grantor  acquired  but  a  part 

5  Irving  V.   Cunningham,  66  Cal.  ed    fourth    part    of    the    property. 

15.     But  where  a  grantor  did  not  The  court  cannot  reject  the  word 

have  an  interest  beyond   an  estate  "divided"     from     the     description : 

for  life,   a   deed   executed  by  him  Ford    v.    Unity    Church    Soc,    120 

purporting  to  convey  "one  divided  Mo.  498,  23  L.R.A.  561,  41  Am.  St. 

fourth  part"  of  the  land,  cannot  be  Rep.  711. 
construed  as  conveying  an  undivid-  ^  Abbott  v.  Abbott,  53  Me.  356. 


1946  THE  LAW   OF  DEEDS.  [CHAP.    XXIX. 

of  the  property  upon  which  the  mill  was  erected.'  A  deed 
bearing  date  of  April  13,  1838,  described  the  lands  intended 
to  be  conveyed,  as  described  in  a  deed  from  A  to  the  grantor, 
"of  even  date  herewith,"  referring  to  the  latter  deed  for  a 
description  of  the  premises.  Only  one  deed  had  been  made 
by  A  to  the  grantor,  and  this  deed  was  dated  April  5,  1838. 
In  the  construction  of  the  description  the  court  rejected  the 
words  "of  even  date  herewith"  as  erroneous.  But  as  there 
was  no  doubt  as  to  the  deed  or  the  land  intended,  the  title 
was  held  to  pass.^  So  in  the  case  of  a  devise  of  "all  my 
homestead  farm,  being  the  same  farm  whereon  I  now  live,  and 
the  same  which  was  devised  to  me  by  my  honored  father," 
the  whole  of  the  homestead  farm  will  pass,  although  the 
fact  may  be  that  a  part  of  the  farm  was  not  devised  by 
the  father.^  Where  an  island  is  described  by  its  name,  to 
which  is  added  a  description  by  courses  and  distances,  and 
the  latter  on  resurvey  are  found  to  exclude  a  part  of  the 
island,  the  whole  island  will  pass  by  force  of  the  first  descrip- 
tion.^ An  owner  of  land  lying  partly  in  lot  number  10  and 
partly  in  lot  number  9  conveyed  a  tract  of  land  which  he 
described  in  the  deed  as  lot  number  10,  but  bounded  on  all 
sides  by  the  land  of  other  persons.  The  court  held  that  the 
whole  tract  lying  in  both  lots  was  conveyed  by  the  deed, 
although  mistakes  had  been  made  as  to  the  owners  of  the 
adjoining  lots  in  the  description.'    The  description  in  a  deed 

'  Crosby  v.  Bradbury,  20  Me.  61,  Where    a    deed     in    the    granting 

and   see  cases  cited   therein.  clause    declared    that    the    grantor 

8  Eastman  v.  Knight,  35  N.  H.  "releases,  quitclaims,  and  conveys" 
551,  and  cases  cited.  to  the  grantee,  "and  its  successors 

9  Drr •"  V.  Drew,  28  N.  H.  (8  and  assigns  forever,  all  his  right, 
Fost.;  489.  This  case  is  frequently  title,  and  interest  of  every  name  and 
cited  as  an  authority,  and  is  valu-  nature,  legal  or  equitable,  in  and 
able  for  its  examination  and  col-  to"  the  land,  and  in  a  subsequent 
lection  of  authorities.  clause,    declares   that    "the    interest 

1  Lodge's  Lessee  v.  Lee,  6  Cranch,  and  title  intended  to  be  conveyed 
237,  3  L.  ed.  210.  by  this  deed  is  only  that  acquired 

2  Tenny    v.    Beard,    5    N.    11.   58.       by"  the  said  grantor  "by  virtue  of" 


CHAP.    XXIX.]  DESCRIPTION.  1947 

was:  "All  that  my  farm  of  land  in  said  Washington,  on 
which  I  now  dwell,  being  lot  No.  17  in  the  first  division  of 
lands  there,  containing  one  hundred  acres,  with  my  dwelling- 
house  and  barn  thereon  standing,  bounding  west  on  land  of 
Joseph  Chaple,  northerly  by  a  pond,  easterly  by  lot  No.  18, 
and  southerly  by  lot  No.  19,  having  a  highway  through  it." 
The  fact  was  that  the  limits  of  the  lot  were  correctly  described, 
but  the  farm  on  which  the  grantor  lived  was  not  lot  No.  17, 
but  a  different  parcel  of  land.  The  court  decided  that  this 
false  particular  of  the  description  should  be  rejected,  because 
the  description  was  sufficiently  definite  without  it,  for,  if 
considered  as  an  essential  part  of  the  description,  the  effect 
would  be  to  nullify  the  deed.^ 

§  1018.  Subject  continued. — In  designating  a  lot,  the 
number  of  it  was  not  given,  but  it  was  described  as  ad- 
joining the  land  of  four  several  individuals.  But  this  de- 
scription taken  in  full  would  include  three  several  lots,  and 
a  quantity  of  land  exceeding  greatly  that  mentioned  in  the 
deed.  If,  however,  one  of  the  names  of  the  persons  should 
be  rejected,  one  lot  only  would  be  definitely  designated.  Under 
these  circumstances,  it  was  evident  that  the  statement  that 
such  person  was  an  adjoining  owner  was  a  mistake,  and,  taking 
this  view,  the  court  decided  that  this  part  of  the  description 

a    certain    deed    which    had    been  elusion  of  the  farm,   as  the  lot  is 

previously    executed    to    him,    and  mentioned    as    descriptive    of    the 

conveying,   it    is   assumed,   only  an  farm,  and  not  the  farm  as  descrip- 

undivided  half  of  the  land,  the  two  tive  of  the  lot.    Indeed,  rather  than 

clauses  are  inconsistent.    The  grant-  the  deed  should  be  deemed  void,  a 

ing    clause    will    prevail,    and    the  construction   ought  to  be   adopted, 

whole  interest  of  the  grantor  will  on   which   both   the    farm   and   the 

pass   by  the   deed :     Green   Bay  v.  lot  should  be  conveyed ;  for  a  farm 

Hewett,   55  Wis.   96,  42  Am.   Rep.  on  which  the  mortgagor  then  lived 

701,   12   N.   W.  382.  is    certainly    intended    to    be    con- 

8  Worthington  v.  Hylyer,  4  Mass.  veyed ;  and  the  lot  is  also  bounded 

196.     The  court  said:     "For  by  no  as  descriptive  of,  and  may  therefoi:e 

construction  can  lot  No.  17  be  con-  be  considered  as  part  of  the  prem- 

sidered    as    conveyed,    to    the    ex-  ises." 


1948  THE  LAW   OF  DEEDS.  [CHAP.    XXIX. 

slioiild  be  rejected  as  such.*  A  description  was :  "All  my 
real  property,  or  homestead,  so  called,  lying  and  being  iu  Dart- 
mouth, consisting  of  a  dwelling-house  and  outbuildings,  to- 
gether with  about  thirty  acres  of  land,  let  the  same  be  more 
or  less,  with  all  the  orchards,  privileges,  and  appurtenances 
thereto  belonging  or  any  way  appertaining — more  particular 
boundaries,  reference  may  be  had  to  a  deed  given  by  Clark 
Ricketson  to  David  Thatcher,  of  the  above-mentioned  prem- 
ises." When  the  deed  was  executed,  David  Thatcher  owned 
only  a  part  of  the  land  which  he  had  purchased  from  Ricket- 
son. He  had,  however,  bought  about  as  much  from  Leban 
Thatcher  adjoining  the  land  purchased  by  him,  David,  from 
Ricketson,  and  in  fact,  had  about  the  same  quantity  of  land 
altogether  as  he  had  purchased  from  the  latter.  The  prin- 
cipal part  of  the  land  conveyed  came  from  Ricketson,  but 
by  inadvertence  the  deed  from  Ricketson  to  David  Thatcher 
was  referred  to  for  particular  boundaries.  But  the  grantee 
entered  into  possession  of  the  whole,  the  part  purchased  by 
David  Thatcher  from  Ricketson  as  well  as  the  part  purchased 
from  Leban  Thatcher.  The  reference  to  Ricketson's  deed 
was  held  to  be  a  mistake,  and  was  rejected  as  an  inadvertency 
in  the  description.^  At  the  time  the  grantor  executed  a  deed 
he  had  been  in  possession  of  and  claimed  to  own  several 
tracts  of  land  adjoining  each  other.  The  whole  aggregated 
about  two  hundred  and  eighty  acres.  His  deed  described 
the  land  conveyed  as  "a  certain  tract  or  parcel  of  land, 
situate  in  Falmouth,  containing  two  hundred  and  thirty  acres, 
more  or  less,  all  the  lands  which  I  own  in  said  town,  the 
butts  and  bounds  may  be  found  in  the  county  records  of 
Portland."  By  an  examination  of  the  records  it  appeared 
that  several  different  tracts  of  land  adjoining  each  other 
had  been  conveyed  to  the  grantor,  and  these,  in  the  aggregate, 
contained  two  hundred  and  thirty-five  acres.     But  in  addition 

■4  White  V.  Gay,  9  N.  H.  126,  31  5  Thatcher   v.    Howland,   2   Met. 

Am.  Dec.  224,  and  cases  cited.  41. 


CHAP.    XAIX.J  DESCRIPTION.  1949 

to  these  several  tracts  there  was  another  adjoining  them.  To 
this  latter  parcel  it  did  not  appear  that  the  grantor  had  any 
title  apparent  by  the  record,  or  any  other  than  a  title  acquired 
by  possession.  But  the  whole  of  the  land,  including  this  latter 
tract,  was  held  to  pass  by  the  description.^  If  the  land  is 
described  as  the  whole  of  a  certain  farm,  and  is  again  de- 
scribed in  the  deed  by  courses  and  distances,  which,  how- 
ever, do  not  embrace  the  whole  farm,  this  latter  description 
will  be  rejected,  and  the  title  to  the  whole  farm  will  pass  by 
the  deed.'  In  another  case,  a  person  owned  a  farm,  title  to 
which  he  had  acquired  by  two  deeds,  the  first  conveying  to 
him  an  undivided  one-third  part,  and  the  second  the  residue. 
He  executed  a  mortgage  deed  of  a  piece  of  land,  describing 
it  as  being  the  same  land  mentioned  in  his  first  deed,  to  which 
he  referred,  and  as  being  his  whole  farm.  The  reference 
to  the  first  deed  was  held  to  be  intended  for  the  description 
of  the  land  only,  and  not  as  describing  the  quantity  of  estate 
or  interest  affected  by  the  mortgage.  In  other  words,  the 
whole  farm  was  considered  to  be  embraced  by  the  mortgage.* 
In  a  deed  under  which  the  grantor  held,  three  adjoining 
parcels  of  land  were  conveyed,  each  of  which  was  particularly 
described.  He  subsequently  executed  a  deed,  which  com- 
menced in  the  language  of  the  former  deed  as  a  conveyance 
of  three  parcels,  but  it  described  only  the  first  parcel,  and 
referred  to  the  deed  from  his  grantor  to  himself.  All  three 
parcels,  the  court  held,  passed  by  the  deed.' 

§  1019.  Parcel  of  larger  tract. — A  deed  conveying  a 
part  of  a  larger  tract  of  land,  but  not  locating  the  part 
conveyed,  is  construed  as  conveying  an  undivided  interest 
in  the  larger  tract.    If  the  deed,  however,  attempts  to  describe 

6  Field  V.  Huston,  21   Me.  69.  »  Willard    v.    Moulton,   4   Greenl. 

f  Keith  V.  Reynolds,  3  Greenl.  303.  14. 

And  see  Gate  v.  Thayer,  3  Greenl.  9  Child  v.  Fickett,  4  GreenL  472. 
71. 


1950  THE   LAW   OF  DEEDS.  [CHAP.    XXIX. 

a  Specific  portion,  designating  the  number  of  acres,  and  de- 
scribing it  as  a  parcel  of  a  larger  tract,  but  the  calls  do  not 
describe  the  tract  of  land  intended  to  be  conveyed,  or  any 
tract  of  land,  the  deed  does  not  convey  an  interest  in.  the 
whole  tract,  nor  does  it  make  the  grantee  a  tenant  in  com- 
mon in  the  larger  tract  with  the  grantor.*  "Where  a  deed 
is  of  a  given  quantity  of  land,  parcel  of  a  larger  tract,  and 
the  deed  fails  to  locate  the  quantity  so  conveyed  by  a  sufficient 
description,  the  grantee,  on  delivering  the  deed,  becomes  in- 
terested in  all  the  lands  embraced  within  the  larger  area  as 
tenant  in  common  with  his  grantor,  and  as  such  tenant  the 
grantee  can  claim  a  partition  under  proceedings  instituted  for 
that  purpose,  or  alternatively,  a  partition  may  be  made  by 
amicable  agreement  between  the  parties."  *  Where  the  owners 
of  a  quarter  section  of  land  had  conveyed  twenty-two  and 
twenty-nine  hundreths  acres  taken  from  the  southeasterly  part 
of  the  quarter  section,  and  subsequently  executed  a  deed, 
describing  the  land  conveyed  as  "the  east  one  hundred  acres 
of  the  quarter  section,  commencing  on  the  west  bank  of  the 
Feather  river,  and  running  back  to  the  westward  far  enough 
so  as  to  contain  one  hundred  acres  of  the  quarter  section, 

iGrogan  v.  Vache,  45  Cal.  610;  son,    14   Wend.   619,   28  Am.   Dec. 

Lawrence  v.   Ballon,   37   Cal.   518;  550;   The  Long   Island   R.   R.   Co. 

Schenck  v.  Evoy,  24  Cal.  104,  110.  v.  Conklin,  29  N.  Y.  572." 

2Schenck   v.   Evoy,   24   Cal.    110.  But  in  Grogan  v.  Vache,  45  Cal. 

The  court  quote  this  language  with  610,  613,  the  court  said  that  it  could 

approval  in  Lawrence  v.  Ballon,  37  find   no   case  in   which   a  deed   at- 

Cal.   518,   520,   and   say:      "And    in  tempting  to   convey  a   parcel   of  a 

view  of  the  nature  of  the  present  larger  tract,  but  not  describing  the 

action,  we  add  that  if  the  grantor  land    intended    to    be    conveyed    so 

or  his  grantees  exclude  him   from  that  it  may  be  located,  "is  held  to 

the    possession,    he    may    maintain  operate,  by  reason  of  such  insuffi- 

ejectment    against    them.      To    the  cient    description     of    the     specific 

same   effect,   see,   also,   the   follow-  tract,   as  a   conveyance   of   an   un- 

ing    cases:      Lick    v.    O'Donnell,    3  divided  interest  in  the  larger  tract; 

Cal.  59,  58  Am.  Dec.  383;  Gibbs  v.  and,    in    our    opinion,    there    is    no 

Swift,    12    Cush.    393;     Sheafe    v.  rule  for  the  construction  of  deeds 

Wait,  30  Vt.  735  ;  Jackson  v.  Living-  which    will    work    that    result." 
ston,  7  Wend.  136;  Corbin  v.  Jack- 


CHAP.    XXIX.]  DESCRIPTION.  1951 

excepting  therefrom  a  small  piece  of  land,"  sold  by  the  owners 
as  stated,  the  court  construed  the  deed  as  conveying  only  sev- 
enty-seven and  seventy-one  hundreths  acres.'  A  deed  which 
describes  the  land  conveyed  as  "324  acres  of  land,  part  of 
a  certain  tract"  which  is  described,  and  which  fails  to  identify 
the  part  of  the  tract  to  be  conveyed,  and  which  fails  to  state 
any  facts  by  which  its  identity  can  be  established,  is  void.* 
In  the  language  of  Mr.  Justice  Smith :  'The  office  of  the 
descriptive  words  is  to  ascertain  and  to  identify  an  object, 
and  parol  proof  is  heard,  not  to  add  to  or  enlarge  their 
scope,  but  to  fit  the  description  to  the  thing  described.  When 
they  are  too  vague  to  admit  of  this,  the  instrument  in  which 
they  are  contained  becomes  inoperative  and  void."  ^  A  con- 
tract for  the  purchase  of  a  tract  of  a  number  of  acres  from  a 
larger  tract,  without  stating  where  it  is  to  be  taken  off  is  so 
vague  and  indefinite  that  specific  performance  will  not  be  de- 
creed.' 

§  1020.     Reference  to  maps  or  other  deeds. — A  deed, 

for  a  description  of  the  land  conveyed,  may  refer  to  another 
deed  or  to  a  map,  and  the  deed  or  map  to  which  reference 
is  thus  made  is  considered  as  incorporated  in  the  deed  itself.' 

3  Cox  V.   Hayes,  64   Cal.   32.  '  Lippett    v.    Kelly,   46    Vt.    516; 

*  Catliey     v.     Buchanan     Lumber  Powers    v.    Jackson,    SO    Cal.    429 ; 

Co.,   151   N.   C.   592,  66   S.   E.   580.  Vance  v.   Fore,  24  Cal.  444;   Foss 

See,  also,   Skoukup  v.  Invest.   Co.,  v.  Crisp,  20  Pick.  121 ;  Schenley  v. 

84  la.  448,  51   N.  W.   167,  35  Am.  Pittsburgh,    104   Pa.    St.   472;   City 

St.     Rep.     317;     Savage     v.     Cant  of  Alton  v.  Illinois  etc.  Co.,  12  111. 

(Tenn.)  57  S.  W.  170.  38,  52  Am.  Dec.  479;  Waterman  v. 

5  Harrison  v.  Hahn,  95  N.  C.  28.  Andrews,   14  R.  I.  589;   Wuesthoff 

eCrier  v.  Rhyno,  69  N.  C.  350.  v.  Seymour,  22  N.  J.  Eq.  66;  Ruth- 
See,  also,  Harris  v.  Woodward,  130  erford  v.  Tracy,  48  Mo.  325,  8  Am. 
N.  C.  580,  41  S.  E.  790;  Dickens  v.  Rep.  104;  Allen  v.  Taft,  6  Gray, 
Barnes,  79  N.  C.  409;  Allen  v.  552;  Hudson  v.  Irwin,  50  Cal.  450; 
Chambers,  39  N.  C.  125 ;  Harrell  St.  Louis  v.  Wiggin's  Ferry  Co., 
V.  Butler,  92  N.  C.  20;  Robeson  v.  15  Mo.  App.  227;  Boylston  v.  Car-  . 
Lewis,  64  N.  C.  734;  Murdock  v.  ver,  11  Mass.  515;  Dolde  v.  Vo- 
Anderson,  57  N.  C.  77.  dicka,  49  Mo.  100;  Reed  v.  Lammel, 


1952 


THE   LAW   OF   DEEDS. 


[chap.    XXIX. 


Where  the  description  is  by  courses  and  monuments  and 
boundary  Hues  of  other  tracts  of  land,  and  then  the  deed 
declares  that  the  description  already  made  is  to  be  according 


28  Minn.  306;  Lunt  v.  Holland,  14 
Mass.  149;  Ferris  v.  Coover,  10 
Cal.  622;  Shirras  v.  Caig,  7  Cranch, 
48;  Davis  v.  Rainsford,  17  Mass. 
207;  Morgan  v.  Moore,  3  Gray,  319; 
Thomas  v.  Patten,  13  Me.  329; 
Kennebec  Purchase  v.  Tiffany,  1 
Greenl.  (1  Me.)  219,  10  Am.  Dec. 
60;  McDonald  v.  Lindall,  3  Rawle, 
496 ;  Farnsworth  v.  Taylor,  9  Gray, 
162;  Chamberlain  v.  Bradley,  101 
Mass.  191,  3  Am.  Rep.  331 ;  Fox  v. 
Union  Sugar  Co.,  109  Mass.  292; 
Stetson  V.'  Dow,  16  Gray,  374 ;  Mc- 
Causland  v.  Fleming,  63  Pa.  St.  36 ; 
Jenks  V.  Ward,  4  Mich.  404;  Allen 
V.  Bates,  6  Pick.  460;  Knight  v. 
Dyer,  57  Me.  176,  99  Am.  Dec.  765 ; 
Periy  v.  Binney,  103  Mass.  156.  See 
Read  v.  Cramer,  1  Gre€n  Ch.  277, 
34  Am.  Dec.  204.  And  see,  Turnbull 
V.  Schroeder,  29  Minn.  49;  Love- 
joy  V.  Lovett,  124  Mass.  270;  Wal- 
ker V.  Boynton,  120  Mass.  349; 
Quinin  v.  Reimers,  46  Mich.  605; 
Auburn  Church  v.  Walker,  124 
Mass.  69 ;  Boston  Water  Power  Co. 
V.  Boston,  127  Mass.  374;  Billings- 
ley  V.  Bates,  30  Ala.  378,  68  Am. 
Dec.  126;  Union  Railway  &  Tran- 
sit Co.  V.  Skinner,  9  Mo.  App.  189 ; 
Baxter  v.  Arnold,  114  Mass.  577; 
Twogood  V.  Hoyt,  42  Mich.  609; 
Climer  v.  Wallace,  28  Mo.  556,  75 
Am.  Dec.  135;  Jarstadt  v.  Morgan, 
48  Wis.  245 ;  Tate  v.  Gray,  1  Swan, 
73;  Van  Blarcom  v.  Kip,  2  Dutch. 
351;  Montgomery  v.  Carlton,  56 
Tex.  431;  Caldwell  v.  Center,  30 
Cal.  543,  89  Am.  Dec.  131;  Sim- 
mons   V.    Johnson,    14    Wis.    526; 


Whiting  V.  Dewey,  15  Pick.  434 
Needham  v.  Judson,  101  Mass.  161 
Chapman  v.  Pollack,  70  Cal.  487 
Murray  v.  Klinzing,  64  Conn.  78 
King  V.  Sears,  91  Ga.  577;  City  of 
St.  Louis  V.  Railway  Co.,  114  Mo. 
13 ;  Overland  v.  Menzzer,  83  Tex. 
122;  Plummer  v.  Gould,  92  Mich. 
1,  31  Am.  St.  Rep.  567;  Rupert  v. 
Penner,  35  Neb.  587;  Campbell  v. 
Morgan,  22  N.  Y.  Supp.  1001; 
Whitehead  v.  Ragan,  106  Mo.  231; 
Young  V.  Cosgrove,  83  Iowa,  682; 
O'Herrin  v.  Brooks,  67  Miss.  266, 
6  So.  Rep.  844;  Heffelman  v.  Ot- 
sego Water  Co.,  78  Mich.  121,  43 
N.  W.  Rep.  1096;  Marvin  v.  Elliott, 
99  Mo.  616;  Miller  v.  Topeka  Land 
Co.,  44  Kan.  354,  24  Pac.  Rep.  420 ; 
Prentice  v.  Northern  Pac.  R.  R. 
Co.,  154  U.  S.  163,  38  L.  ed.  947; 
Winnipisiogee  Paper  Co.  v.  New 
Hampshire  Land  Co.,  59  Fed.  Rep. 
542;  Sanborn  v.  Mueller,  38  Minn. 
27,  35  N.  W.  Rep.  666;  Wright  v. 
Lassiter,  71  Tex.  640;  Sink  v.  Mc- 
Manus,  49  Hun,  583;  Midyett  v. 
Wharton,  102  N.  C.  14;  Redd  v. 
Murry,  95  Cal.  48;  Bohrer  v.  Lange, 
44  Minn.  281 ;  Masterson  v.  Munro, 
105  Cal.  431,  45  Am.  St.  Rep.  57; 
Payne  v.  English,  79  Cal.  540; 
Slauson  v.  Transp.  Co.,  99  Wis.  20, 
40  L.R.A.  825,  74  N.  W.  574.  See, 
also,  Rupert  v.  Penner,  35  Neb.  587, 
17  L.R.A.  824,  53  N.  W.  598; 
Burcher  v.  Overlees,  6  Ind.  Ter. 
144,  89  S.  W.  1021;  Clark  v.  Hutz- 
ler,  96  Va.  73,  30  S.  E.  469 ;  Lum- 
ber Co.  v.  Ellis-Young  Co.,  55  Fla. 
256,  45  So.  826;  U.  S.  Blowpipe  Co. 


CHAP.    XXIX.] 


DESCRIPTION. 


1953 


to  a  survey  previously  made  by  a  certain  person,  the  survey 
by  such  reference  is  incorporated  into  the  deed.  The  title 
of  the  grantee  extends  only  to  the  land  contained  within  the 
exterior  lines  of  such  survey.^  Where  a  recorded  plat  shows 
the  existence  of  a  street  or  alley,  and  land  is  conveyed  by 
reference  to  such  plat,  a  street  or  alley  is  necessarily  excluded 
from  the  deed.  The  grantee  is  charged  with  notice  of  the 
streets  and  alleys  shown  by  the  map.^  If  the  deed  refers  to 
a  plat,  containing  upon  its  face  that  to  which  the  expressions 
contained  in  the  deed  may  be  applied,  the  court  will  not  re- 
ject the  words  of  the  deed,  if  it  can  connect  the  deed  and 
plat  in  construction.^  Where  a  question  arises  as  to  the  true 
location  of  the  boundary  line  between  two  town  lots,  if  the 
lots  are  described  by  numbers  only,  it  may  be  that  the  boun- 
dary recognized  by  actual  use  and  occupation  is  the  one  in- 
tended. But  when  the  lots  are  referred  to  "as  known  and 
designated  in  the  plan"  of  the  town,  and  the  plan  contains  a 


V.  Spencer,  46  W.  Va.  590,  33  S.  E. 
342.  So  reference  may  be  made  to 
plat  and  field  notes  in  the  general 
land  office:  Oil  Co.  v.  Kimball 
(Tex.)  114  S.  W.  662.  A  deed 
describing  the  land  conveyed  as  a 
lot  laid  out  on  a  certain  plat  in- 
corporates the  plat  as  a  part  of  the 
deed  to  the  same  extent  as  if  the 
plat  were  copied  into  it :  Cook  v. 
Hensler  (Wash.)  107  Pac.  178. 
Generall}',  the  reference  to  maps, 
plats  or  field  notes  is  equivalent  to 
incorporating  them  in  the  deed : 
Little  V.  Williams,  88  Ark.  37,  113 
S.  W.  340;  Buckley  v.  Mohr,  125 
Cal.  xix,  58  Pac.  261;  Armstrong 
V.  Brownfield,  32  Kan.  116,  4  Pac. 
185;  Chicago  v.  Hogberg,  217  111. 
180,  75  N.  E.  242;  Barringer  v. 
Davis,  120  N.  W.  65;  Knowles  v. 
Bean,  87  Me.  331,  32  Atl.  1017; 
Bradshaw  v.  Edelen,  194  Mo.  640, 
Deeds,  Vol.  H.— 123 


92  S.  W.  691 ;  Nicolin  v.  Schneider- 
han,  Z1  ^linn.  63,  33  N.  W.  2,Z ;  St. 
Louis  V.  ]\Iissouri  Pac.  R.  Co.,  114 
Mo.  13,  21  S.  W.  202;  Turner  v. 
Union  Pac.  R.  Co.,  112  Mo.  542,  20 
S.  W.  673;  Davidson  v.  Arledge, 
97  N.  C.  172,  2  S.  E.  378;  Rand 
V.  Cartwright,  82  Tex.  399,  18  S. 
W.  794;  Poison  v.  Aberdeen,  44 
Wash.    155,  87   Pac.   73. 

8  Hudson  V.  Irwin,  50  Cal.  450. 
A  description  of  a  block  of  land  by 
a  number  according  to  the  official 
map  will  prevail  over  a  description 
of  the  block  by  metes  and  bounds 
if  there  be  a  conflict :  Masterson  v. 
Munro,  105  Cal.  431,  45  Am.  St. 
Rep.  57. 

^  Burbach  v.  Schweinler,  56  Wis. 
386. 

^  City  of  Alton  v.  Illinois  Transp. 
Co.,  12  111.  2&,  52  Am.  Dec  479. 


1954  THE  LAW   OF   DEEDS.  [CHAP.    XXIX. 

specific  description  of  the  lots,  the  deed  has  the  same  effect 
as  if  the  description  contained  in  the  plan  were  incorporated 
in  the  deed,  and  it  cannot  be  shown  by  parol  that  the  intention 
was  that  the  boundaries  should  be  different.^  The  deed  re^ 
f erred  to  and  the  deed  so  referring,  when  taken  together,  must 
be  certain  in  description  as  to  the  land  intended  to  be  con- 
veyed. When  land  is  described  by  reference  to  certain  de- 
grees of  latitude  and  also  to  a  certain  map,  the  degrees  of 
latitude,  in  case  of  a  conflict  between  the  two  descriptions,  will 
be  rejected,  as  being  less  certain  than  the  map.*  If  the  descrip- 
tion of  the  deed  referred  to  is  otherwise  sufficient,  the  fact 
that  such  deed  is  not  recorded  in  the  county  in  which  it  is  said 
to  be  recorded,  is  immaterial.^  Where  the  land  conveyed  is 
described  by  lot  and  block,  with  an  additional  description  by 
metes  and  bounds,  containing  a  less  quantity  of  land  than  the 
lot,  the  intention  of  the  grantor  is  to  convey  the  whole  lot.' 
And  where  the  land  is  described  as  that  conveyed  to  the  grant- 
or by  another  deed,  to  which  reference  is  made  for  a  particular 
description,  the  grantee  will  not  obtain  title  to  a  lot  excepted 
from  the  deed  thus  referred  to,  notwithstanding  that  the  grant- 
or, at  the  time  of  the  execution  of  the  latter  deed,  had  title 
to  the  excepted  lot.''  It  does  not  necessarily  follow  that  a 
particular  description  in  a  deed  is  to  be  enlarged  by  a  succeed- 
ing general  description,  by  way  of  reference  to  and  adoption 
of  the  description  contained  in  a  former  deed.'    A  deed  con- 

2David6©r  r.   -Ajledge,  88  N.  C.  or   alleys   laid   out   on   a   map   and 

326.  dedicated    to    public    use    is    void: 

8  Caldwell  V.  Center,  30  Cal.  539;  Moose  v.  Carson,  104  N.  C.  431 ;  17 

89  Am.  Dec.  131.  Am.   St.   Rep.  681. 

*Mayo  V.  Mazcaux,  38  Cal.  442.  "^  Getchell  v.  Whittemore,  72  Me. 

See,    also,    Poorman   v.    Miller,    44  393. 
Cal.  269.  ®  Brunswick    Savings    Institution 

6  Saunders  v.  Schmaelzle,  49  Cal.  v.  Crossman,  76  Me.  577;  Lovejoy 

59.  V.  Lovett,  124  Mass.  270.     A  map 

6  Rutherford  v.  Tracy,  48  Mo.  pasted  by  the  recorder  at  a  partic- 
325;  8  Am.  Rep.  104.  .A.  subsequent  ular  page  of  the  record  is  sufficient- 
conveyance  by  a  grantor  of  streets  ly  identified  by  a  deed  which  refeca 


CHAP.    XXIX.] 


DESCRIPTION. 


1955 


taining  a  description,  and  referring  to  a  map  having  lines 
drawn  i^on  it,  and  marking  the  natural  boundaries  and  the 
natural  objects  delineated  upon  its  surface,  should  be  consid- 
ered as  giving  the  true  description  of  the  land,  as  much  as  if 
the  map  were  marked  down  in  the  deed.^  If  any  competent 
surveyor  can  locate  the  land  and  ascertain  the  dimensions 
of  the  various  parcels,  the  map  is  sufficient.^  But  a  surveyor 
must  have  data,  and  cannot  determine  lines  and  fix  monu- 
ments according  to  his  own  ideas. ^  For  the  purpose  of  show- 
ing lines  and  boundaries,  it  can  always  be  proven  where  the 
survey  actually  ran.^  Although  the  plat  may  be  defective 
under  a  statute  authorizing  the  recordation  of  town  plats, 
yet  if  a  sale  is  made  by  the  owner  according  to  such  plat  the 
deed  will  convey  the  land  included  in  such  plat.*  But  if  it 
is  clearly  shown  that  the  intent  of  the  parties  was  not  to 
convey  according  to  the  plat,  the  intent  will  prevail.^ 


to  it  as  "recorded"  in  such  a  book 
and  page :  McCulloiigh  v.  Olds,  108 
Cal.  529. 

9  Chapman  v.  Polack,  70  Cal.  487 ; 
Slauson  v.  Goodrich  Transporta- 
tion Co.,  99  Wis.  20,  40  L.R.A.  825, 
74  N.  W.  574  (quoting  this  section 
of  the  text.) 

^  Village  of  Auburn  v.  Goodwin, 
128  III.  58. 

2  Jones  V.  Lee,  11  Mich.  37;  Fish- 
er V.  Bowling,  66  Mich.  370. 

SEuliss  V.  McAdams,  108  N.  C. 
507. 

*  Schweiss  v.  WoodruflF,  IZ  Mich. 
473,  41   N.  W.  511. 

5  Owsley  V.  Johnson,  95  Minn. 
168,  103  N.  W.  903.  For  other 
cases  where  deeds  have  conveyed 
lands  with  references  to  maps  and 
surveys,  see  Board  of  Park  Com- 
missioners V.  Taylor,  133  Iowa,  453, 


108  N.  W.  927;  Beardsley  v.  Town 
of  Nashville,  64  Ark.  240,  41  S.  W. 
853;  Sanchez  v.  Grace,  114  Cal. 
295,  46  Pac.  2;  Fisk  v.  Ley,  76 
Conn.  295,  56  Atl.  559;  Overland 
Mach.  Co.  V.  Alpenfels,  30  Colo. 
163,  69  Pac.  574;  Brown  v.  Taber, 
103  Iowa,  1,  72  N.  W.  416;  Back- 
man  V.  City  of  Oskaloosa,  130 
Iowa,  600,  104  N.  W.  347;  Nichols 
V.  New  England  Furniture  Co., 
100  Mich.  230,  59  N.  W.  155; 
Downes  v.  Dimock  etc.  Co.,  78  N. 
Y.  S.  348,  75  App.  Div.  513;  Bond 
v.  Texas  etc.,  Ry.  Co.,  15  Tex.  Civ. 
App.  281,  39  S.  W.  978;  Snooks  v. 
Wingfield,  52  W.  Va.  441,  44  S.  E. 
257;  State  Sav.  Bank  v.  Stewart, 
93  Va.  447,  25  S.  E.  543 ;  Neumeis- 
ter  V.  Goddard,  125  Wis.  82,  103  N, 
W.  241. 


1956  THE   LAW   OF  DEEDS.  [CHAP.    XXIX. 

§  1020a.  Conflict  between  map  and  survey. — Where 
a  deed  describing  the  land  conveyed  refers  to  a  map  and  also 
to  the  survey  upon  which  the  map  is  based,  the  map,  in  the 
absence  of  evidence  to  the  contrar}^  will  be  presumed  cor- 
rectly to  represent  the  survey,  and  it  is  unnecessary  to  look 
to  the  latter.  But  if,  instead  of  agreeing,  there  are  discrep- 
ancies between  them,  the  survey  must  prevail.®  In  an  early 
case  in  New  York,  a  tract  of  land  which  was  granted  by  the 
commissioners  of  the  land-office  to  several  persons,  with  a 
description  by  its  exterior  boundaries  alone,  was  directed  to 
be  surveyed  by  the  surveyor  general,  and  patents  were  direct- 
ed to  be  issued  for  the  several  lots  according  to  the  return 
and  map  of  such  survey.  The  patents  described  the  lots  by 
reference  to  the  map,  but  it  was  held  that  the  patents  were 
to  be  understood  as  referring  to  the  field-book  and  actual  sur- 
vey as  well  as  to  the  map  on  file.  It  was  also  held  that  the 
owners  were  bound  by  their  several  locations  as  they  appeared 
by  the  lines  on  the  ground,  although  it  might  be  that  some 
of  the  lots  would  exceed,  and  others  would  not  equal,  the 
quantity  of  acres  mentioned  in  the  patents.'  Where  a  deed 
refers  to  a  map  as  an  official  map  for  a  further  description, 
and  the  map  purports  on  its  face  to  be  "laid  out"  by  an  in- 
dividual, these  words  are  equivalent  to  "as  surveyed"  by  such 
individual,  and  include  a  reference  to  the  monuments  erected 
by  the  surveyor.  The  deed  is  to  be  construed  as  referring 
to  such  monuments,  and  such  monuments,  in  case  of  a  dis- 
crepancy, will  control  the  courses  and  distances  laid  down  on 
the  map.*  The  fact  that  a  deed  of  a  lot  in  a  town  refers  to 
the  official  map  of  the  town-plat  for  a  description  does  not  pre- 
clude the  introduction  of  parol  evidence  to  show  that  the  sur- 
vey in  the  field,  from  which  the  map  was  made,  conflicts  willi 

^  Whiting  V.  Gardner,  80  Cal.  79;  See,  also,  Jackson  v.  Cole,  16  Johns. 

O'Farrell  v.   Harney,  51   Cal.    125;  256. 

Pcnry  v.  Richards,  52  Cal.  496.  8  Penry  v.  Richards,  52  Cal.  496. 

''^Jackson  v.  Freer,  17  Johns.  30. 


CHAP.    XXIX.]  DESCRIPTION.  1957 

the  map.  If  the  points  and  Hnes  estabHshed  by  the  survey 
can  be  proved,  the  survey  must  prevail  over  the  map  in  ar- 
riving at  the  correct  boundary  of  the  lot.' 

§  1021.  Loss  of  plat. — The  loss  of  a  plat  referred  to 
in  a  deed,  rendering  it  difficult  to  ascertain  the  boundaries 
of  the  land  conveyed,  does  not  avoid  the  deed.^  The  plan 
is  a  part  of  the  deed,  and  is  to  be  so  construed  when  attempted 
to  be  controlled  by  the  general  language  of  the  deed  calling 
for  natural  monuments  and  boundaries.'^  If  in  an  action  of 
ejectment  both  parties  claim  under  deeds  which  refer  to  a 
recorded  town-plat,  for  the  purpose  of  identifying  the  lot, 
the  record,  notwithstanding  that  the  plat  may  not  have  been 
made  in  conformity  with  law,  is  proper  evidence.' 

§  1022.  Parol  evidence  as  to  plat. — Where  a  plat  is 
referred  to  as  annexed  to  a  deed,  although  it  may  have  be- 
come separated  from  the  deed,  yet  it  may,  when  it  is  admitted 
or  shown  that  it  is  the  same  plat  referred  to,  be  received  in 
evidence.*  If  the  land  is  described  as  a  lot  of  land  in  a  town 
"known  and  described  on  the  official  map  of  said  town  as 
block  No.  6,"  parol  evidence  is  admissible  to  identify  the  map, 
and,  when  so  identified,  the  map  forms  a  portion  of  the  deed.^ 
The  words  on  the  face  of  a  map  of  a  town,  "as  laid  out"  by 

9  O'Farrell  v.  Harney,  51  Cal.  125.  by  the  evidence  received  or  offered 

See,   also,    Chenoweth  v.   Haskell's  at   the  trial:    Slauson   v.    Goodrich 

Lessees,  3  Pet.  93,  7  L.  ed.  614.  etc.,  Co.,  supra.     The  fact  that  the 

iNew    Hampshire    Land    Co.    v.  recorder    indorses    on    the    map    a 

Tilton,  19  Fed.  Rep.  73.  later  survey  of  a  part  of  the  land 

2  Schenley  v.  Pittsburgh,  104  Pa.  delineated  on  it  will  not  destroy  its 

St.  472.    See,  also,  Slauson  v.  Good-  identity  with  the  map  referred  to  in 

rich   Transp.    Co.,   99   Wis.   20,   40  the  deed:  McCullough  v.  Olds,  108 

L.R.A.  825,  74  N.  W.  574   (citing  Cal.  529. 

text.)     A  deed  calling  for  a  tract  ^  Burk  v.  Andis,  98  Ind.  59. 

of  land  in  block  7,  according  to  a  4  McCullough    v.    Wall,    4    Rich. 

specific  survey,  cannot  be  extended  68,  53  Am.  Dec.  715. 

to  cover  land  in  some  other  block  *  Penry  v.  Richards,  52  Cat  49^ 


1958  THE  LAW  OF  DEEDS.  [CHAP.    XXIX. 

a  certain  person,  are  equivalent  to  "as  surveyed"  by  him,  and 
embrace  a  reference  to  the  monuments  placed  on  the  land  by 
the  surveyor.  If  such  map  is  referred  to  in  a  deed  as  a  part 
of  the  description,  the  deed  is  to  be  construed  as  referring 
to  such  monuments,  and  they,  rather  than  the  courses  and 
distances  laid  down  on  the  map,  will  govern.^  If  a  lot  in 
a  town  is  conveyed  by  a  description  which  refers  to  the  official 
map  of  the  town  plat,  this  reference  does  not  prevent  the 
reception  of  parol  evidence  for  the  purpose  of  showing  a 
conflict  between  the  survey  in  the  field  from  which  the  map 
was  made  and  the  map  itself,  if  the  object  is  to  determine 
the  correct  boundary  of  the  lot.'^  The  plan  referred  to  in  a 
deed  in  legal  construction  becomes  a  part  of  the  deed.  It  is 
not  subject  to  other  explanations  by  extraneous  evidence  to 
any  greater  extent  than  it  would  be  if  all  the  particulars  of 
the  description  had  been  set  out  at  length  in  the  body  of 
the  deed.®     Where  a  deed  conveying  a  mill  and  dam  with 

6  Penry  v.  Richards,  52  Cal.  496.  the   principle  that  the  monuments, 

See  Pettigrew  v.  Dobbelaar,  63  Cal.  whether  natural   or  artificial,  must 

396.  prevail   over   the   courses   and   dis- 

''O'Farrell  v.  Harney,  51  Cal.  tances.  But  it  is  urged  that  the 
125.  Said  the  court:  "The  question  official  map  does  not  mention  a 
is,  where  are  the  boundaries  of  the  stake  at  the  northwest  corner  of 
lot  conveyed  by  Taylor  to  Moran  ?  block  13,  and  that  the  admission  of 
The  map  was  intended  as  a  repre-  evidence  showing  that  such  a  stake 
sentation  of  the  survey  actually  had  been  set  at  the  first  survey,  is 
made  on  the  ground,  the  position  in  violation  of  the  rule  which  pro- 
of the  blocks  and  lots  as  indicated  hibits  the  admission  of  parol  evi- 
by  the  lines  as  run  and  the  stakes  dence  to  vary,  add  to,  or  contradict 
driven  at  the  corners.  A  map  a  deed.  The  objection  is  not  ten- 
which  by  reference  to  monuments  able.  The  map  was  intended,  as 
established,  or  by  some  other  mode,  has  already  been  said,  as  a  repre- 
refers  to  a  survey,  is  presumed  to  sentation  of  the  actual  survey,  and 
correctly  represent  the  survey  as  the  evidence  only  proves  the  posi- 
actually  made;  but  if  there  is  a  dis-  tion  of  the  lines  as  run — locates  the 
crepancy  between  the  map  and  the  calls  mentioned  in  the  map." 
survey,  the  survey  must  prevail,  if  ^  Proprietors  of  Kennebec  Pur- 
the  position  of  the  points  and  lines  chase  v.  TiflFany,  1  Greenl.  219;  10 
established  by  the  survey  can  be  Am.  Dec  60. 
proved.     It  must  be  so  held  upon 


CHAt'.    XXIX.]  DESCRIPTION.  1959 

water  privilege  refers  to  another  deed  for  a  specification  of 
the  privilege,  the  privilege  conveyed  must  be  measured  by  such 
deed,  and  not  by  the  use  that  the  grantor  is  actually  making 
of  the  water  at  the  time  at  which  the  conveyance  is  executed.^ 
If  a  town  has  by  ordinance  declared  a  certain  map  to  be  the 
official  map,  deeds  made  after  such  declaration,  and  referring 
to  the  official  map,  refer  to  such  map.^ 

§   1023.     Right  to  way. — If  one  of  the  boundaries  of 
the  description  is  a  private  way  not  defined  in  the  deed,  but 
shown  upon  a  plan   which   is   referred  to  in  the  deed,  and 
which  is  recorded  in  the  registry  of  deeds,  the  grantor  is 
estopped  from  denying  the  existence  of  that  right  of  way. 
He  is  also  estopped  from  denying  the  existence  of  any  con- 
necting ways   shown   on   the  plan,   enabling  the  grantor  to 
reach  public  ways  in  any  direction  so  far  as  the  title  of  the 
grantor  may  extend.^     So  if  the  way  is  shown  on  the  plan 
referred  to  in  the  deed,  and  the  plan  is  afterward  recorded 
by  the  grantor  in  the  registry  of  deeds,  he  and  those  claiming 
under  him  are  estopped  from  obstructing  the  way  opposite 
the  land  granted  and  within  its  side  lines,  if  produced  at  right 
angles  to  the  course  of  the  way.^     A  court  called  "Central 
Court"  was  laid  out  over  the  land,  and  the  owner  laid  out 
house  lots  on  the  court,  and  erected  a  house  on  each  of  two 
adjoining  lots.      He  afterward   conveyed  one  of   these,   the 
description  in  the  deed  being  "a  brick  house,  and  the  land 
under  and  adjoining  the  same,  being  No.  4  in  Central  Court," 
and  according  to  the  reporter  was  thus  bounded :  "Beginning 
in  front  of  said  house,  at  the  center  of  the  brick  partition 
wall  between  this  and  the  adjoining  house,  and  running  east- 
erly on  a  line  with  the  center  of  said  wall,  etc.,  about  80  feet 
9  inches,  then  turning  and  running  northerly  to  land  of  Salis- 

9  Perry  v.  Binney,  103  Mass.  156.  2  Pox   v.   Union    Sugar  Refinery, 

1  Penry  v.  Richards,  52  Cal.  496.       109  Mass.  292.     See  §   1025a  post, 

3  Rogers  v.  Parker,  9  Gray,  445. 


1960  THE   LAW   OF  DEEDS.  [CHAP.    XXIX. 

bury,  about  27  feet  6  inches,  then  turning  and  running  west- 
erly, bounded  northerly  on   Salisbui^'s  land,  until  it  comes 
on  a  line  with  the  front  of  said  house,  about  85  feet  5  inches, 
then  turning  and  running  southerly  on  a  line  with  the  front 
of  said  house  about  27  feet  2  inches,  until  it  comes  to  the 
center  of  the  brick  partition  wall  first  mentioned,  together  with 
the  land  in  front  of  said  house,  under  the  stone  steps;  with 
a  right  to  pass  and  repass   on   foot,   and  with  horses  and 
carriages,  to  said  house  and  land  through  said  Central  Court 
at  all  times   said   Homes   to  pay  one-half  ■  the   expense   of 
keeping  the  well  in  good  order,  and  the  expense  of  keeping  the 
sidewalk  in  front  of  said  house  in  good  repair."     At  the 
time  at  which  the  deed  was  made  the  sidewalk  was  paved  with 
brick,  the  shed  of  the  other  house  of  the  grantor  forming 
one  side  of  it,  the  shed,  however,  having  no  door  opening  upon 
it.    There  was  a  strip  of  land  at  the  northerly  side  of  the  lot 
conveyed.      This    strip    was    not   covered   by    the    grantee's 
house,  but  was  used  as  a  passage  from  which  a  gate  opened 
upon  the  sidewalk,  connecting  the  kitchen  and  backyard  with 
Central  Court  over  the  sidewalk,  and  there  was  also  another 
gate  opening  upon  the  sidewalk  from  under  the  front  steps 
of  the  sidewalk.    It  was  impossible  to  gain  access  to  either  of 
the  gates  without  passing  over  some  part  of  the  sidewalk. 
The  court  held  that  whether  the  sidewalk  was  or  was  not  a 
part  of  Central  Court,  the  grantee  was  entitled  to  a  right  of 
way  over  it.    The  way  granted  was  to  be  considered  as  limit- 
ed and  defined  by  the  grantee's  house  on  one  side  and  the 
grantor's  shed  on  the  other,  and  not  merely  as  a  convenient 
way  to  be  some  time  afterward  defined.* 

4  Salisbury  v.  Andrews,  19  Pick.  Parker  v.   Bennett,   11   Allen,  388; 

250.      And    see,    also,    relating    to  Morgan    v.    Moore,    3    Gray,    319; 

rights  of  way.  Stetson  v.  Dow,  16  Lunt    v.    Holland,    14    Mass.    149; 

Gray,  372;  Atkins  v.  Boardman,  2  Murdock  v.  Chapman,  9  Gray,  156; 

Met.  457,  37  Am.  Dec.  100;  Thomas  Davis  v.  Rainsford,  17  Mass.  207. 
V.   Poole,   7   Gray,   83.     See,   also, 


CHAP.    XXIX.] 


DESCRIPTION. 


1961 


§  1024.  Land  bounded  by  non-navigable  stream  or 
highway. — Unless  the  deed  manifests  an  intention  on  the 
part  of  the  grantor  to  Hmit  the  boundary  hne,  the  Hne,  when 
the  land  is  bounded  by  a  non-navigable  stream  or  highway, 
extends  to  the  center  of  such  stream  or  highway,  if  the  grant- 
or is  the  owner  of  the  fee.*     Hence,  where  a  deed  describes 


6  Dean  v.  Lowell,  135  Mass.  55; 
Pike  V.  Munroe,  36  Me.  309,  58  Am. 
Dec.    751;    White    v.    Godfrey,    97 
Mass.   472;    Kittle   v.    Pfeiffer,   22 
Cal.    484;    Demeyer    v.    Legg,     18 
Barb.  14;  Webber  v.  Cal.  &  O.  R. 
R.  Co.,  51  Cal.  425 ;  Nichols  v.  Sun- 
cook  Mfg.  Co.,  34  N.  H.  345;  Ber- 
ridge  v.  Ward,  10  Com.  B.,  N.  S., 
400;  Mott  V.  Mott,  68  N.  Y.  246; 
Helmer  v.  Castle,  109  111.  664;  Cox 
V.  Louisville  etc.,  R.  R.  Co.,  48  Ind. 
178;   Transue  v.   Sell,   105   Pa.   St. 
604,  and  cases  cited;  Champlin  etc. 
R.  R.   V.  Valentine,   19  Barb.  484; 
Hoflf  V.  Tobey,  66  Barb.  347 ;  Salter 
V.  Jonas,  39  N.  J.  L.  469,  23  Am. 
Rep.  229;  Norris  v.  Hill,  1  Mann. 
(Mich.)    202;   Winter  v.   Peterson, 
4  Zab.  524,  61  Am.  Dec.  678;  Banks 
V.  Ogden,  2  Wall.  57,  17  L.  ed.  818; 
Moody    V.     Palmer,    50    Cal.    31; 
Kingsland    v.    Chittenden,    6   Lans. 
15 ;  Watson  v.  Peters,  26  Mich.  508 ; 
Maynard    v.    Weeks,    41    Vt.    617; 
Paul  V.  Carver,  26  Pa.  St.  223,  67 
Am.  Dec.  413;  Newhall  v.  Ireson, 
8  Cush.  597,  54  Am.  Dec.  790 ;  John- 
son V.  Anderson,  18  Me.  76;  Du- 
buque V.  Maloney,  9  Iowa,  451,  74 
Am.  Dec.  358;  Stark  v.  Coffin,  105 
Mass.  328;  Gove  v.  White,  20  Wis 
432 ;  Gear  v.  Barnum,  37  Conn.  229 
Hawesville  v.  Lander,  8  Bush,  679 
Sutherland  v.  Jackson,  32  Me.  80 
Motley  v.   Sargent,  119  Mass.  231. 
And  see,  also,  bearing  on  the  same 


proposition,  Child  v.  Starr,  4  Hill. 
369,  373;  Hollenbeck  v.  Rowley,  8 
Allen,    473;    Codman    v.    Evans,    1 
Allen,  443;    Chatham   v.    Brainerd, 
11  Conn.  60;  Lord  v.  Commrs.  of 
Sidney,    12    Moore    P.    C.    C.    497; 
Jackson    v.    Hathaway,    15    Johns. 
454,  8  Am.  Dec.  263 ;  Read  v.  Leeds, 
19   Conn.    182,    187;   Richardson  v. 
Vermont  etc.  R.  R.,  25  Vt.  472,  60 
Am.  Dec.  283;   Tousley  v.   Galena 
etc.,  Mining  Co.,  24  Kan.  328;  Mil- 
hau  V.   Sharp,  27   N.   Y.  611,  624, 
84  Am.  Dec.  314;  Regina  v.  Board 
of   Works,  4  Best  &   Smith,  526; 
Bissell   V.    N.    Y.    Cent.    R.   R.,   26 
Barb.  630;  Morrison  v.  Willard,  30 
Vt.  118;  Kimball  v.  City  of  Keno- 
sha, 4  Wis.  331;  Cox  v.  Freedley, 
33  Pa.   St.   124,  75  Am.  Dec.  584; 
Paul  V.  Carver,  24  Pa.  St.  207,  64 
Am.  Dec.  649;  Harris  v.  Elliot,  10 
Peters,    53;    Steel    v.    Prickett,    2 
Stark.    463;     Fisher    v.     Smith,   9 
Gray,  441;  Canal  Trustees  v.  Hav- 
ens, 11  111.  557;  O'Linda  v.  Lothrop, 
21  Pick.  292;  Witter  v.  Harvey,  1 
McCord,  67,  10  Am.  Dec.  650 ;  Par- 
ker   V.    Framingham,    8    Met.    260, 
267;   Grose  v.  West,  7  Taunt.  39; 
Trustees   v.   Lander,  8   Bush,   679; 
Falls  v.  Reis,  74  Pa.  St.  439;  Smith 
V.    Howdon,    14    Com.    B.,    N.    S., 
398;    Lewis    v.    Beattie,    105    Mass. 
410;  Fisher  v.  Smith,  9  Gray,  444; 
Winslow    V.    King,    14    Gray,    323; 
Boston    V.    Richardson,    13    Allen, 


1962  THE   LAW   OF  DEEDS.  [CIIAP.    XXIX. 

the  land  conveyed  as  extending  five  hundred  feet  to  a  street 
or  avenue,  and  thence  at  right  angles  along  the  street  one 
hundred  and  twenty  feet  to  the  place  of  beginning,  the  fee 
of  the  land  to  the  center  of  the  street  is  conveyed  subject  to 
the  public  easement,  notwithstanding  the  line  of  five  hundred 
feet  extends  only  to  the  side  of  the  street  and  not  to  its 
center.  When  the  avenue  is  no  longer  used  as  a  street,  the 
land  is  freed  from  the  easement.^  But  if  the  land  is  described 
by  metes  and  bounds,  without  any  reference  to  a  street,  the 
grantee  acquires  no  title  to  the  fee  of  an  adjacent  street  which 
the  grantor  subsequently  dedicated  to  the  public.''  If,  however, 
lots  are  sold  after  the  projection  of,  but  before  the  opening 
of  a  public  street,  and  the  deeds  describe  the  lots  as  running 
to  and  being  bounded  by  the  line  of  the  street,  the  fee  to 
the  center  of  the  street  passes,  and  the  grantees  are  entitled 
to  damages  upon  the  opening  of  the  street.®  And  where 
land  is  laid  out  into  blocks  and  lots,  which  are  bounded  by 
what  are  represented  on  an  unrecorded  or  defective  plat  as 
streets,  a  deed  referring  to  the  plat  for  a  true  description  of 
the  premises  passes  to  the  grantee,  as  against  the  grantor 
and  his  assigns,  the  fee  to  the  center  of  the  street  upon  which 
the  lot  conveyed  abuts.^     Where  the  land  conveyed  lies  east 

154;  Sleeper  v.  Laconia,  60  N.  11.  See  Webber  v.   California  etc.,  R. 

202,   49   Am.    Rep.   311,   and   cases  R.   Co.,  51   Cal.  425. 

cited;    Claremont   v.    Carlton,  2  N.  'Knott  v.  Jefferson  Street  Ferry 

H.  369,  9  Am.  Dec.  88;  Clayton  v.  Co.,  9  Or,   530. 

Gilmer    County    Court,   58   W.    Va.  *  Easton    Burrough's    Appeal,   81 

253,  2  L.R.A.(N.S.)   598,  52  S.  E.  *Pa.  St.  85. 

103,    citing    text.      The    batture    or  ^  Jarstadt  v.  Morgan,  48  Wis.  245. 

alluvion  rights  to  the  river  frontage  For  other  cases  upon  the  constnic- 

will  pass  by  a  deed  describing  the  tion  of  deeds  in  which  one  of  the 

lana  as  irontKig  on  &  certain  strc«?  boundaries   is  a  stream,  see   Nick- 

and     extending     between     specified  crson    r     Crawford,    16    Me.    245; 

lines  to  the  river,  without  any  pro-  Bishop    T.    Seclsy,    18    Conn.    393; 

vision    to    that    effect :    Meyers    v.  Agawam  Canal  Co.  v.  Edwa«-ds.  36 

Mathis,  42  La.  Ann.  471,  21  Am.  St.  Conn.    476;    Hatch    v.    Dwight,    17 

385.  Mass.  289,  9  Am.  Dec.   145;   Dod- 

•  Moody   V.    Palmer,   50   Cal.   31.  dridge  v.  Thompson,  9  WhcaL  47£X 


CHAP.    XXIX.] 


DESCRIPTION. 


1963 


of  a  certain  street,  and  the  deed  explicitly  describes  the  land 
as  bounded  bv  the  east  line  of  the  street,  the  title  to  the  soil 


6  L.  ed.  137;  Granger  v.  Avery, 
64  Me.  292 ;  Coovert  v.  O'Conner,  8 
Watts,  470;  Herring  v.  Fisher,  1 
Sand.  344;  Hammond  v.  McLach- 
lan,  1  Sand.  323;  Stone  v.  Augusta, 
46  Me.  127;  Watson  v.  Peters,  26 
Mich.  508;  Gavit  v.  Chambers,  3 
Ohio  495  ;  Beahan  v.  Stapleton,  13 
Gray,  427;  Coldspring  Iron  Works 
V.  Tolland,  9  Gush.  495;  Knight  v. 
Wilder,  2  Gush.  199,  48  Am.  Dec. 
660 ;  Robinson  v.  White,  42  Me.  209. 
Between  grantor  and  grantee,  a 
deed  of  a  lot  of  land  bounded  on  a 
street  in  a  city  carries  the  land  to 
the  center  of  the  street.  The  deed 
will  have  this  effect  although  it 
does  not  refer  to  the  street,  but 
the  lot  is  described  by  a  number  as 
represented  upon  a  map,  showing  it 
as  abutting  on  the  street,  and  the 
bounds  as  given  do  not  include  any 
portion  of  the  street :  Hennessy  v. 
Murdock,  137  N.  Y.  317,  33  N.  E. 
Rep.  330.  Mr.  Justice  Maynard 
says  there  is  no  distinction  in  this 
respect  between  the  streets  of  a 
city  and  county  highways,  and  con- 
tinues:  "This  construction  has  so 
long  prevailed  that  it  has  become  a 
rule  of  property,  and  it  is  founded 
upon  the  presumed  intent  of  the 
parties  to  the  conveyance.  It  is  not 
reasonable  to  infer  that  the  grantor 
intended  to  reserve  the  title  to  the 
fee  of  the  narrow  strip  lying  be- 
tween the  physical  boundaries  of 
the  lot  conveyed  and  the  center  of 
the  strfeet,  or  that  the  grantee  im- 
derstood  that  any  such  reservation 
had  been  made.  The  use  of  the 
fee  of  the  bed  of  the  street  b  so 


inseparably  connected  with  the  or- 
dinary use  of  the  adjacent  lot,  that 
a  severance  of  the  two  will  not  be 
deemed  to  have  been  effected,  un- 
less the  presumption  that  the  grant- 
or intended  to  pass  title  to  the 
center  of  the  street  is  rebutted  by 
other  parts  of  the  deed,  and  by  the 
condition  and  relation  of  the  par- 
ties to  the  lands  conveyed  and  other 
lands  in  the  vicinity":  Hennessy 
v.  Murdock,  137  N.  Y.  317,  33  N.  E. 
Rep.  330.  See,  also,  to  the  same  ef- 
fect, Dunham  v.  Williams,  37  N  Y. 
251;  Mott  V.  Mott,  68  N.  Y.  246; 
Bissell  V.  N.  Y.  G.  R.  R.  Go.,  23 
N.  Y.  61 ;  Perrin  v.  Laine,  36  N.  Y. 
120;  In  re  Ladue,  118  N.  Y.  220, 
23  N.  E.  Rep.  465;  Haberman  v. 
Baker,  128  N.  Y.  259,  13  L.R.A. 
611;  Gity  of  Buffalo  v.  Pratt,  131 
N.  Y.  298,  15  L.R.A.  413,  27  Am 
St.  Rep.  592;  Jackson  v.  Hathaway 
15  Johns.  447,  8  Am.  Dec.  263 
Greer  v.  N.  Y.  G.  &  H.  R.  R.  Go. 
37  Hun,  346 ;  Wallace  v.  Fee,  50  N 
Y.  694;  Pollock  v.  Morris,  19  J.  & 
S.  112;  Hammond  v.  McLachlan 
1  Sand.  323;  Gochran  v.  Smith,  73 
Hun,  597;  Holloway  v.  Southmayd, 
139  N.  Y.  390,  34  N.  E.  Rep.  1047; 
Wager  v.  Troy  etc.  R.  Go.,  25  N.  Y. 
526;  Story  v.  N.  Y.  Elevated  R. 
Go.,  90  N.  Y.  122,  43  Am.  Rep.  146 ; 
Mott  V.  Mott,  68  N.  Y.  246 ;  Lozier 
V.  N.  Y.  Gent.  R.  Go.,  42  Barb.  465 
Sherman  v.  McKeon,  38  N.  Y.  266 
White's  Bank  v.  Nichols,  64  N.  Y 
65;  Jackson  v.  Louw,  12  Johns 
252;  Watkins  v.  Lynch,  71  Gal.  21 
Fraser  v.  Ott,  95  Gal.  661,  30  Pac. 
793;  Moody  v.  Palmer,  50  Gal.  31 


1964 


THE  LAW  OF  DEEDS. 


[chap.    XXIX. 


in  the  street  does  not  pass.^    But  where  a  purchaser  agrees  to 
buy  land  at  a  certain  price  per  acre  after  the  making  of  a 


Webber  v.  Cal.  &  O.  R.  R.  Co.,  51 
Cal.  425;  Oxton  v.  Graves,  68  Me. 
371,  28  Am.  Rep.  75;  Sutherland  v. 
Jackson,  32   Me.  80;   Low  v.  Tib- 
betts,  72  Me.  92,  39  Am.  Rep.  303 ; 
Cottle  V.  Young,  59  Me,  105 ;  Buck- 
nam  v.  Bucknam,  12  Me.  463 ;  John- 
son V.  Anderson,  18  Me.  76;  Canal 
Trustees  v.  Haven,  11  111.  554;  Hel- 
mer  v.   Castle,    109  111.   664;    Hen- 
derson V.  Hatterman,   146  111.  555, 
34  N.  E.  1041;  Banks  v.  Ogden,  2 
Wall.  57,   17  L.  ed.  818;  Jackson- 
ville etc.,  Ry.  Co.  v.  Lockwood,  33 
Fla.  573,  15  So.  327;  Gove  v.  White, 
20  Wis.  425;  Milwaukee  v.  Milwau- 
kee &  Beloit  R.  R.  Co.,  7  Wis.  85 ; 
Kimball   v.    Kenosha,   4  Wis.   321; 
Jarstadt   v.    Morgan,   48  Wis.   245, 
4  N.  W.  27;  Andrews  v.  Youmans, 
78  Wis.  56,  47  N.  W.  304;  Wood- 
man   v.    Spencer,    54    N.    H.    507; 
Reed's  Petition,  13  N.  H.  381 ;  Mc- 
Shane  v.  Main,  62  N.  H.  4 ;  Marsh 
v.  Burt,  34  Vt.  289;  Ott  v.  Kreiter, 
110   Pa.   St.   370;   Paul   v.   Carver, 
26  Pa.   St.  223,  67  Am.  Dec.  413; 
Healey   v.    Babbitt,    14   R.    I.    533; 
Maynard    v.    Weeks,    41    Vt.    617; 
Church    v.    Stiles,    59    Vt.    462,    10 
Atl.   Rep.  674;   Purkiss  v.  Benson, 
28  Mich.  538;  Cox  v.  Freedley,  33 
Pa.    St.    124,    75    Am.    Dec.    584; 
Trutt   v.    Spotts,   87   Pa.    St.    339; 
Transue  v.   Sell,    105   Pa.    St.  604; 
Firmstone  v.   Spaeter,    150  Pa.    St. 
616,  30  Am.   St.  Rep.  851,  25  Atl. 
41 ;  Spackman  v.  Steidel,  88  Pa.  St. 
453;  Dobson  v.  Hohenadel,  148  Pa. 
St.    367,    23    Atl.    1128;    Taylor    v. 
Armstrong,  24  Ark.  102 ;  Montgom- 
ery V.  Hines,  134  Ind.  221,  33  N.  K 


1100;  Cox  V.  Louisville  N.  A.  &  C. 
R.  R.  Co.,  48  Ind.  178;  Hamilton 
Co.  V.  Indianapolis  Natural  Gas 
Co.,  134  Ind.  209;  Warbritton  v. 
Demorett,  129  Ind.  346,  27  N.  E. 
730;  Terre  Haute  etc.  R.  Co.  v. 
Scott,  74  Ind.  29;  Haslett  v.  New 
Albany  etc.  R.  Co.,  7  Ind.  App. 
603,  34  N.  E.  Rep.  845 ;  Herbert  v. 
Rainey,  54  Fed.  248;  Peabody 
Heights  Co.  v.  Sadtler,  63  Md. 
533,  52  Am.  Rep.  519;  Terre  Haute 
etc.  R.  Co.  V.  Rodel,  89  Ind.  128,  46 
Am.  Rep.  164;  Baltimore  etc.  R.  R. 
Co.  V.  Gould,  67  Md.  60 ;  Columbus 
&  W.  Ry.  Co.  V.  Witherow,  82  Ala. 
190,  3  So.  23;  Moore  v.  Johnston, 
87  Ala.  220,  6  So.  50;  Chatham  v. 
Brainerd,  11  Conn.  60;  Champlin  v. 
Pendkton,  13  Conn.  23;  Peck  v. 
Smith,  1  Conn.  103,  6  Am.  Dec. 
216;  Watrous  v.  Southworth,  5 
Conn.  305;  Gear  v.  Barnum,  37 
Conn.  229;  Silvey  v.  McCool,  86 
Ga.  1,  12  S.  E.  175 ;  Tousley  v.  Ga- 
lena M.  &  S.  Co.,  24  Kan.  328; 
Hunt  v.  Brown,  75  Md.  481 ;  Albert 
V,  Thomas,  73  Md.  181;  Ellsworth 
v.  Lord,  40  Minn.  337,  42  N.  W. 
389;  Rich  v.  City  of  Indianapolis,  37 
Minn.  423,  5  Am.  St.  Rep.  861,  35 
N.  W.  2;  In  re  Robbins,  34  Minn. 
99,  57  Am.  Rep.  40;  Jacobs  v. 
Woolfolk,  90  Ky.  426,  9  L.R.A. 
551,  14  S.  W.  415;  Hawesville  v. 
Lander,  8  Bush,  679;  Salter  v. 
Jonas,  39  N.  J.  L.  469.  23  Am. 
Rep.  229;  Ayres  v.  Penn.  Ry.  Co., 
52  N.  J.  L.  405;  Dodge  v.  Penn. 
Ry.,  43  N.  J.  Eq.  351. 

1  Grand  Rapids  &  Ind.  R.  R.  Co.  v. 
Heisel,  38  Mich.  62,  31  Am.  Rep.  306. 


CHAP.    XXIX.]  DESCRIPTION.  1965 

survey,  and  a  street  or  highway  is  mentioned  as  one  of  the 
boundaries,  he  is  compeHed  to  pay  for  the  land  to  the  middle 
of  the  street,  where  no  contrary  intention  appears.^  Where 
the  grantor  has  the  legal  title  to  the  bed  of  a  non-navigable 
river,  a  description,  south  to  the  river,  and  "thence  up  said 
river  to  where  it  is  intersected  by  the  south  line  of  the  town" 
will  extend  the  line  to  the  center  of  the  river.^  So,  where 
the  land  is  described  as  running  to  a  stake  on  a  river  bank 
thence  up  the  river  to  a  sycamore  on  its  bank,  the  title  will 
pass  to  the  center  of  the  stream  and  the  deed  will  convey 
all  accretions  to  the  land.*  If  a  stream  is  navigable  in  the 
ordinary  sense  but  not  in  the  legal,  the  title  will  extend  to 
the  center  of  the  stream  where  it  is  given  as  a  boundary 
unless  the  deed  clearly  expresses  an  intention  to  exclude  the 
land  between  the  bank  and  the  thread  of  the  stream.^  A 
person  holding  title  under  a  patent  from  the  United  States 
has  all  the  rights  of  a  riparian  owner  in  the  channel  of  the 
river  lying  opposite  to  the  banks  of  his  land  and  such  rights 
are  not  modified  by  the  fact  that  two  channels  of  the  river 
may  surround  the  patented  land.^    The  rule  that  a  deed  bound- 

2Firmstone   v.    Spaeter,    150    Pa.  ^Runion  v.  Alley,  39  S.  W.  849, 

St.  616,  30  Am.   St.  Rep.  851.     If  19    Ky.   Law   Rep.   268. 

the   grantor   owns    the    fee   of   the  ^  \ygi,5(.gj.   y     Harris,    111    Tenn. 

soil  of  the  highway,  the  presump-  668,  59  L.R.A.  324,  69  S.  W.  782. 

tion    is   that    his    deed    carries    the  ^  Whitaker  v.  McBride,  197  U.  S. 

fee:  Haberman  v.  Baker,  128  N.  Y.  510,  49  L.   ed.  857,  25    S.   Gt.   530, 

253,    13   L.R.A.   611.     That   it   will  affirming  McBride  v.  Whitaker,  65 

be  presumed  that  a  deed  conveying  Neb.  137,  90  N.  W.  966.     See,  also, 

land  bounded  by  a  street  will  carry  as  to  the  title  passing  to  the  cen- 

the  fee  to  the  center,  see  Silvey  v.  ter     of     an     unnavigable     stream: 

McCool,  86  Ga.  1 ;  Florida  etc.  Ry.  Berry   v.    Hoogendoorn,    133   Iowa, 

Go.  V.  Brown,  23  Fla.  104;  Matter  437,    108    N.    W.    923;    Wilcox    v. 

of  Laduc,  118  N.  Y.  213;  Low  v.  Bread,    157    N.   Y.   713,    53    N.    E. 

Tibbetts,  12  Me.  92,  39  Am.  Rep.  1133,  affirming  47  N.  Y.  S.  867,  92 

303;   Warbritton   v.   Demorett,   129  Hun,  9;  Garter  v.  Ghesapeake  &  C. 

Tnd.  346;  Salter  v.  Jonas,  39  N.  J.  R.  Go.,  26  W.  Va.  644,  53  Am.  Rep. 

L.  469,  23  Am.  Rep.  229.  116;    Walls    v.    Gunningham,    123 

SHanlon    v.     Hobson,    24    Golo.  Wis.  346,  101  N.  W.  696;  Roberts  v. 

284,  42  L.R.A.  502,  51  Pac.  433.  Decker,  120  Wis.  102,  97  N.  W.  519. 


1966 


THE  LAW  OF  DEEDS. 


[chap.    XXIX. 


ing  the  land  conveyed  will  carry  title  to  the  center  of  a 
non-navigable  stream,  can  have  no  application  where  the  bound- 
ary in  the  deed  is  expressly  fixed  as  the  low  water  of  the 
stream.''  The  presumption  is  where  the  land  is  described  as 
being  bounded  by  a  highway,  that  the  deed  will  pass  the  title 
to  the  land  to  the  middle  of  the  highway  subject  only  to  the 
easement  of  the  public'  Although  the  lots  may  be  described 
by  numbers,  still,  until  the  contrary  is  shown,  the  presump- 
tion is  that  the  owner  of  land  bounded  by  a  road  or  street 
owns  to  the  center.^ 

§  1025.  Where  contrary  intention  appears. — The  rule 
given  in  the  preceding  section  is  one  of  construction  only, 
and,  of  course,  does  not  govern  when  it  appears  upon  the 
face  of  the  deed  that  the  intention  was  that  the  grantee 
should  take  to  the  line  of  the  street  or  stream,  and  not  to 


■J^  Webster  v.  Harris,  11  Tenn. 
668,  59  L.R.A.  324,  69  S.  W.  782. 

8  Mangam  v.  Village  of  Sing 
Sing,  164  N.  Y.  560,  58  N.  E.  1089, 
affirming  50  N.  Y.  S.  647,  26  App. 
Div.  464.  That  the  deed  conveying 
land  bounded  on  a  highway  con- 
veys to  the  center  unless  a  contrary 
intent  appears.  See  Western  Union 
Telegraph  Co.  v.  Krueger,  36  Ind. 
App.  348,  74  N.  E.  25;  McKay  v. 
Doty,  63  Mich.  581,  30  N.  W.  591; 
Haberman  v.  Baker,  128  N.  Y.  253, 
13  L.R.A.  611,  28  N.  E.  370;  Matt- 
lage  V.  New  York  El.  R.  Co.,  157 
N.  Y.  708,  52  N.  E.  1124,  affirming 
35  N.  Y.  S.  704,  14  Misc.  291 ;  Van 
Winkle  v.  Van  Winkle,  80  N.  Y.  S. 
612,  39  Misc.  593;  Mitchell  v. 
Einstein,  94  N.  Y.  S.  210,  105  App. 
Div.  413;  Sweatman  v.  Bathrick, 
17  S.  D.  138,  95  N.  W.  422 ;  Elliott 
V.  Jenkins,  69  Vt.  134,  37  Atl.  272. 

•  Shaw    V.    Johnston,    17    Idaho, 


676,  107  Pac.  399.  See  as  to  pre- 
sumptions :  Seery  v.  City  of  Wa- 
terbury,  82  Conn.  567,  25  L.R.A. 
(N.S.)  681,  74  Atl.  908;  Frost  v. 
Jacobs,  204  Mass.  1,  90  N.  E.  357 ; 
Wliite  v.  Jefferson,  125  N.  W.  262. 
Thacker  v.  Wilson,  122  S.  W.  938. 
Where  a  contrary  intention  does 
not  appear,  the  deed  passes  the  title 
to  the  center  of  a  non-navigable 
stream :  Walls  v.  Cunningham,  123 
Wis.  346,  101  N.  W.  696;  Lampman 
V.  Van  Alstyne,  94  Wis.  417,  69 
N.  W.  171 ;  Sullivan  v.  Spotswood, 
82  Ala.  163,  2  So.  716;  Lux  v.  Hag- 
gin,  69  Cal.  255,  10  Pac.  674;  Han- 
Ion  V.  Hobson,  24  Colo.  284,  42 
L.R.A.  502,  51  Pac.  433;  Denver  v. 
Pearce,  13  Colo.  383,  6  L.R.A.  541, 
22  Pac.  774 ;  Piper  v.  Connelly,  108 
III.  646;  Goff  v.  Congle,  118  Mich. 
307,  42  L.R.A.  161,  76  N.  W.  489; 
Hodges  v.  Williams,  95  N.  C.  331, 
59  Am.  Rep.  242. 


CHAP.    XXIX.]  DESCRIPTION.  1967 

its  center.  Thus,  where  one  hne  of  the  description  is  "thence 
along  the  easterly  line"  of  a  certain  street,  a  certain  distance, 
and  no  other  language  is  employed  to  modify  the  boundary, 
the  grantee's  title  does  not  extend  to  the  center  of  the  street.^ 
And  where  land  adjacent  to  a  road  is  conveyed  by  a  descrip- 
tion beginning  "at  the  corner  formed  by  the  intersection  of 
the  easterly  line"  of  the  road  with  the  northerly  line  of  an- 
other road,  and  ending  "thence  along  the  easterly  line"  of  the 
road  to  which  the  land  was  adjacent,  the  land  conveyed  is 
not  bounded  by  the  center  of  the  road,  but  by  its  side.^  But 
the  mere  fact  that  a  monument  on  the  side  of  the  road  or  on 
the  bank  of  a  stream  is  mentioned  as  the  place  of  the  begin- 
ning or  end  of  a  line,  is  not  of  itself  sufficient  to  rebut  the 
presumption  that  the  grantee  takes  to  the  center  of  the  road 
or  to  the  thread  of  the  stream.^  The  intention  may  be  gath- 
ered from  the  language  of  the  description,  as  noticed  in  the 
preceding  section,  where  the  land  conveyed  is  bounded  by  the 
line  of  the  street  instead  of  the  street  itself.* 

§  1025a.  Private  way  or  alley. — In  some  cases  it  is 
held  that  where  the  land  conveyed  is  bounded  by  an  alley  or 
a  private  right  of  way,  the  title  of  the  grantee  is  not  to  the 

1  Severy  v.  Central  Pacific  R.  R,  Slocomb,  9  Gray,  36,  69  Am.  Dec. 
Co.,  51  Cal.  194.  274;  Brainerd  v.  Boston  etc.  R.  R., 

2  Mead  v.  Riley,  50  N.  Y.  Sup.  12  Gray,  407,  410 ;  Hanson  v.  Camp- 
Ct.  20.  And  see  Louth  v.  INIachlin,  bell,  20  Md.  223;  Perrin  v.  New 
40  Ohio  St.  332;  Tag  v.  Keteltas,  York  Cent.  R.  R.,  40  Barb.  65. 
48  N.  Y.  Sup.  Ct.  241 ;  Kings  Coun-  ^  Low  v.  Tibbetts,  72  Me.  92,  39 
ty  Fire  Ins.  Co.  v.  Stevens,  87  N.  Am.  Rep.  303.  And  see  Bradford 
Y.  287,  41  Am.  Rep.  361;  Cottle  v.  Cressey,  45  Me.  9;  Pollock  v. 
V.  Young,  59  Me.  105;  O'Connell  Morris,  51  N.  Y.  Sup.  Ct.  (10  Jones 
V.   Bryant,    121    Mass.   557;   Lee   v.  &  S.)    112. 

Lee,  27   Hun,   1;    Peck  v.   Dennis-  *  Grand  Rapids  &  Ind.  R.  R.  Co. 

ton,  121  Mass.  17;  Murphy  v.  Cope-  v.  Heisel,  38  Mich.  62,  31  Am.  Rep. 

land,  ?I  Iowa,  515;  Babcock  v.  Ut-  306.      The    conduct    of    the    parties 

ter,  1  Abb.  N.  Y.  App.  27;  DePeys-  may  be   considered:     Frost   v.   Ja-. 

ter'v.  Mali,  27  Hun,  439;  Keening  cobs,  204  Mass.  1,  90  N.  E.  357. 
V.  Ayling,  126  Mass.  404;  Smith  v. 


1968  THE  LAW   OF  DEEDS.  [CHAP.    XXIX. 

center  of  it.  If  the  alley  or  way  is  not  a  public  highway,  the 
view  sustained  by  some  authorities  is  that  the  boundary  ex- 
tends only  to  the  side  of  it.^  But  the  rule  generally  adopted, 
is  that  if  the  title  of  the  grantor  extends  to  the  center  of  a 
private  alley  or  way,  and  he  does  not  manifest  an  intent  to 
restrict  or  control  the  boundary,  his  deed  describing  the  land 
conveyed  as  bounded  on  such  private  alley  or  way,  will  convey 
the  fee  to  the  center.^  The  rule  has  thus  been  expressed: 
"In  the  construction  of  deeds,  where  lands  are  bounded  on 
by  a  way,  either  public  or  private,  the  law  presumes  it  to  be 
the  intention  of  the  grantor  to  convey  the  fee  of  the  land  to 
the  center  of  the  way,  if  his  title  extends  so  far.  This  pre- 
sumption is,  of  course,  controlled  whenever  there  are  words 
used  in  the  description  showing  a  different  intention.  But  it 
has  been  held  that  giving  measurement,  in  the  deed,  of  side 
lines  which  reach  only  to  the  center  of  the  way,  are  not  alone 
sufficient  to  overcome  it."  ^*  And,  again :  "The  general  rule  is 
well  settled  that  a  boundai-y  or  a  way,  public  or  private,  in- 
cludes the  soil  to  the  center  of  the  way,  if  owned  by  the 
grantor,  and  that  the  way,  thus  referred  to  and  understood, 
is  a  monument  which  controls  courses  and  distances,  unless 
the  deed  by  explicit  statement  or  necessary  implication  requires 
a  different  construction."  '  In  Massachusetts,  a  petition  was 
filed  for  the  registration  of  title  to  land  under  the  Torrens 
system,  and  for  the  registration  of  an  easement.  It  appeared 
that  a  passageway  and  lot  formerly  belonged  to  one,  Gould, 

5  Bangor  House  V.  Brown,  33  Me.  2   Atl.   650;    Winslow   v.    King,    14 

309;    Ames  v.   Hilton,   70   Me.   36;  Gray,   321;    Hennessy  v.    Murdock, 

Winslow   V.   Reed,   89   Me.   67,   35  137  N.  Y.  317,  33  N.  E.  330;  Gould 

Atl.   1017;  Andreas  v.   Steigerwall,  v.   Wagner,    196    Mass.   270,   82   N. 

29  Pa.  Super.  Ct.  1.  E.    10;    McKenzie   v.    Gleason,    184 

8  Wiess  V.  Goodhue,  46  Tex.  Civ.  Mass.  452,  69  N.  E.  1076,  100  Am. 

App.  142,  102  S.  W.  793;  Fisher  v.  St.  Rep.  566. 

Smith,  9  Gray,  441;  Stark  v.  Cof-  e^  Qark  v.  Parker,  106  Mass.  554. 

fin,  119  Mass.  231 ;  Gould  V.  Eastern  "^  Peck    v.    Denniston,    121    Mass. 

R.  Co.,  142  Mass.  85,  7  N.  E.  543 ;  17. 
Freeman  v.  Sayre,  48  N.  J.  L.  237, 


CHAP.    XXIX.]  DESCRIPTION.  1969 

and  constituted  one  lot  known  as  lot  number  17,  on  a  plan  of 
land  belonging  to  one  Granger,  and  that  the  passageway  was 
laid  out  by  Gould,  along  the  easterly  line  of  lot  17,  and  that 
he  did  not  then  own  and  had  not  owned  since  that  time  any 
land  easterly  of  it.  Gould  executed  two  mortgages,  the  first 
describing  the  lot  mortgaged  as  "northeasterly  on  Newton- 
ville  avenue,  85  feet;  southeasterly,  on  a  pasageway,  5  feet 
wide,  running  through  the  grantor's  land  to  Bennington  street 
117^  feet;  southwesterly  on  other  land  of  the  grantor  85 
feet,  and  northwesterly  by  lot  16  on  said  plan  117^  feet. 
In  the  second  mortgage  the  lot  was  described  as  southeasterly 
on  a  passageway  5  feet  wide,  running  through  grantor's  land 
to  Bennington  street  82 ^^  feet;  southwesterly  on  Bennington 
street  85  feet;  northwesterly  on  lot  16,  on  said  plan  82^  feet, 
and  northeasterly  on  other  land  of  the  grantor  85  feet.  The 
two  lots  were  each  90  feet  on  the  street.  Title  to  the  passage- 
way was  claimed  by  the  wife  of  Gould,  under  a  deed  from  her 
husband  to  her  through  a  conduit  of  the  passageway  after 
the  execution  of  the  mortgages.  The  respondents  claimed 
title  to  the  passageway  under  the  mortgages.  The  court  de- 
cided that  notwithstanding  that  the  passageway  was  private, 
title  passed  to  the  center,  and  that  this  rule  would  not  cease 
to  operate  because  the  distances  stated  in  the  description,  did 
not  extend  to  the  center  of  the  way,  and  held  that  the  peti- 
tioned had  title  to  the  easterly  half  of  the  passageway,  with  a 
right  of  way  over  the  westerly  half,  and  that  the  respondents 
had  a  like  right  of  way  over  the  eastern  half.' 

8  Gould  V.  Wagner,  196  Mass.  270,  the  title  to  the  center  of  the  way  if 

82   N.    E.    10.     It   was  the  opinion  the  grantor  owns  so  far.     (Boston 

of  Justice  Lonny  and  Sheldon  that  v.  Richardson,  13  Allen,  146,  152). 

the    mortgages    carried    the    fee    in  The     reasons     for     this     rule     are 

the  whole  of   the  passageway,  and  stronger   in    the    case    of    a    public 

not  in  the  westerly  half  only.     Mr.  way  than  in  that  of  a  private  wajs 

Justice   Morton  who  delivered  the  but  the  rule  applies  to  both  public 

opinion  of  the  majority  of  the  court  and  private  ways.     (Motley  v.  Sar- 

said:     "The  general  rule  is  that  a  gent,     119    Mass.    231;     Fisher    v. 

deed  bounding   on   a   way    conveys  Smith,  9  Gray,  441).    The  fact  that 
Deeds,  Vol.  II.— 124 


1970 


THE   LAW   OF   DEEDS, 


[chap.    XXIX. 


§  1025b.  Intention  of  owner. — If  the  grantor  gives  to 
the  grantee  as  an  appurtenance  to  the  land  conveyed,  the  right 
to  open  and  use  a  private  road  lying  along  one  side  of  it,  the 
presumption  is  that  it  was  not  the  intention  of  the  grantor  to 


the  distances  of  the  side  lines  do 
not  extend  to  the  center  of  the  way 
is  not  enough  to  exclude  the  opera- 
tion of  the  rule.  (Clark  v.  Parker, 
106  Mass.  554;  McKenzie  v.  Glea- 
son,  184  Mass.  452,  69  N.  E.  1076, 
100  Am.  St.  Rep.  566).  The  ques- 
tion is  one  of  intention.  If  compe- 
tent, the  evidence  which  was  omit- 
ted against  the  objection  of  the 
respondents  would  tend  to  show 
that  it  would  be  contrary  to  the 
intention  of  the  grantor  to  con- 
strue the  mortgage  deeds  as  con- 
veying title  to  the  easterly  line  of 
the  way.  But  independently  of 
that,  the  question  is  settled,  we 
think,  in  this  commonwealth  in 
favor  of  the  ruling  of  the  land 
court,  though  it  has  been  decided 
differently  in  other  jurisdictions. 
(See  Haberman  v.  Baker,  128  N. 
Y.  253,  13  L.R.A.  611,  28  N.  E. 
370;  Taylor  v.  Armstrong,  24  Ark. 
102;  In  re  Robbins,  34  Minn.  99, 
24  N.  W.  356,  57  Am.  Rep.  40; 
Jones  V.  Water  Lot  Co.,  18  Ga. 
539;  Healey  v.  Babbitt,  14  R.  I. 
533).  In  Lemay  v.  Furtado,  182 
Mass.  280,  65  N.  E.  395,  a  case 
very  similar  to  this,  it  was  held  that 
the  grantee  took  only  to  the  middle 
of  the  way.  It  is  true  that  what 
the  court  said  on  this  point  was  in 
a  sense  obiter.  But  the  point  was 
considered  and  passed  upon  at  the 
request  of  the  parties  with  a  view 
to  disposing  of  the  whole  contro- 
versy, and  the  opinion  is  to  be  re- 


garded, therefore,  as  deciding  the 
question.  The  same  question  was 
considered  in  Gray  v.  Kelley,  80 
N.  E.  651,  with  the  same  result 
as  in  Lemay  v.  Furtado,  supra,  and 
in  Hamlin  v.  Attorney  General,  81 
N.  E.  275,  the  question  was  again 
presented  and  a  like  conclusion  ar- 
rived at.  In  Gray  v.  Kelley,  supra, 
the  doctrine  laid  down  in  the  cases 
cited  above  from  other  states  was 
distinctly  repudiated,  and  this  was 
repeated  in  Hamlin  v.  Attorney 
General,  supra.  See,  also,  Everett 
V.  Fall  River,  189  Mass.  513,  75 
N.  E.  946;  McKenzie  v.  Gleason, 
184  Mass.  452,  69  N.  E.  1076,  100 
Am.  St.  Rep.  566;  Motley  v.  Sar- 
gent, 119  Mass.  231. 

The  evidence  in  regard  to  the 
laying  out  and  construction  of  the 
v.ay  and  the  condition  of  the  lo- 
cality was  admissible  (Motley  v. 
Sargent,  supra,  235 ;  Codman  v, 
Evans,  1  Allen,  443,  466)  ;  but  we 
doubt  whether  the  evidence  in  re- 
gard to  the  ownership  by  the  pe- 
titioner and  her  husband  of  other 
lots  on  the  other  side  of  Benning- 
ton street,  and  that  the  use  of  the 
way  was  of  value  to  their  lots, 
that  the  way  was  used  by  residents 
on  Bennington  street,  and  that  the 
petitioner's  husband  was  paid  for 
such  use  by  some  of  the  residents, 
was  competent.  If  admissible,  how- 
ever, it  does  not  affect  the  construc- 
tion which,  in  our  opinion,  should 
be  given   to  the  mortgage   deeds." 


CHAP.    XXIX.]  DESCRIPTION.  1971 

retain  the  long  and  narrow  strip  of  land  between  the  tract 
conveyed  by  the  deed  and  the  road  mentioned.'  An  owner 
of  an  entire  square  in  a  city,  had  it  divided  into  lots,  and 
caused  a  lane  or  alley  to  be  laid  out  running  through  the 
square,  all  the  lots  adjoining,  and  caused  a  map  of  the  prop- 
erty to  be  made  which  was  filed  in  the  proper  public  office. 
Subsequently,  the  owner  conveyed  a  lot  giving  as  a  part  of  the 
description  its  boundary  on  the  alley  as  marked  on  the  map  and 
terminating  with  the  clause:  "Together  with  the  right  of 
way,  of  the  alley  aforesaid,  which  is  forever  to  be  kept  open 
for  the  use  and  benefit  of  lots  to  which  it  is  adjacent;  said 
alley  being  one  rod  in  width,  and  extending  from  Washing- 
ton to  Jefferson  streets,  as  laid  down  on  the  map  before 
mentioned."  The  owner,  after  the  execution  of  this  deed, 
conveyed  a  lot  on  the  opposite  side  of  the  alley,  referring 
to  the  lot  conveyed  as  numbered  and  marked  upon  the  file,  and 
describing  the  northerly  line  as  running  from  one  of  the 
streets  mentioned  "two  hundred  and  three  feet  and  one  thr 
of  a  foot,  along  an  alley,"  etc.  A  part  of  this  last  mentioned 
lot  was  subsequently  conveyed  to  another,  who  brought  an 
action  of  trespass,  against  the  first  grantee  because  the  latter 
had  built  a  fence  across  the  alley.  The  court  held  that  the 
grantees  under  these  different  deeds  acquired  title  to  the  cen- 
ter of  the  alley,  subject  however,  to  an  easement  or  common 
right  of  passage  of  the  owners  of  the  lot.^  It  was  contended 
that  the  general  rule  that  the  conveyance  of  a  lot  bounded 
upon  a  street  in  a  city,  carried  the  title  to  the  center  of  the 
street,  because  in  the  case  cited,  the  north  line  in  the  descrip- 
tion was  the  line  along  the  lane,  and  it  was  insisted,  that  this 

9  Clayton  v.  Gilmer  County  Court,  Bissell   v.   N.   Y.   C.   R.   R.   Co.,  23 

58  W.  Va.  253,  2  L.R.A.(N.S.)  598,  N.  Y.  61;  Perrin  v.  N.  Y.  C.  R.  R. 

52  S.  E.  103.     But  the  grantee  may  Co.,   36   N.   Y.    120;   In   re   Ladue, 

not  take  the  fee  but  only  an  ease-  118  N.  Y.  220;  Haberman  v.  Baker, 

ment.     Id.  128  N.  Y.  259;   City  of  Buffalo  v. 

iHennessy   v.    Murdock,    137    N.  Pratt,    131    N.    Y.    298,    15    L.R.A. 

Y.  317,  33  N.   E.   330.     See,   also,  413,  30  N.  E.  233- 


1972  THE  LAW  OF  DEEDS.  [CHAP.    XXIX. 

description  did  not  include  the  fee  of  one  half  of  the  lane, 
but  that  the  title  remained  in  the  owner  of  the  original  en- 
tire square,  and  that  as  the  plaintiff  was  required  to  rely  upon 
the  strength  of  his  own  title,  the  action  would  not  lie.  The 
court  said  that  it  could  not  distinguish  the  case  from  the 
authorities  laying  down  the  general  rule,  stating  that  this  con- 
struction had  so  long  prevailed,  that  it  had  become  a  rule  of 
property  and  was  founded  upon  the  presumed  intent  of  the 
parties  to  the  deed.  The  court  added:  "It  is  not  reasonable 
to  infer  that  the  grantor  intended  to  reserve  the  title  to  the 
fee  of  the  narrow  strip  lying  between  the  physical  boundar- 
ies of  the  lot  conveyed,  and  the  center  of  the  street,  or  that  the 
grantee  understood  that  any  such  reservation  had  been  made. 
The  use  of  the  fee  of  the  bed  of  the  street  is  so  inseparably 
connected  with  the  ordinary  use  of  the  adjacent  lot  that  a 
severance  of  the  two  will  not  be  deemed  to  have  been  effected, 
unless  the  presumption  that  the  grantor  intended  to  pass 
title  to  the  center  of  the  street  is  rebutted  by  other  parts  of 
the  deed,  and  by  the  connection  and  relation  of  the  parties 
to  the  lands  conveyed,  and  other  lands  in  the  vicinity.  There 
is  nothing  inconsistent  in  the  Hosmer  [owner]  deed  with  this 
presumption,  but  its  provisions  are  in  harmony  with  and  sup- 
port it"  * 

§  1025c.     Road  as  an  abuttal  and  not  a  monument. — 

Mr.  Chief  Justice  Shaw,  declares  that :  'The  road  is  an  abutt- 
al, not  a  monument;  and  if  the  deed  does  not  say  on  what 
side,  it  shall  be  taken  to  mean  the  center."  ^  Where  the  land 
was  described  as  "Beginning  at  the  easterly  corner  of  said 
Baker's  lot,  and  running  south  400  west,  fourteen  rods  to  a 
cedar  post;  thence  north  35-^°  west  sixteen  rods  to  a  stake 
and  stones  near  an  old  road  leading  to  the  shore;  thence  by 
said  road  north  88f  east  thirteen  rods  to  a  stake  by  a  pair 

2  Hennessy   v.    Murdock,    137    N.  ^  Smith  v.   Slocomb,  9  Gray,  36, 

Y.  317.  323,  33  N.  E.  330.  69  Am.  Dec.  274. 


CHAP.    XXIX.] 


DESCRIPTION. 


1973 


of  bars;  thence  south  60^°  east  seven  rods  more  or  less," 
the  court  held  that  the  description  carried  the  fee  to  the  center 
of  the  road  and  a  right  of  way  to  the  grantee  and  others, 
when  the  road  was  over  the  grantor's  land  and  it  was  necessary 
to  use  it  reasonably  to  enjoy  the  land  conveyed.*  A  person 
conveyed  to  various  grantees  five  lots,  and  each  of  the  first 
four  lots  was  described  as  extending  "to  a  three  feet  wide 
alley,  laid  out  and  opened  by"  the  grantor  "for  the  accommo- 
dation of  this  and  other  lots  adjoining  thereto,  and  leading 
westward  from  the  said  Broad  street  to  the  depth  of  80  feet. 
In  each  of  the  five  deeds  there  was  a  grant  of  the  free  use 
and  privilege  of  the  said  3  feet  wide  alley,  as,  and  for,  a 
passageway  and  water  course  in  common  with  the  owners 
and  occupiers  of  the  said  adjoining  lots."  Each  of  the  own- 
ers of  the  lots  had,  from  the  execution  of  the  deeds  the  free 
and  uninterrupted  use  of  the  alley  as  passageway  and  water 
course  in  common  with  the  ov/ners  and  occupiers  of  the  other 
four  lots.  The  court  held  that  in  the  absence  of  anything 
showing  an  intention  to  the  contrary,  it  should  be  held  that 
the  description  carried  title  to  the  alley.^ 


*  McKenzie  v.  Gleason,  184  Mass. 
452,  69  N.  E.  1076,  100  Am.  St. 
Rep.  566. 

6  Saccone  v.  West  End  Trust  Co., 
224  Pa.  554,  24  L.R.A.(N.S.)  539, 
1Z  Atl.  971. 

The  opinion  of  the  court  was  de- 
livered by  Mr.  Justice  Potter,  who 
went  fully  into  the  subject.  He 
said:  "If  the  alley  in  question  had 
been  a  public  highway,  th,e  grantees 
of  land  bounded  thereby  would, 
withoat  doubt,  have  taken  the  fee 
to  the  center  of  the  highway,  if 
the  grantor  owns  such  fee,  and 
had  used  no  language  in  his  deed 
indicating  an  intention  to  retain 
the  fee  in  the  highway.  In 
one  of  our  latest  cases  bearing  on 


this  question  (Willick  v.  Beaver 
Valley  R.  Co.,  222  Pa.  590,  595,  12 
Atl.  237,  238),  our  brother  Elkin 
said:  "If  the  plan  of  lots  in  the 
present  case  had  been  laid  out  by 
an  individual  in  precisely  the  same 
manner  as  the  commonwealth  has 
done,  and  lots  had  been  sold  with 
streets  as  boundaries,  the  title  of 
the  fee  to  the  center  of  the  streets 
would  have  passed  to  the  pur- 
chasers. This  is  the  rule  of  our 
cases  from  Paul  v.  Carver,  26  Pa. 
223,  67  Am.  Dec.  413,  to  Neely  v. 
Philadelphia,  212  Pa.  551,  61  Atl. 
1096.'  We  can  see  no  good  reason 
vvliy  the  same  rule  should  not  ap- 
ply to  land  which  is  conveyed  as 
bounded    by    a   private    way.      The 


1974 


THE  LAW  OF  DEEDS. 


[chap.    XXIX. 


§  1025d.  Common  use  of  passageway. — The  presump- 
tion that  the  deed  carries  the  fee  is  not  overcome  by  a  clause 
providing  for  the  common  use  of  the  way  both  by  the  grantee 


doctrine  was  substantially  adopted 
by  this  court  in  Ellis  v.  Academy 
of  Music,  120  Pa.  608,  623,  6  Am. 
St.  Rep.  739,  15  Atl.  494,  496,  where 
it  was  said:  'Nor  did  the  court 
err  in  charging  that  parties  who 
are  entitled  to  a  free  use  of  an  al- 
ley have  the  same  right  in  it  that 
the  public  has  in  its  highways,  and 
that  if  the  way  in  this  case  were 
vacated,  the  soil  would  belong  to 
the  plaintiff  and  defendants  as  ten- 
ants in  common.  By  the  several 
grants  to  the  parties,  their  proper- 
ties were  not  only  bounded  on  the 
alley  in  controversy,  but  it  was 
made  appurtenant  to  those  prop- 
erties. Nothing,  therefore,  was  left 
in  the  owner,  and  if  the  fee  did  not 
vest  in  these  grantees,  it  is  hard 
to  tell  where  it  is.  The  case  is 
very  much  like  that  of  Holmes  v. 
Bellingham,  7  C.  B.  N.  S.,  329, 
in  which  Cockburn,  Ch.  J.  says: 
'The  direction  complained  of  is  that 
the  learned  Judge  told  the  jury 
that  there  was  a  presumption  in  the 
case  of  a  private  way  or  occupation 
road  between  two  properties,  that 
the  soil  of  the  road  belongs  usque 
ad  medium  to  the  owners  of  the 
adjoining  property  on  either  side. 
That  proposition,  subject  to  the 
qualification  which  I  shall  presently 
mention,  and  which,  I  take  it,  was 
necessarily  involved  in  what  after- 
wards fell  from  the  learned  Judge 
is  in  my  opinion  a  correct  one. 
The  same  principle  which  applies 
to  a  public  road,  and  which  is  the 
foundation   of   the  doctrine,   seems 


to  me  to  apply  with  equal  force  to 
the  case  of  a  private  road.'  As  the 
doctrine  here  stated,  seems  to  be 
reasonable  and  sound,  we  cannot 
imderstand  why  we  should  not 
adopt  it.  It  seems  to  be  admitted 
that,  were  the  alley  public,  its  va- 
cation would  vest  in  each  of  the 
parties  beyond  unincumbered  one- 
half  of  the  fee  in  severalty,  and 
why  this  should  not  apply  to  a 
private  way,  where,  just  as  in  the 
case  of  a  public  way,  by  the  grant 
it  was  made  appurtenant  to  the 
several  properties  we  cannot  under- 
stand.' The  reference  to  the  above 
plaintiff  and  defendant  as  being 
tenants  in  common  of  the  soil  in 
the  alley  in  case  it  was  vacated 
later  in  the  opinion  it  is  stated  that 
vacation  would  vest  in  each  of  the 
parties  one-half  of  the  fee  in  sev- 
eralty. In  Rice  v.  Clear  Spring 
Coal'  Co.,  186  Pa.  49,  40  Atl.  149, 
the  rule  which  was  approved  by 
this  court  was  thus  stated:  'When 
the  boundary  given  in  a  deed  has 
physical  extent  as  a  road,  street,  or 
other  monument  having  width, 
courts  will  so  interpret  the  language 
of  the  description,  in  the  absence  of 
any  apparent  contrary  intent,  as  to 
carry  the  fee  of  the  land  to  the  cen- 
ter line  of  such  monument.'  And  in 
Schmovle  v.  Betz,  212  Pa.  32,  108 
Am.  St.  Rep.  845,  61  Atl.  525,  a 
case  which  involved  the  use  of  a 
private  alley,  the  doctrine  was  again 
cited  with  approval  that,  in  case  of 
vacation,  the  rule  which  applies  to 
a   public  highway  is  to  be  applied 


CHAP.    XXIX.] 


DESCRIPTION. 


1975 


and  others.^  If  the  deed  conveys  a  tract  of  land  by  metes 
and  bounds,  but  reserves  a  strip  as  a  passageway  for  the  use 
of  the  grantee  and  the  grantor,  the  fee  to  the  passageway 
remains  in  the  grantor.''  But  the  presumption  is  not  re- 
butted by  the  fact  that  the  distances  as  given,  do  not  extend 
to  tlie  center  of  the  way.^  Title  to  the  bed  of  an  ahey  wiH 
pass  where  it  was  laid  out  on  the  outer  edge  of  a  lot  and  was 
referred  to  in  the  general  description  by  a  recital  of  its 
number,  although  in  the  particular  description,  reference  was 
made  to  the  alley  as  the  boundary  of  the  lot.^  Likewise, 
title  to  the  middle  of  an  alley  will  be  transferred  by  a  deed 
conveying  a  lot  described  as  50  feet  wide,  with  a  depth  of 
85  feet  to  an  alley  15  feet  in  width."  ^  A  deed  describing 
land  as  running  "to"  and  along  a  passageway  carries  title  to 
the  center  of  it.^    If  the  deed  declares  that  the  boundary  shall 


as  between   parties   entitled  to   the 

use  of  a  private  alley 

In  the  present  case  the  language 
of  the  deeds  from  Caldcleugh,  as 
set  forth  in  the  case  stated,  shows 
that  at  the  time  of  the  conveyances 
the  alley  was  all  ready  'laid  out 
and  open  by  the  said  Robert  A. 
Caldcleugh,'  and  it  further  appears 
from  the  case  stated  that  after  the 
conveyances  were  made  the  owners 
of  the  lots  continued  the  use  of  the 
alley  and  it  was  not  abandoned  or 
vacated  until  October  6th,  1905,  a 
period  of  over  seventy-three  years. 
So  that  the  facts  of  this  case  dis- 
tinguish it  clearly  from  Robinson 
V.  Myers,  supra,  and  the  subse- 
quent cases  relating  to  unopen 
streets  and  highways.  When  Jus- 
tice Murcur,  in  delivering  the  opin- 
ion of  this  court  in  Spackman  v. 
Steidel,  88  Pa.  453,  said:  'Where 
the  street  called  for  a  boundary  is 
not  a  public  highway,  or  dedicated 
for  public  use,  the  grantee  does  not 


take  title  in  fee  to  the  center  of  it, 
but  by  implication  acquires  an  ease- 
ment or  right  of  way  only  over 
the  lands';  and  then  cites  the  case 
which  we  have  above  referred  to 
(Van  O'Linda  v.  Lothrop  and  Rob- 
inson v.  Myers)- — we  think  it  is  ap- 
parent that  he  had  in  mind  cases 
where  the  deed  called  for  a  street 
that  was  unopen,  as  the  two  cases 
which  he  cites  had  reference  to 
such  unopen  streets." 

6  Gould  V.  Eastern  R.  Co.,  142 
Mass.  85,  7  N.  E,  543;  Motley  v. 
Sargent,  119  Mass.  231;  Freeman 
v.  Say  re,  48  N.  J.  L.  37,  2  Atl. 
650. 

'''  Stearns  v.  Mullen,  4  Gray,  151 

8  Clark  v.  Parker,  106  Mass.  554. 

9  Albert  v.  Thomas,  73  Md.  181, 
20  Atl.  912. 

1  Lindsay  v.  Jones,  21  Nev.  72, 
25    Pac.   297. 

2  Freeman  v.  Say  re,  48  N.  J.  L. 
27.   2  Atl.   650. 


1976  THE  LAW  OF  DEEDS.  [CHAP.    XXIX. 

run  "by"  the  way,  the  fee  to  the  center  is  carried,  although 
the  boundary  running  perpendicular  to  the  way  is  described  to 
be  of  a  length,  that  is  not  sufficient  to  extend  to  the  line  of 
the  way.'  Where  an  owner  of  a  single  tract  of  land,  conveys 
it  in  two  parcels,  one  described  as  the  northern  half  and 
the  other  as  the  southern  half,  by  metes  and  bounds,  and  an 
alley  is  given  as  the  southern  and  northern  boundary,  re- 
spectively, and  an  alley  would  be  created  between  the  two 
parcels  by  such  metes  and  bounds,  title  to  the  center  of  the 
alley  will  vest  in  each  grantee.*  If  a  deed  states  that  the 
land  is  bounded  by  a  gangway  and  provides  that  it  is  made 
with  the  express  understanding  of  the  grantor's  right  to  main- 
tain a  gateway  across  it,  it  will  carry  title  to  the  center  of 
the  gangway.^  The  fact  that  the  way  was  not  in  existence 
at  the  time  of  the  execution  of  the  deed,  or  had  never  been 
fenced  off,  does  not  overcome  the  presumption  that  title  pass- 
es to  the  center  of  the  way.®  But  some  cases  hold  that  where 
the  land  conveyed  is  bounded  by  a  street  not  opened,  the  fee 
passes  only  to  the  side  line  of  the  street  with  an  easement 
over  its  bed.' 

8Lemay   v.    Furtado,    182    Mass.  (N.S.)   539,  73  Atl.  971,  in  which 

280,  65  N.  E.  395.  the  court  say:     "In   some   of   our 

*  First    Pres.    Church    v.    Kellar,  cases  the  language  used  appears  to 

39  Mo.  App.  441.  sustain  the  contention  of  appellants 

6  Bentley   v.   Root,   19  R.   I.  205,  that  there  is  a  distinction  between 

32  Atl.  918.     See  for  various  other  a  call  for  a  private  highway   as  a 

cases  in  which  deeds  have  been  con-  boundary   and   a  private   street   or 

strued  as  passing  title  to  the  center  alley  so  designated.     But  we  think 

of    the    way :     Wise   v.    Curry,    72  upon    examination    that    these    de- 


N.  Y.  Supp.  165,  35  Misc.  634 
Winslow  v.  King,  14  Gray,  321 
Morgan    v.    Moore,    3    Gray,    319 


cisions  were  not  intended  to  go 
further  than  to  hold  that,  where 
land  is  conveyed  as  bounded  by  an 


Pitney    v.    Huested,    8    App.    Div.  unopened  street,  the  grantee  takes 

105,  40  N.  Y,  Supp.  407.  the  fee  only  to  the  side  line  of  the 

6  Stark  v.  Coffin,  105   Mass.  328.  street,    with   an   easement   over   its 

7  Clymer  v.  Roberts,  220  Pa.  162,  bed.  Thus  in  Cole  v.  Philadelphia, 
69  Atl.  548.  This  matter  is  dis-  199  Pa.  464,  49  Atl.  308,  the  deed 
cussed  in  Saccone  v.  West  End  called  for  a  street  which  was  un- 
Trust  Co.,  224  Pa.  554,  24  L.R.A.  opened,   and   it   was   held  that  the 


CHAP.    XXIX.] 


DESCRIPTION. 


1977 


§  1025e.     Presumption  as  to  center  of  alley  rebutted. 

The  rule  declaring  that  title  is  carried  to  the  middle  of  a 
way,  when  it  is  mentioned  as  a  boundary,  is  not  an  absolute 
and  arbitrary  rule  to  be  applied  indisciminately  in  all  cases, 
without  regard  to  the  intention  of  the  parties.  It  is  on  the 
contrary,  a  rule  of  construction,  which  the  courts  adopt  for 
the  purpose  of  ascertaining  the  true  meaning  of  the  language 
which  they  have  employed.^  If  a  deed  describes  the  land 
conveyed  as  bounded  by  a  passageway,  referring  to  another 
deed  for  description,  which  does  not  convey  any  part  of  the 
way,  and  to  a  plan  in  which  the  measurements  are  minutely 


call  for  an  unopen  street  as  a 
boundary  only  conveyed  the  title  to 
the  side  of  the  street,  and  not  to 
the  middle  thereof.  In  Clymer  v. 
Roberts,  220  Pa.  162,  69  Atl.  548, 
the  deed  called  for  'the  middle  line 
of  Howard  street,  50  feet  wide; 
thence  along  the  middle  line  of  said 
Howard  street."  Howard  street 
was  at  the  time  an  unopen  street; 
but  it  was  held  that  the  purpose  of 
making  the  boundary  to  be  the  mid- 
dle line  of  the  street  was  to  vest 
the  fee  in  the  grantee  as  far  as  the 
center  line,  notwithstanding  the 
fact  that  the  street  was  at  the  time 
unopened.  In  Robinson  v.  Myers, 
67  Pa.  9,  where  the  rule  with  re- 
gard to  unopen  streets  seems  to 
have  been  first  laid  down,  this  dis- 
tinction is  expressly  made.  Jus- 
tice Williams,  after  stating  the 
doctrine  of  Paul  v.  Carver,  26  Pa. 
223,  67  Am.  Dec.  413,  and  Cox  v. 
Freed] ey,  33  Pa.  124,  75  Am.  Dec. 
584,  said,  with  reference  to  the  case 
then  before  him:  'But  in  this  case 
tliere  was  no  alley  or  street  by 
which  the  lots  were  bounded.  The 
recorded  plan  which  is  to  be  taken 


as  a  part  of  the  defendant's  title 
shows  that  the  ground  in  question 
is  a  lot  and  not  a  street.  And  it  is 
admitted  that  no  alley  was  ever 
laid  out  over  the  lot,  or  ever  used 
by  the  public,  or  by  private  indivi- 
duals. There  is,  then,  no  ground 
or  reason  for  the  application  of  the 
rule  laid  down  in  Paul  v.  Carver, 
to  this  case.'  The  case  of  Van 
O'Linda  v.  Lothrop,  21  Pick.  292, 
32  Am.  Dec.  261,  cited  in  Robinson 
v.  Myers,  and  also  by  Justice  Mur- 
cer  in  Spackman  v.  Steidel,  88  Pa. 
453,  relied  on  by  appellants,  was 
also  a  question  of  an  unopen  street. 
Morton,  J.  said  (page  296  of  38 
Mass.)  :  'The  street  did  not  then 
exist  in  actual  use,  but  only  in  con- 
templation.' The  decision  there 
seems  to  have  gone  upon  the 
ground  that  the  deeds  showed  an 
intention  by  the  grantors  to  ex- 
clude the  fee  of  the  street  from  the 
grant." 

8  Codman  v.  Evans,  1  Allen,  443 ; 
Motley  v.  Sargent,  119  Mass.  231; 
Crocker  v.  Cotting,  166  Mass.  183, 
23  L.R.A.  245,  44  N.  E.  214. 


1978  THE  LAW  OF  DEEDS.  [CHAP.    XXIX. 

specified,  and  whicli  excludes  the  way,  and  if  the  deed  also 
grants  the  use  of  the  passageway  in  terms,  without  the  reser- 
vation of  any  rights,  and  if  the  fee  to  one  side  of  the  way 
still  continues  to  be  in  those  who  laid  out  the  property,  and, 
if  in  addition  to  these  facts,  the  parties  have  placed  a  practic- 
al construction  on  their  acts  by  considering  that  the  w^ay  was 
excluded  by  the  deed,  the  deed  will  not  be  construed  as  in- 
cluding any  part  of  the  fee  of  the  w^ay.^  It  was  argued 
that  none  of  these  facts  above  stated,  taken  singly,  would  be 
enough  to  exclude  the  fee  to  the  right  of  w-ay  and  that  they 
could  do  no  more  when  taken  together.  But  Mr.  Justice 
Holmes  answered :  "We  do  not  consider  whether  the  premise 
is  correct,  because,  in  our  opinion,  the  consequence  does  not  fol- 
low. On  a  question  of  construction,  a  number  of  facts,  all 
pointing  the  same  way,  may  have  an  effect  which  no  one  of 
them  would  have  done."  ^  A  grantee  does  not  obtain  title  in 
fee  to  any  part  of  a  private  road,  the  line  of  which  is  mentioned 
in  the  deed,  as  a  boundary  of  the  land  conveyed,  and  by 
which  deed,  the  right  to  open  and  use  the  road  is  conferred 
upon  the  grantee.^  If  the  description  is  by  metes  and  bounds, 
the  fact  that  it  is  bounded  in  one  direction  by  the  northerly 
line  of  a  lane,  will  not  carry  title  beyond  the  northerly  line  of 
the  lane.'  Likewise,  where  the  deed  describes  the  land  con- 
veyed by  metes  and  bounds,  without  mentioning  an  abutting 
strip  of  land,  which  is  in  the  nature  of  an  alley,  the  conveyance 
in  the  deed,  of  an  easement  of  a  right  of  way  in  this  alley  does 
not  pass  title  to  any  part  of  the  alley.*  As  said  by  Mr.  Justice 
Frick :  "At  common  law,  where  a  grant  is  bounded  by  a  public 
street  or  highway,  which  is  expressly  referred  to  in  the  convey- 

9  Crocker   v.    Cotting,    166    Mass.  8  Jones  v.  Cowman,  2  Sandf.  234. 

183,  33  L.R.A.  245,  44  N.  E.  214.  *  Brown   v.   Oregon   Short  L.   R. 

1  Crocker   v.   Cotting,   166   Mass.      Co.,      (Utah),      24      L.R.A.(N.S.) 
183,  33  L.R.A.  245,  44  N.  E.  214.  86,   102  Pac.  740. 

2  Clayton  v.  Gilmer  County  Court, 
58  W.  Va.  253,  2  L.R.A.(N.S.)  598, 
52  S.  E.  103. 


CHAP.    XXIX.]  DESCRIPTION.  1979 

ance  as  such,  the  title  passes  to  the  grantee  to  the  center  of 
such  street  or  highway,  if  the  grantor  had  the  title;  and  in 
such  case,  if  the  street  or  highway  is  vacated,  the  land  in  the 
highway  reverts  to  the  abutting  landowner.  The  principle, 
however,  is  not  of  universal  application  under  all  circumstan- 
ces. The  grantor  may  restrict  his  conveyance  by  apt  words, 
to  the  precise  parcel  of  land  intended  to  be  conveyed,  and  he 
may  reserve  to  himself  the  title  to  that  portion  of  the  land 
within  the  street,  subject  to  the  public  easement:  and,  if  it 
appears  that  such  was  the  intention  of  the  parties,  the  in- 
tention will  prevail,  and  the  land  in  the  street,  in  case  it  is 
vacated,  will  revert  to  the  grantor,  and  not  to  the  abutting 
owner."  ^  The  fee  does  not  pass  where  the  grantor  conveys 
a  tract  of  land  described  by  metes  and  bounds,  except  a  strip 
of  a  certain  width,  which  he  reserved  as  a  passageway,  for 
the  common  use  of  the  grantee  and  himself  and  those  holding 
under  him.®  If  the  land  is  described  as  being  bounded  on 
the  east  on  a  30  foot  way  "by  a  line  which  is  parallel  with 
and  190  feet  distant  from  B  street,"  and  if  the  way  is  thirty 
feet  in  width  and  apparently  west  of  the  street  is  only  one 
hundred  and  sixty  feet  in  distance  from  the  street,  title  to  any 
part  of  the  way  does  not  pass."^  No  part  of  the  way  passes 
to  the  grantee,  where  the  description  runs  one  line  "to"  the 
near  line  of  way,  and  another  call  carries  it  from  that  point 
"by"  such  line.®  The  grantee  will  take  to  the  side  line  only 
of  a  passageway,  where  it  is  described  as  "lying  between" 
the  land  conveyed  and  land  which  the  grantor  retains,  and 

5  Brown  v.  Oregon  S.  L.  R.  Co.,  ^  McKenzie  v.  Gleason,  184  Mass. 

(Utah),      24      L.R.A.(N.S.)       86,  452,   69   N.   E.    1076,    100   Am.    St. 

102    Pac.    740.      See,    also,    Elliott  Rep.  566.   See,  also,  Treat  v.  Joslyn, 

Roads     &     Streets,     2d     ed.     886;  139  Mass.  94,  29  N.  E.  653;  Gray 

White's    Bank    v.    Nichols,    64    N.  v.  Kelley,  194  Mass.  533,  80  N.  E. 

^■.    (  ?  ;    Lnnkin    v.    Tarwilliger,    22  651 ;  Lough  v.  Machlin,  40  Ohio  St. 

Or.  97,  29  Pac.  268.  332. 

c  Stearns  v.   Mullen,  4  Gray.   151. 

'Brainard  v.  Boston  &  N.  Y.  C 
R.  Co.,  12  Gray,  407. 


1980  THE  LAW  OF  DEEDS,       '  [CHAP.    XXIX. 

where  the  deed  recites  measurements  and  refers  to  a  plot, 
which  tends  to  show  the  exclusion  of  the  way,  and  where  a 
convenant  is  contained  in  the  deed  that  the  grantee  shall  have 
the  use  and  benefit  of  the  passageway  described  as  situated 
"between"  the  two  holdings.^ 

§  1026.  Land  bounded  by  lake  or  pond. — If  the  land 
is  bounded  by  a  natural  lake  or  pond,  the  grantee's  title  ex- 
tends to  low-water  mark.^  But  if  the  land  is  bounded  by  an 
artificial  pond,  the  grantee's  title  extends  to  the  middle  of 
the  pond.^  A  deed  described  the  land  as  bounded  on  a  certain 
pond.  It  appeared,  however,  upon  applying  the  deed  to  the 
local  objects  embraced  within  the  description  that  the  pond 
was  a  natural  one,  which  was  raised  to  various  heights  at 
different  times  by  means  of  a  dam  existing  and  in  use  at  the 
time  of  the  execution  of  the  deed.  The  court  held  that  there 
was  a  latent  ambiguity  in  the  deed,  and  that  it  was  competent 
to  show  by  parol  evidence  that  at  the  time  of  the  execution 

•  Codman  v.  Evans,  1  Allen,  443.  boundary  line,  where  there  was  in 

See,  also,  Frost  v.  Jacobs,  (Mass.),  the   deed   no   express   provision   to 

90  N.  E.  357.  that  effect,  and   especially  when  it 

iKing  V.  Young,  76  Me.  1^,  49  would  deprive  the  grantee  of  valu- 
Am.  Rep.  596;  Wheeler  v.  Spinola,  able  water  privileges:  Brown  Oil 
54  N.  Y,  377;  West  Roxbury  v.  Co.  v.  Caldwell,  35  W.  Va.  95,  29 
Stoddard,  7  Allen,  167;  Stephens  Am.  St.  Rep.  793. 
V.  King,  "Ki  Me.  197.  See  Seaman  2  Hathorne  v.  Stinson,  1  Fairf. 
V.  Smith,  24  111.  521;  Bradley  v.  238,  25  Am.  Dec.  228;  State  v. 
Rice,  13  Me.  198,  29  Am.  Dec.  501 ;  Gilmanton,  9  N.  H.  461.  See  Low- 
Canal  Commissioners  v.  The  Peo-  ell  v.  Robinson,  16  Me.  357,  33 
pie,  5  Wend.  423;  Champlin  etc.  Am.  Dec,  671;  Smith  v.  Miller, 
R.  R.  Co.  V.  Valentine,  19  Barb.  5  Mason,  196;  Mansur  v.  Blake, 
484;  Austin  v.  Rutland  R.  R.  Co.,  62  Me.  38;  Robinson  v.  White,  42 
45  Vt.  215;  Hathorne  v.  Stinson,  Me.  209;  Cook  v.  McClure,  58  N. 
12  Me.  183,  28  Am.  Dec.  167.  When  Y.  437,  17  Am.  Rep.  270 ;  Wood  v. 
land  is  bounded  by  a  river,  a  de-  Kelley,  30  Me.  55;  Phinney  v. 
scription  will  be  construed  as  Watts,  9  Gray,  269,  69  Am.  Dec. 
though  the  grantor  did  not  intend  288;  Ledyard  v.  Ten  Eyck,  2)(i  Barb, 
to  retain  a  mere  narrow  strip  be-  102;  Fletcher  \.  Phelps,  28  Vt  257. 
tween   the   land  conveyed   and   his 


CHAP.    XXIX.] 


DESCRIPTION. 


1981 


of  the  deed  a  certain  line  was  agreed  upon  and  understood 
to  be  the  boundary  of  the  pond.^  Where  a  city  took  a  por- 
tion of  two  lots  divided  by  a  brook  for  a  use  as  a  stone  reser- 


3  Waterman  v.  Johnson,  13  Pick. 
261.  The  opinion  was  delivered 
by  Chief  Justice  Shaw,  who  said: 
"The  rule  is  clear,  that  where  the 
parties  make  any  definite  agree- 
ment in  their  deed,  such  agreement 
will  control  any  legal  implication. 
But  where  general  terms  are  used 
in  a  description,  the  court  will  put 
a  construction  upon  those  terms, 
where  any  definite  rule  has  been 
established,  and,  in  such  case,  parol 
evidence  will  not  be  admissible  to 
control  the  legal  effect  of  such  de- 
scription, any  more  than  to  control 
the  plain  meaning  or  legal  effect  of 
any  clause  or  stipulation  contained 
in  a  deed.  As  where  the  deed 
bounds  the  premises  upon  the  sea 
or  salt  water,  the  legal  effect  is  to 
give  a  title  to  the  soil,  subject  to 
certain  limitations,  to  low-water 
mark,  such  being  the  legal  construc- 
tion put  upon  this  description  by 
the  colony  ordinance  and  by  usage. 
So  if  the  premises  conveyed  are 
bounded  on  a  river  not  navigable, 
the  grant  extends,  by  legal  opera- 
tion, to  the  filum  aquas  or  thread 
of  the  river,  though  in  both  these 
cases  the  parties,  if  they  think  fit, 
may  limit  their  grants  by  definite 
language,  so  as  to  give  them  a 
different  operation,  and  thus  ex- 
clude the  flats  or  the  bed  of  the 
river  in  the  above  cases  respectively. 
But  where  a  description  is  em- 
ployed which  has  not,  by  statute, 
usage,  or  judicial  decision,  acquired 
a  fixed  legal  construction,  or  a 
boundary  is  referred  to  which  is 
fluctuating     and     variable,     other 


means  must  be  resorted  to  in  order 
to  ascertain  the  meaning  and  con- 
struction of  the  deed.  Now  the 
word  'pond'  is  indefinite.  It  may 
mean  a  natural  pond,  or  an  artificial 
pond  raised  for  mill  purposes, 
either  permanent  or  temporary,  and 
in  both  cases  the  limits  of  such 
body  of  water  may  vary  at  different 
times  and  seasons,  by  use  or  by 
natural  causes,  and  where  the  one 
or  the  other  is  adopted  as  a  de- 
scriptive limit  or  boundary,  a  dif- 
ferent rule  of  construction  may  ap- 
ply. A  large  natural  pond  may 
have  a  definite  low-water  line,  and 
then  it  would  seem  to  be  the  most 
natural  construction,  and  one  which 
would  be  most  likely  to  carry  into 
effect  the  intent  of  the  parties,  to 
hold  that  land  bounded  upon  such  a 
pond  would  extend  to  low-water 
line,  it  being  presumed  that  it  is 
intended  to  give  to  the  grantee  the 
benefit  of  the  water,  whatever  it 
may  be,  which  he  could  not  have 
upon  any  other  construction.  Where 
an  artificial  pond  is  raised  by  a 
dam,  swelling  a  stream  over  its 
banks,  it  would  be  natural  to  pre- 
sume that  a  grant  of  land  bounding 
upon  such  a  pond  would  extend  to 
the  thread  of  the  stream  upon  which 
it  is  raised,  unless  the  pond  had 
been  so  long  kept  up  as  to  become 
permanent,  and  to  have  acquired 
another  well-defined  boundary. 
But  it  is  difficult  to  apply  either 
of  these  rules  to  the  present  case, 
which  is  that  of  a  pond  originally 
natural,  but  which  has  been  raised 
more   or   less   by   artificial  means. 


1982  THE  LAW  OF  DEEDS.  [CHAP.    XXIX. 

voir  in  which  to  store  water,  and  afterwards  abandoned  the 
reservoir,  a  deed,  made  when  the  reservoir  was  in  existence, 
by  the  owner  of  one  of  the  lots,  describing  the  land  as  bounded 
"by  the  city  reservoir,"  will  not  pass  title  to  that  portion  of 
the  original  lot  occupied  by  the  reservoir,  where  it  does  not 
appear  that  the  enjoyment  of  the  land  occupied  by  such  reser- 
voir was  required  for  that  portion  of  the  land  sold.  In 
such  a  case  the  rule  as  to  the  division  of  streams  does  not 
apply  to  the  reservoir.* 

§  1026a.  Effect  of  meander  lines. — The  object  of  a 
meander  line  is  to  show  the  general  course  of  the  stream,  and 
is  not  to  be  construed  as  limiting  the  boundary  line  so  as 
to  prevent  it  running  as  far  as  it  would  run  if  the  stream 
itself  was  named  as  a  boundary.  The  purpose  of  such  lines 
is  well  explained  in  the  language  of  Mr.  Justice  Clifford: 
"Meander  lines  are  run  in  surveying  fractional  portions  of 
the  public  lands  bordering  upon  navigable  rivers,  not  as  bound- 
aries of  the  tract,  but  for  the  purpose  of  defining  the  sinu- 
osities of  the  bank  of  the  stream,  and  as  the  means  of  as- 
certaining the  quantity  of  the  land  in  the  fraction  subject  to 
sale,  and  which  is  to  be  paid  for  by  the  purchaser."  ^    Or  to 

The  discovery  of  this  fact,  upon  ap-  middle  of  an  artificial  pond  is  the 
plying  the  deed  to  the  local  objects  boundary,  see  Boardman  v.  Scott, 
embraced  within  its  descriptive  102  Ga.  404,  51  L.R.A.  178,  30  S.  E. 
terms,  discloses  a  latent  ambiguity.  982;  Warren  v.  City  of  Glovers- 
According  to  a  well-established  rule  ville,  80  N.  Y.  S.  912,  81  App. 
of   evidence,   therefore,   it   is   com-  Div.  291. 

petent    to    resort    to    parol    proof,  ^  Railroad    Co.    v.    Schurmer,    7 

showing  all  the  circumstances  from  Wall.  272,  19  L.  ed.  74;  Jefferis  v. 

which    a    legal    inference    can    be  East  Omaha  Land   Co.,   134  U.   S. 

drawn,  that  one  or  another  line  was  178,  23  L.  ed.  872.     In  Harden  v. 

intended  by  the  ambiguous  descrip-  Jordan,    140   U.    S.   371,  35   L.    ed. 

tion   used   in   the   deed.      And   this  428,  the  court  say:     "It  has  never 

is,  in  truth,  what  both  parties  have  been  held  that  the  lands  under  wa- 

done  in  the  present  case."  ter,    in    front   of    such    grants,   are 

4  Dillon  V.  Burke,  73  N.  H.  539,  reserved   to   the   United   States,   or 

63   Atl.    927.     That   generally    the  that  tliey  can  be  afterward  granted 


CHAP.    XXIX.]  DESCRIPTION.  1983 

quote  the  language  of  Mr.  Justice  Dillon:  "The  plaintiff's 
theory  seems  to  be  that  defendant  is  only  entitled  to  the 
quantity  of  land  called  for  in  the  patent  and  shown  on  the 
plat;  that  the  grant  is  limited  to  the  meandered  line.  This 
is  an  error.  The  grantee  gets  all  down  to  the  river,  be  it  more 
or  less.  The  line  is  meandered  chiefly  to  obtain  the  quantity, 
and  the  meander  line  is  not  a  line  of  boundary."  ^  The 
principle  is  so  well  established  that  it  would  serve  no  good 
purpose  to  elaborate  it.  Some  of  the  cases  in  which  it  has 
been  applied  will  be  found  in  the  note.'''  Unless  the  deed 
expressly  makes  them  so,  meander  lines  are  not  boundary 
lines.  The  wet  land  as  well  as  the  dry  will  pass  by  a  deed 
both  within  and  without  the  meander  line.*  But  although 
meander  lines  will  not  restrict  the  title  of  the  grantee  within 
the  legal  subdivision  on  which  he  is  located,  they  will  not 
pass  title  to  land  located  in  some  other  legal  subdivision.^ 
The  upland  owner  has  the  title  to  land  lying  between  the 

out  to  other  persons,  to  the  injury  '^  Schurmeier   v.    St.    Paul    R.    R. 

of  the  original  grantees.     The  at-  Co.,  10  Minn.  82,  88  Am.  Dec.  59; 

tempt  to  make  such  grants  is  cal-  Fuller  v.   Dauphin,    124   111.   542,   7 

culated   to   render   titles    uncertain,  Am.    St.    Rep.    388;    Middleton    v. 

and  to  derogate  from  the  value  of  Pritchard,  3  Scam.  510,  38  Am.  Dec. 

natural  boundaries,  like  streams  and  112;  Bruce  v.  Taylor,  2  J.  J.  Marsh, 

bodies  of  water."     In  the  case  just  160;    Chandos    v.    Mack,    11    Wis. 

cited  the  court  held  that  the  ruling  ^1Z,  10  L.R.A.  207,  20  Am.  St.  Rep. 

of   the   Supreme   Court   of   Illinois  139;   Minto  v.  Delaney,  7  Or.  342; 

in  Trustees  of   Schools  v.  Schroll,  Ladd    v.    Osborne,    79    Iowa,    93; 

120  111.  509,  60  Am.  Rep.  575,  that  Sphung    v.    Moore,    120    Ind.    352; 

a  grant  of  lands  bounded  by  a  lake  Brown  v.  Huger,  21   How.  320,  16 

or  stream   does  not  extend  to  the  L.  ed.  130;  Yates  v.  Van  de  Bogert, 

center,  was  not  essential  to  the  de-  56  N.  Y.  526;  Churchill  v.  Grundy, 

cision  of  the  case,  was  opposed  to  5  Dana,  100;  Oakes  v.  De  Lancey, 

the  previous  decisions  in  that  State,  133    N.    Y.    227,   28   Am.    St.    Rep. 

and,  hence,  it  was  disregarded.    See,  628. 

also,  Mitchell  v.  Smale,   140  U.   S.  8  Tollcston    Club    of    Chicago    v. 

406.  Slate,  141   Ind.   197,  38  N.  E.  214, 

6  Kraut    V.    Crawford,    18    Iowa,  40  N.  E.  690. 

549,   87  Am.   Dec.   414.      See,   also,  9  Palmer  v.  Dodd,  64  Mich.  474, 

Musser   v.   Hershey,  42   Iowa,   364.  31  N.  W.  209. 


1984 


THE  LAW   OF  DEEDS, 


[chap.    XXIX. 


meander  line  of  a  navigable  lake  and  the  line  created  by 
ordinary  high  water.^ 

§  1027.  Estoppel  from  description  of  land  as  bounded 
by  a  street.— Where  the  deed  describes  the  premises  as 
fronting  a  certain  number  of  feet  on  a  street,  the  grantor 
and  all  claiming  under  him  are  estopped  from  subsequently 
asserting  that  the  street  mentioned  in  the  deed  did  not  ex- 
tend in  front  of  the  premises.'^  In  such  a  case  the  grantee 
is  entitled  to  have  the  street  kept  open  for  his  accommodation 
in  the  enjoyment  of  his  property.'     But  a  description  in  a 


1  Johnson   v.    Brown,   33   Wash. 
588,    74    Pac.    677.      The    meander 
line  of  a  government  survey  along 
a  stream  is  not  considered  to  be  a 
boundary  line:    Berry  v.   Hoogen- 
doom,   133   Iowa,  437,   108  N.   W. 
923.     See    further   as   to   meander 
lines:    Heald  v.  Yumesko,  7  N.  D. 
422,  75  N.  W.  806;  Olson  v.  Thorn- 
dike,  76  Minn.  399,  79  N.  W.  399; 
Kirby  v.   Potter,   138   Cal.   686,   72 
Pac.    338;    Tolleston    Club    etc.    v. 
Lindgren,  39  Ind.  App.  448,  11  N. 
E.  818;  Leonard  v.  Wood,  Zl  Ind. 
App.  383,  70  N.  E.  827;  Dizon  v. 
City  of  Logansport,   151   Ind.   626, 
44  L.R.A.  814,  50  N.  E.  377;  John- 
son  V.   Tomlinson,   41    Or.   198,   68 
Pac.    406;    Coburn    v.    San    Mateo 
Co.,    75    Fed.    520;    Chapman    etc. 
Land  Co.  v.  Bigelow,  11  Ark.  338, 
92  S.  W.  534;  Johnson  v.  Hurst,  10 
Idaho,  308,  11  Pac.  784;  Hendricks 
V.    Feather    River    Canal    Co.,    138 
Cal.  423,  71    Pac.   496;   Schulte   v. 
Warren,    218    111.    108,    13    L.R.A. 

(N.S.)  745,  75  N.  E.  783,  reversing 
120  111.  App.  10;  Tolleston  Club 
etc.  v.  State,  141  Ind.  197,  38  N.  E. 
214,  40  N.  E.  690;  Welch  v.  Brown- 


ing, 115  Iowa,  690,  87  N.  W.  430; 
Schlosser  v.  Hemphill,  118  Iowa, 
452,  90  N.  W.  842 ;  Gofftv.  Cougle, 
118  Mich.  307,  42  L.R.A.  161,  76 
N.  W.  489;  Hanson  v.  Rice,  88 
I^Iinn.  273,  92  N.  W.  982;  Sherwin 
V.  Bitzer,  97  Minn.  252,  106  N.  W. 
1046;  Provins  v.  Lovi,  6  Okla.  94, 
50  Pac.  81;  Barnhart  v.  Ehrhart, 
33  Or.  274,  54  Pac.  195;  Griffin  v. 
Barbere,  29  Tex.  Civ.  App.  325,  68 
S.  W.  698;  Washougal  etc.  Co.  v. 
The  Dalles  etc.  Co.,  27  Wash.  490, 
68  Pac.  74;  Maynard  v.  Puget 
Sound  Nat.  Bank,  24  Wash.  455, 
64  Pac.  754. 

2  White  v.  Smith,  37  Mich.  291; 
Smith  v.  Lock,  18  Mich.  56 ;  Parker 
v.  Smith,  17  Mass.  413,  9  Am.  Dec. 
157.  See  Transue  v.  Sell,  105  Pa. 
St.  604,  and  cases  cited. 

3  Smith  V.  Lock,  18  Mich.  56; 
Farming  v.  Osborne,  34  Hun,  121. 
In  Smith  v.  Lock,  18  Mich.  56,  the 
description  of  the  premises  sold 
was :  "Commencing  at  the  north- 
east corner  of  the  M.  S.  Railroad 
depot  grounds,  in  the  village  of 
Burr  Oak,  thence  sovUh  one  hun- 
dred feet,  thence  easterly  along  the 


CHAP.    XXIX.] 


DESCRIPTION. 


1985 


deed  of  land  bounded  by  a  street,  is  not  equivalent  to  a  cove- 
nant of  the  existence  of  a  street  of  the  same  width  as  a  street 
of  that  name,  when  such  street,  though  graded  and  laid  out 
in  a  plan  published  by  the  former  owner  of  the  property,  has 
subsequently  been  closed  and  plowed  up.  Such  a  description 
under  these  circumstances  amounts  only  to  a  covenant  of  the 
existence  of  a  way  of  reasonable  width  necessary  and  con- 
venient for  the  use  of  the  grantee  in  the  use  of  the  land 
conveyed.*  A  grantor  in  a  deed  bounding  the  land  on  a  pri- 
vate way  not  defined  in  the  deed,  but  shown  upon  a  plan  re- 
ferred to  in  the  deed,  and  recorded  in  the  registry  of  deeds, 
is  estopped  to  deny  the  existence  of  such  way.^  If  the  land 
conveyed  is  bounded  by  an  alley,  the  alley  when  closed  re- 
verts to  the  owners  adjoining.® 


line  of  the  company's  ground  until 
it  intersects  the  creek,  thence  north- 
erly along  the  line  of  said  creek 
until  it  intersects  the  line  of  Front 
Street,  thence  westerly  along  said 
line  of  said  street  to  the  place  of 
beginning."  The  grantor  claimed 
afterward  that  Front  Street  did  not 
extend  along  the  front  of  this  lot, 
and  sold  the  land  on  the  north  side 
of  the  lot  up  to  the  grantee's  line 
to  another  party,  and  the  latter  be- 
gan to  build  a  house  upon  the  land 
which  he  thus  bought.  A  bill  was 
filed  to  obtain  a  perpetual  injunc- 
tion, and  it  was  not  denied  that 
there  was  a  street  called  Front 
Street  which  extended  to  the  gran- 
tee's lot  on  the  west,  and  which  was 
fifty  feet  in  width,  and  which,  if 
extended  in  front  of  the  lot  in 
question,  would  include  the  house 
that  the  second  purchaser  was 
building.  The  court  held  that,  it 
did  not  follow  because  no  street 
Deeds,  Vol.  IL— 126 


had  been  regularly  laid  out  or  dedi- 
cated to  the  public  in  front  of  the 
grantee's  lot,  that  he  was  not  en- 
titled to  relief;  that  it  was  a  mat- 
ter of  private  right,  and  was  not 
affected  by  the  question  whether 
the  public  had  acquired  a  right  of 
way  or  not.  And  see  De  Witt  v. 
Van  Schoyk,  35   Hun,    103. 

*  Walker  v.  City  of  Worcester, 
6  Gray,  548. 

5  Fox  V.  Union  Sugar  Refinery, 
109  Mass.  292;  Parker  v.  Bennett, 
11  Allen,  388;  Murdock  v.  Chap- 
man, 9  Gray,  156 ;  Morgan  v.  Moore, 
3  Gray,  319;  Lunt  v.  Holland,  14 
Mass.  149;  Sheen  v.  Stothart,  29 
La.  Ann.  630;  Davis  v.  Rainsford, 
17  Mass.  207.  And  see  Tobey  v. 
Taunton,  119  Mass.  404;  Stetson 
v.  Dow,  16  Gray,  372. 

6  Cincinnati  &  Georgia  R.  R.  Co 
V.  Mims,  71  Ga.  240;  Healey  v. 
Babbitt,  14  R.  I.  533. 


1986  THE  LAW   OF  DEEDS.  [CHAP.    XXIX, 

§  1028.  Navigable  streams  and  tide-waters. — The  rule 
where  land  is  bounded  by  navigable  streams  or  tide-waters 
is,  that  the  grantor's  right  extends  only  to  high-water  markJ 
In  a  case  in  Connecticut,  Mr.  Justice  Daggett  said:  "The 
doctrine  of  the  common  law  is,  that  the  right  to  the  soil  of 
the  proprietors  of  land  on  navigable  rivers  extends  only  to 
high-water  mark;  all  below  is  publici  juris — in  the  king,  in 
England.  That  is  the  law  in  Connecticut;  for  we  have  no 
statute  abrogating  it.  It  was  the  law  brought  by  our  an- 
cestors ;  it  is  our  law ;  the  soil  being  not  indeed  owned  by  the 
king,  but  by  the  State."  *  In  a  technical  sense,  arms  of  the 
sea,  and  rivers  which  flow  and  reflow  with  the  tide  are  said 
to  be  navigable.  But  generally,  in  this  country,  all  rivers 
which  are  in  fact  navigable  are  considered  to  be  such.® 

§  1028a.  Reason  for  these  rules. — The  natural  pre- 
sumption where  a  deed  conveys  land  bordering  on  a  stream 
or  highway  is,  that  the  grantor  means  to  convey  what  he 
owns,  and  not  to  reserve  a  strip  of  land  of  no  value  to  him, 
but  the  loss  of  which  to  the  grantee  might  be  productive  of 
great  injury.  He  has  power  by  apt  words  to  reserve  what 
and  as  much  as  he  pleases,  or  so  to  frame  the  language  of 
his  conveyance  as  to  limit  the  land  conveyed  to  the  line  of 
the  stream  or  highway,  without  extending  further,  and,  in 
all  such  cases,  courts  are  bound  to  give  effect  to  his  expressed 
intention.  But  in  the  absence  of  words  showing  such  an  in- 
tention, it  is  not  presumed  that  the  grantor  intended  to  retain 
in  himself  the  fee  to  the  street  or  stream  when  he  has  parted 

Tomlin  V.   Dubuque  etc.   R.   R.  pie,  5  Wend.  423;  Mayhew  v.  Nor- 

Co.,  32  Iowa,  106,  7  Am.  Rep.  176;  ton,  17  Pick.  357,  28  Am.  Dec.  300; 

Middleton    v.    Pritchard,    3    Scam.  Barney  v.  City  of  Keokuk,  4  Cent 

520,  38  Am.   Dec.   112;   Adams   v.  L.  J.  491. 

Pease,   2   Conn.   481;    McManus   v.  *  Chapman    v.    Kimball,    9    Conn, 

Carmichael,  3   Iowa,   1;    Haight  v.  38,  21  Am.  Dec.  707. 

The  City  of  Keokuk,  4  Iowa,  199;  ^  See  term  "Navigable,"  Bouvicr 

Canal  Commissioners  v.  The  Peo-  Law.  Diet 


CHAP.    XXIX.] 


DESCRIPTION. 


1987 


with  the  adjoining  land.  Therefore  it  may  be  said  to  be  a 
universal  rule,  that  a  deed  giving  a  stream  as  a  boundary 
will  convey  title  to  the  center  of  the  stream  or  to  low  or 
high  water  mark,  depending  upon  how  far  the  grantor's 
title  extends.  By  such  a  description  the  grantor  will  convey 
all  that  he  owns,  unless  a  contrary  intent  appears  from  the 
language  of  the  deed.^  The  deed  is  taken  most  strongly 
against  the  grantor  in  the  application  of  this  rule,  and  courts 
will  not  favor  the  presumption  that  he  has  retained  title  to 
the  bed  of  the  stream.^  Where  title  passes  to  the  thread  of 
the  stream,  it  will  include  an  island  lying  between  the  thread 
of  the  stream  and  the  land  abutting  the  stream.^  So  islands 
are  included  which  are  separated  from  the  mainland  by 
sloughs.*  A  water  line  given  as  the  boundary  of  a  lot  re- 
mains the  boundary,  however  it  may  shift,  and  land  up  to 
such  shifting  water  line  is  conveyed  by  a  deed  describing  the 
lot  by  its  number.     When  accretion  occurs,  the  water  line 


1  Norcross  v.  Griffiths,  65  Wis. 
610;  Chandos  v.  Mack,  11  Wis. 
573,  10  L.R.A.  207,  20  Am.  St  Rep. 
139;  Moody  v.  Palmer,  50  Cal. 
31 ;  Williamsburgh  Boom  Co.  v. 
Smith,  84  Ky.  375;  Watson  v. 
Peters,  26  Mich.  508;  McCullough 
V.  Wall,  4  Rich.  68,  53  Am.  Dec. 
715;  Morrison  v.  Keen,  3  Greenl. 
474;  Sleeper  v.  Laconia,  60  N.  H. 
201,  49  Am.  Rep.  311;  Brown  Oil 
Co.  V.  Caldwell,  35  W.  Va.  95,  29 
Am.  St.  Rep.  793;  Middleton  v. 
Pritchard,  3  Scam.  510,  38  Am.  Dec. 
112;  Boston  v.  Richardson,  105 
Mass.  351;  Doane  v.  Willicutt,  5 
Gray,  328;  Mayhew  v.  Norton,  17 
Pick.  359,  28  Am.  Dec.  300;  Lam- 
pish  V.  Bangor  Bank,  8  Greenl.  85; 
Winslow  V.  Patten,  34  Me.  25; 
Chapman  v.  Edmands,  3  Allen,  512; 
Berry  y.   Snyder,  3   Bush,  266,  96 


Am.  Dec.  219;  Lowell  v.  Robinson, 
16  Me.  357,  Z7>  Am.  Dec.  671 ;  Har- 
low V.  Fisk,  12  Cush.  304;  Williams 
V.  Buchanan,  1  Ired.  535,  35  Am. 
Dec.  760;  Warren  v.  Thomaston, 
75  Me.  329,  46  Am.  Rep.  397 ;  Oakcs 
V.  De  Lancey,  133  N.  Y.  227,  28 
Am.  St.  Rep.  628;  Dunlap  v.  Stet- 
son, 4  Mason,  336 ;  Moore  v.  Griffin, 
22  Me.  350;  Thomas  v.  Hatch,  3 
Sum.  178;  Brown  v.  Hager,  21 
How.  306,  16  L.  ed.  125. 

2  Palmer  v.  Farrell,  129  Pa.  St. 
162,  15  Am.  St.  Rep.  708;  Brown 
Oil  Co.  V.  Caldwell,  35  W.  Va.  95, 
29  Am.  St.  Rep.  793;  Holden  v. 
Chandler,  61   Vt.  291. 

3  Chandos  v.  Mack,  11  Wis.  573, 
10  L.R.A.  207,  20  Am.  St.  Rep. 
139. 

4  Fuller  V.  Dauphin,  124  111.  542, 
7  Am.  St.  Rep.  38& 


1988  THE  LAW  OF  DEEDS.  [CHAP.    XXIX. 


continues  to  be  the  boundary  when  named  as  such,  and  a 
deed  passes  title  to  all  land  extending  to  the  water  line.* 
Where  land  is  described  as  beginning  on  the  west  bank  of 
the  creek,  "thence  follow  said  west  bank  on  a  general  course 
of  north,  four  degrees  twenty-four  minutes  west,"  the  grantee 
takes  the  land  to  the  margin  of  the  creek  at  low-water  mark, 
notwithstanding  a  survey  of  the  land  by  courses  and  dis- 
tances, set  out  in  the  deed,  would  not  extend  the  line  to  the 
creek.  The  creek  is  a  natural  monument,  and  will  prevail 
over  the  courses  and  distances.* 

§  1028b.  Presumption  overcome  only  by  actual  res- 
ervation.— The  presumption  mentioned  in  the  preceding 
section  can  be  overcome  only  by  an  actual  reservation  in 
the  deed,  or  by  facts  evincing  an  intention  to  limit  the  land 
conveyed  to  the  precise  boundaries  of  the  description.  Hence, 
if  a  grantor  describes  lands  by  metes  and  bounds,  which  in- 
clude the  whole  of  the  bank  of  the  stream,  extending  the 
whole  distance  of  the  part  conveyed,  the  presumption  is  that 
he  intended  to  convey  all  his  interest  in  the  bed  of  the  stream, 
lying  in  front  of  the  land  conveyed,  although  no  reference 
is  made  to  the  stream."     But  where  a  description  in  a  statute 

6  Jeffries    v.    East    Omaha    Land  serious     consequences     when     not 

Co.,   134  U.  S.   178,  33  L.  ed.  872.  rigidly    adhered    to,    and    its    chief 

6  Yates  V.  Van  de  Bogert,  56  N.  object   is  to   prevent   the   existence 

Y.  526.  of  innumerable  strips  and  gores  of 

'  Norcross    v.    Griffiths,    65    Wis.  land  along  the  margins  of  streams 

599,  56  Am.   Rep.  642.     The  court  and  highways,  to  which  the  title  for 

states  the  reasons  for  this  rule  in  generations    shall    remain    in   abey- 

the    language    of    Justice    Redfield  ance,  and  then,  upon  the  happening 

in  the  case  of  Buck  v.  Squires,  22  of  some  unexpected  event,  and  one 

Vt.  484,  494 :     "The  rule  itself   is  consequently  not  in  express  terms 

mainly  one  of  policy,  and  one  which  provided   for  in  the  title  deeds,  a 

to    the    unprofessional    might    not  bootless,    almost    objectless,    litiga- 

seem  of   the  first   importance;  but  tion    shall    spring    up    to    vex    and 

it  is,  at  the  same  time,  one  which  harass    those    who,    in   good    faith, 

the     American     courts,     especially,  had     supposed     themselves     secure 

have  regarded  as  attended  with  very  from    such    embarrassment     It  is, 


CHAP.    XXIX.] 


DESCRIPTION. 


1989 


is  "to  the  channel  of  George's  river,  thence  down  said  channel 
till  it  intersects  the  town  line,  where  it  crosses  the  George's 
river" — the  boundary  line  is  the  thread  of  the  channel.  "The 
channel,"  said  the  court,  "is  the  deepest  part  of  the  river. 
It  is  the  navigable  part — the  water-road  over  which  vessels 
pass  and  repass.  It  is  the  highway  of  commerce.  Had  the 
line  run  to  the  river  and  down  the  river,  the  boundary  would 
have  been  the  bed  of  tlie  stream — the  filum  aqiice.     But  the 


as  I  understand  the  law,  to  prevent 
the  occurrance  of  just  such  con- 
tingencies as  these,  that  in  the  lead- 
ing, best  reasoned,  and  best  con- 
sidered cases  upon  the  subject,  it 
is  laid  down  and  fully  established 
that  courts  will  always  extend  the 
boundaries  of  land,  deeded  as  ex- 
tending to  and  along  the  sides  of 
highways  and  fresh  water  streams 
not  navigable,  to  the  middle  of 
such  streams  and  highways,  if  it 
can  be  done  without  manifest  vio- 
lence to  the  words  used  in  the  con- 
veyance, and  to  have  this  rule  of 
the  least  practical  importance  to 
cure  the  evil  which  it  is  adopted  to 
remedy,  it  must  be  applied  to  every 
case  where  there  is  not  expressed 
an  evident  and  manifest  intention 
to  the  contrary — one  from  which 
no  rational  construction  can  escape. 
The  rule,  to  be  of  any  practical 
utility,  must  be  pushed  somewhat 
to  the  extreme  of  ordinary  rules 
of  construction,  so  as  to  apply  to 
all  cases,  when  there  is  not  a  clear- 
ly expressed  intention  in  the  deed 
to  limit  the  conveyance  short  of 
the  middle  of  the  stream  or  high- 
way. If  it  is  only  to  be  applied  like 
the  ordinary  rules  of  construction 
as  to  boundary,  so  as  to  reach  as 
far  as  may  be  the  clearly  formed 


idea  in  the  mind  of  the  grantor  at 
the  time  of  executing  the  deed,  it 
will  ordinarily  be  of  no  utility  as 
a  rule  of  expediency  or  policy;  for 
in  ninety-nine  cases  in  every  hun- 
dred the  parties  at  the  time  of  the 
conveyance  do  not  esteem  the  land 
covered  by  the  highway  of  any  im- 
portance either  way;  hence  they 
use  words  naturally  descriptive  of 
the  prominent  ideas  in  their  minds 
at  the  time,  and  in  doing  so  define 
the  line  which  it  is  expected  the 
party  will  occupy  and  improve." 
See,  also,  Jones  v.  Pettibone,  2  Wis. 
308;  Yates  v.  Judd,  20  Wis.  425; 
Walker  v.  Shepardson,  4  Wis.  486, 
65  Am.  Dec.  324;  Ford  v.  C.  & 
N.  W.  R.  Co.,  14  Wis.  609,  80  Am. 
Dec.  791 ;  Kimball  v.  Kenosha,  4 
Wis.  321 ;  Gove  v.  White,  20  Wis. 
425;  Wisconsin  R.  Imp.  Co.  v. 
Lyons,  30  Wis.  61 ;  Wright  v.  Day, 
33  Wis.  260;  Pettibone  v.  Hamilton, 
40  Wis.  402;  Kneeland  v.  Van  Val- 
kenburgh,  46  Wis.  427,  32  Am.  Rep. 
719;  Smith  v.  Ford,  48  Wis.  163; 
Valley  P.  &  P.  Co.  v.  West,  58  Wis. 
599;  Mariner  v.  Schulte,  13  Wis. 
692;  Elson  v.  Merrill,  42  Wis.  203; 
Boorman  v.  Sunnuchs,  42  Wis.  233 ; 
Young  V.  Harrison,  6  Ga.  130;  Ar- 
nold V.  Elmore,  16  Wis.  509 ;  Moses 
v.  Eagle  &  P.  Mfg.  Co.,  62  Ga.  455. 


1990  THE  LAW  OF  DEEDS.  [CHAP.    XXIX. 

thread  of  a  stream  is  the  middle  line  between  the  shores,  ir- 
respective of  the  depth  of  the  channel,  taking  it  in  the  natural 
and  ordinary  stage  of  the  water.  The  channel  and  the  thread 
of  the  river  are  entirely  different.  The  channel  may  be  one 
side  of  the  thread  of  the  river  or  the  other."  '  Where  a  city 
is  divided  into  lots  and  the  lots  are  conveyed  by  numbers,  a 
deed  of  those  lying  along  a  stream  will  carry  the  grantor's 
title  to  the  land  lying  between  the  lot  and  the  thread  of  the 
stream.^  But  if  a  deed  conveying  a  specified  number  of 
acres  of  a  block  adjoining  a  street  transfers  title  to  the  center 
of  the  street,  it  is  not  a  necessary  conclusion  that  this  number 
'  of  acres  is  to  be  estimated  by  extending  the  line  to  the  center 
of  the  street.  If  the  blocks  are  uniform  in  size,  as  four-acre 
blocks,  for  instance,  and  a  deed  describing  them  as  sucli 
conveys  the  north  two  acres  of  a  block,  it  practically  conveys 
the  north  half  of  the  block,  excluding  the  street,  and  especially 
so  if  the  de«d  describes  a  right  of  way  over  another  portion 
of  the  same  block.^ 

§  1029.  Courses  and  distances  controlled  by  monu- 
ments.— If  there  is  a  conflict  between  them,  the  courses 
and  distances  given  in  the  description  must  yield  to  the  monu- 
ments.^    "It  is  a  general  principle,"  says  Chief  Justice  Mar- 

8  Warren  v.  Thomaston,  75  Me.  mark :  Stevens  v.  King,  Id  Me.  197, 
329,  46  Am.  Rep.  397.  The  thread  49  Am.  Rep.  609;  Child  v.  Starr, 
of  the  stream  is  a  line  equally  dis-  4  Hill.  369.  A  deed,  on  the  other 
tant  from  the  two  banks  at  the  hand,  giving  a  boundary  as  "run- 
ordinary  stage  of  the  water:  Bos-  ning  to  the  river,  and  thence  on  the 
cawen  v.  Canterbury,  23  N.  H.  188 ;  river  shore"  was  held  to  convey 
Hopkins  v.  Dickinson,  9  Cush.  552.  land  to  the  center  of  the  stream : 

9  Mariner  v.  Schulte,  13  Wis.  775 ;  Sleeper  v.  Laconia,  60  N.  H.  201, 
Watson  v.  Peters,  26  Mich.  508;  49  Am.  Rep.  311.  And  see  Starr 
Trustees  v.  Haven,  11  111.  554.  v.  Child,  20  Wend.  149;  Woodman 
Where  the  word  "shore"  is  used  as  v.  Spencer,  54  N.  H.  507 ;  Low  v. 
a  boundary,  the  decisions  are  not  Tibbitts,  72  Me.  92,  39  Am.  Rep. 
uniform   as  to  the  construction  to  303. 

be  given  to  it.     By  some  decisions  ^  Fraser  v.  Ott,  95  Cal.  661. 

the    grantee    takes    to    low-water  2  TurnbuU  v.  Schroeder,  29  Mina 


Chap,  xxix. 


DESCRIPTION. 


1991 


shall,  "that  the  course  and  distance  must  yield  to  natural  ob- 
jects called  for  in  the  patent.  All  lands  are  supposed  to  be 
actually  surveyed,  and  the  intention  of  the  grant  is  to  convey 


49;  Watson  v.  Jones,  85  Pa.  St. 
117;  Burkholder  v.  Markley,  98  Pa. 
St.  37;  Ayers  v.  Watson,  113  U. 
S.  594,  28  L.  ed.  1093 ;  Ellis  v.  Hun- 
nicutt,  7r Ga.  637;  Hurley  v.  Mor- 
gan, 1  Dev.  &  B.  425,  28  Am. 
Dec.  579;  Hall  v.  Powel,  4  Serg. 
&  R.  456,  8  Am.  Dec.  722;  Ripley 
V.  Berry,  5  Greene,  24,  17  Am.  Dec. 
201;  Den  v.  Graham,  1  Dev.  &  B. 
76,  27  Am.  Dec.  226;  Davis  v. 
Rainsford,  17  Mass.  207;  Adams  v. 
Alkire,  20  W.  Va.  480;  Daggett  v. 
Willey,  6  Fla.  482;  Welder  v.  Hunt, 
34  Tex.  44;  Credle  v.  Hays,  88  N. 
C  321;  Coles  v.  Wooding,  2  Pat. 
&  H.  189;  Beaudry  v.  Doyle,  8 
West  C.  Rep.  299;  Lewis  v.  Lewis, 
4  Or.  177;  Bolton  v.  Eggleston,  61 
Iowa,  163 ;  Simonton  v.  Thompson, 
55  Ind.  87;  Benton  v.  Horsley,  71 
Ga.  619 ;  Brown  v.  Huger,  21  How. 
305,  16  L.  ed.  125;  Woodward  v. 
Nims,  130  Mass.  70;  Kronneberger 
v.  Hoffner,  44  Mo.  185;  Haynes  v. 
Young,  36  Mo.  557 ;  Hogans  v.  Car- 
ruth,  19  Fla.  84 ;  Evansville  v.  Page, 
23  Ind.  527;  Keenan  v.  Cavanaugh, 
44  Vt.  268;  Carville  v.  Hutchins, 
7Z  Me.  227;  Cottingham  v.  Parr, 
93  111.  233;  Kellogg  v.  Mullen,  45 
Mo.  571 ;  Walsh  v.  Hill,  38  Cal.  481 ; 
Morse  v.  Rogers,  118  Mass.  572; 
Norfolk  Trust  Co.  v.  Foster,  78  Va. 
413;  West  v.  Shaw,  67  N.  C.  494; 
Husbands  v.  Semples,  13  Mo.  App. 
Marsh  v.  Mitchell,  25  Wis.  706; 
589;  Thompson  v.  Wilcox,  7  Lans. 
376 ;  Park  v.  Pratt,  38  Vt.  552 ;  Rid- 
dlesburg  etc.  Coal  Co.  v.  Rogers,  65 
Pa.    St.   416;    Tyler   v.    Fickett,   72 


Me.  410;  C'mningham  v.  Curtis,  57 
N.  H.  157;  Winans  v.  Cheney,  55 
Cal.  567;  Howe  v.  Bass,  2  Mass. 
380,  3  Am.  Dec.  59;  Lodge  v.  Bar- 
nett,  46  Pa.  St.  477;  Wendell  v. 
Jackson,  8  Wend.  183,  22  Am.  Dec. 
635;  Brand  v.  Daunoy,  8  Martin, 
N.  S.  159,  19  Am.  Dec.  176;  Frost 
V.  Spaulding,  19  Pick.  445,  31  Am. 
Dec.  150;  McPherson  v.  Foster,  4 
Wash.  C.  C.  45 ;  Harris  v.  Hull,  70 
Ga.  831;  Cilley  v.  Childs,  7Z  Me. 
130 ;  Glamorgan  v.  Baden  etc.  R.  R, 
Co.,  72  Mo.  139;  Sanborn  v.  Rice, 
129  Mass.  387;  Cudney  v.  Early,  4 
Paige,  209;  Piercy  v.  Crandall,  34 
Cal.  334;  Smith  v.  McAllister,  14 
Barb.  434;  Bosworth  v.  Sturtevant, 
2  Gush.  392;  Town  v.  Needham,  3 
Paige,  546,  24  Am.  Dec.  246 ;  Urqu- 
hart  V.  Burleson,  6  Tex.  502;  Gav- 
ery  v.  Hinton,  2  Greene,  344;  Peo- 
ple V.  Law,  34  Barb.  494,  22  How. 
Pr.  109;  Nivin  v.  Stevens,  5  Har. 
(Del.)  272;  Mitchell  v.  Burdett,  22 
Tex.  633 ;  Franklin  v.  Dorland,  28 
Cal.  175,  87  Am.  Dec.  Ill;  Miller 
v.  Beeler,  25  111.  163 ;  Newman  v. 
Foster,  4  Miss.  (3  How.)  383,  34 
Am.  Dec.  98;  Colton  v.  Seavey,  22 
Cal.  496;  Clark  v.  Wethey,  19 
Wend.  157;  Nelson  v.  Hall,  1  Mc- 
lowa,  249;  Woods  v.  Kennedy,  5 
Mon.  174;  Van  Wyck  v.  Wright.  18 
eWnd.  157;  Nelson  v.  Hall,  1  Mc- 
Lean, 518;  Nichols  v.  Turney,  IS 
Conn.  101 ;  Campbell  v.  Clark,  8 
Mo.  553;  Cleaveland  v.  Smith,  2 
Story,  278;  Smith  v.  Dodge,  2  N. 
H.  303;  Sumter  v.  Bracey,  2  Bay, 
515;  Massengill  v.  Boyles,  4  Humph. 


1992  THE  LAW   OF  DEEDS.  [CHAP.    XXIX. 

the  land  according  to  that  actual  survey;  consequently,  if 
marked  trees  and  marked  corners  be  found  conformably  to 
the  calls  of  the  patent,  or  if  watercourses  be  called  for  in  the 
patent,  or  mountains,  or  any  other  natural  objects,  distances 
must  be  lengthened  or  shortened,  and  courses  varied,  so  as  to 
conform  to  those  objects.  The  reason  of  the  rule  is,  that  it  is 
the  intention  of  the  grant  to  convey  the  land  actually  surveyed, 
and  mistakes  in  courses  and  distances  are  more  probable  and 
more  frequent  than  in  marked  trees,  mountains,  rivers,  or 
other  natural  objects  capable  of  being  clearly  designated  and 
accurately  described."  ^  An  action  was  brought  for  a  breach 
of  covenant  of  warranty  in  a  deed,  which  described  the  land 
conveyed  as  bounded  on  the  west  by  the  land  of  a  certain 
person.  The  distance  on  the  north  line  from  the  east  to 
the  west  end,  as  specified  in  the  deed,  extended  seventeen  feet 
beyond  such  person's  northeast  corner,  and  the  distance  on 
the  south  line  extended  six  and  a  half  feet  beyond  such  per- 
son's southeast  corner,  so  that  by  measurement  the  deed  in- 
cluded a  strip  seventeen  feet  wide  at  the  north  end,  and  six 
and  a  half  feet  at  the  south  end,  and  this  strip  was  at  the  time 
of  the  execution  of  the  deed  in  the  possession  of  such  third 
person,  and  was  separated  from  the  land  owned  by  the  grantor 
by  a  shed  and  a  division  fence.     It  was  held  that  the  shed 

205;  Call  v.  Barker,  12  Me.  (3  Co.,  108  Cal.  38.  See,  also,  Powers 
Fairf.)  320;  Robinson  v.  White,  v.  Orville  Bank,  136  Cal.  486,  69 
42  Me.  209;  McGill  v.  Somers,  15  Pac.  151;  Kendrick  v.  Burchette 
Mo.  80;  Funa  v.  Manning,  11  (Ky.)  89  S.  W.  239. 
Humph.  311;  Pernam  v.  Wead,  6  3  Mclver's  Lessee  v.  Walker,  9 
Mass.  131 ;  Aiken  v.  Sanf ord,  5  Cranch,  173,  177,  3  L.  ed.  694,  696. 
Mass.  494;  Gerrish  v.  Bearce,  11  As  to  measurement  of  land  bound- 
Mass.  193;  Jackson  v.  Camp,  1  ed  on  one  side  by  a  meandering 
Conn.  605;  Mayhew  v.  Norton,  17  stream,  see  Kimball  v.  Semple,  25 
Pick  357,  28  Am.  Dec.  300.  See  Cal.  440;  Hicks  v.  Coleman,  25  Cal. 
Piercy  v.  Crandall,  34  Cal.  334;  122,  85  Am.  Dec.  103;  Pratt  v. 
Benedict  v.  Gaylord,  11  Conn.  332,  Woodward,  32  Cal.  219.  91  Am. 
29  Am.  Dec.  299 ;  Peay  v.  Briggs,  2  Dec.  573 ;  Spring  v.  Hewston,  52 
Mill.  Const.  98,  12  Am.  Dec.  656;  Cal.  442;  Hall  v.  Shotwell,  66  CaL 
Hostetter   v.   Los    Angeles   T.   Ry.  379. 


CHAP.    XXIX.]  DESCRIPTION.  1993 

and  fence  constituted  monuments  controlling-  the  distances 
in  the  deed,  and  hence  that  there  was  no  breach  of  the  covenant 
of  warranty.*  A  line  was  described  as  running  "thence  zvest- 
erly  including  the  cafiadas  to  a  stake,  so  that  a  line  running 
from  thence  to  the  Dos  Pedros  will  pass  about  two  hundred 
yards  from  the  present  new  corral  of  the  said  Jose  Jesus 
Lopez."  It  was  held  that  the  monuments  should  control,  al- 
though they  determined  the  course  of  the  line  to  be  northeast- 
erly instead  of  westerly.^  Where  a  natural  object  is  one  of 
the  monuments,  and  a  line  does  not  reach  it,  the  line  must  be 
extended  to  such  object,  and  the  distance  given  must  not  be 
considered.'  When  a  call  is  from  one  monument  to  another, 
the  law  will  presume  that  a  straight  line  was  intended.  But 
this  presumption  does  not  arise  where  it  is  evident  from  the 
language  of  the  deed  that  a  different  line  was  intended.'  If 
the  call  in  the  deed  is  from  a  monument  to  a  creek,  without 
specifying  a  definite  point,  the  creek  is  not  to  be  considered 
a  monument  within  the  meaning  of  this  rule.'  Where  the 
former  owner  of  adjacent  lots  erected  houses,  bulkheads  and 
fences,  and  sold  them  when  ready  for  occupancy,  placing  the 
purchasers  in  possession  of  the  respective  lots  as  they  were 
inclosed  and  improved,  the  boundary  lines  as  shown  by  the 

*  Cunningham  v.  Curtis,  57  N.  H.  362;   Bushey  v.   Iron  Co.,   136  Pa. 

157.     And  see,  also,  Smith  v.  Nog-  St.  541 ;  Menasha  etc.  Co.  v.  Law- 

bauer,  42  N.  J.  L.  305;  Crampton  son,    70   Wis.    600.     Although    the 

V.   Prince,  83  Ala.  246,  3  Am.   St.  monuments  were  never  seen  by  the 

Rep.  718;   Andrew  v.   Watkins,  26  parties,  they  control  the  courses  and 

Fla.  390 ;  Cowles  v.  Reavis,  109  N.  •  distances :  Anderson  v.  Richardson, 


C.  417;  Adair  v.  White,  85  Cal.  314 
Northern  Ry.  Co.  v.  Jordan,  87  Cal 
23;  Payne  v.  English,  79  Cal.  540 
Hubbard  v.  Busy,  100  N.  C.  212 
Scott   V.    Pettigrew,   72   Tex.    321 


92  Cal.  623. 

5  Colton  V.  Seavey,  22  Cal.  496. 
Text   Gal.   343. 

6  Strickland  v.  Draughan,  88  N. 
C.  315;  Hogans  v.  Carruth,  19  Fla. 


Jones  V.  Andrews,  72  Tex.  6;  Mc-       84. 


Aninch  v.  Freeman,  69  Tex.  445 
King  V.  Brigham,  19  Or.  560 
Morse  v.  Rollins,  121  Pa.  St.  537 


■^  Fratt    V.    Woodward,    32    Cal. 
219,  91  Am.  Dec.  573. 
8  Fratt  V.  Woodward,  22  Cal.  219, 


Bloom    V.    Ferguson,    128    Pa.    St.      91  Am.  Dec  573. 


1994 


THE   LAW   OF  DEEDS. 


[chap.    XXIX, 


improvements,  constitute  monuments  fixed  by  the  original 
survey  and  measurement  of  the  adjacent  lots  by  the  common 
vendor.  They,  therefore,  fix  the  actual  location  of  the  lines 
upon  the  ground,  and  will  control  the  description  as  given 
by  the  distances  mentioned  in  the  deeds.^  The  best  and 
primary  evidence  of  the  location  of  a  corner  is  the  monument 
established  by  the  United  States  surveyor,  and  will  control 
the  field  notes  or  any  other  class  of  evidence.^  If  the  deed 
shows  no  ambiguity  on  its  face  and  the  calls  are  for  marked 
corners  found  on  the  ground,  but  one  of  the  lines  in  course 
and  distance  does  not  correspond  with  such  corners,  the  line 
should  be  run  straight  between  the  corners.^  It  is  the  duty  of 
the  court,  where  there  is  a  controversy  as  to  a  section  line,  to 
ascertain  if  possible  the  line  as  indicated  by  the  monuments 
established  by  the  government  surveyor.' 


9  Bullard  V.  Kempff,  119  Cal.  9,  50 
Pac,  780.  Natural  and  ascertained 
objects  control  courses  and  dis- 
tances: Resurrection  Gold  Min. 
Co.  V.  Fortune  Gold  Min.  Co.,  129 
Fed.  668,  64  C.  C.  A.  180;  Belding 
V.  Hebbard,  103  Fed.  532,  43  C.  C. 
A.  296;  Hammond  v.  George,  116 
Ga.  792,  43  S.  E.  53;  Leverett  v. 
Bullard,  121  Ga.  534,  49  S.  E.  591 ; 
Bartlett  v.  Rochelle,  68  N.  H.  211, 
44  Atl.  302;  Dows  Real  Estate  & 
Trust  Co.  V.  Emerson,  125  Iowa, 
86,  99  N.  W.  724. 

1  Roads  V.  Stangaer,  41  Wash. 
583,  84  Pac.  405. 

2  Sloan  V.  King,  29  Tex.  Civ.  App. 
599,  69  S.  W.  441. 

3  McGray  v.  Monarch  Elevator 
Co.,  16  S.  D.  109,  91  N.  W.  457. 
See  as  to  other  cases  showing  that 
monuments  and  natural  objects 
prevail  over  courses  and  distances : 
Reusens  v.  Lawson,  91  Va.  226,  21 
S.   E.  347;  VVatkins  v.  King,   118 


Fed.  524,  55C.  C.  A.  290;  Kaiser  v. 
Dalto,  140  Cal.  167,  12>  Pac.  828; 
Whitcomb  v.  Button,  89  Me.  212, 
36  Atl.  67 ;  Richardson  v.  Watts,  94 
Me.  476,  48  Atl.  180 ;  Ayers  v.  Hud- 
dleston,  30  Ind.  App.  242,  66  N.  E. 
60;  Olson  v.  Keith,  162  Mass.  485, 
39  N.  E.  410;  Le  Compte  v.  Lue- 
ders,  90  Mich.  495,  51  N.  W.  542, 
30  Am.  St.  Rep.  450;  Keyser  v. 
Sutherland,  59  Mich.  455,  26  N.  W. 
865;  Woodbury  v.  Venia,  114  Mich. 
251,  72  N.  W.  189;  Brudin  v.  Inglis, 
121  Mich.  410,  80  N.  W.  115;  Gran- 
by  etc.  Co.  v.  Davis,  156  Mo.  422, 
57  N.  W.  126;  Bricken  v.  Cross, 
163  Mo.  449,  64  S.  W.  99;  Patton 
v.  Fox,  179  Mo.  525,  78  S.  W.  804; 
Bowen  v.  Gaylord,  122  N.  C.  816,  29 
S.  E.  340 ;  Hill  v.  Dalton,  140  N.  C 
9,  52  S.  K  273;  Moore  v.  Mc- 
Clain,  141  N.  C.  473,  54  S.  E.  382 ; 
Christenson  v.  Simmons,  47  Or. 
184,  82  Pac.  805 ;  Miller  v.  Cramer, 
190  Pa.  315,  42  Atl.  690;  Mays  v. 


CHAP.    XXIX.] 


DESCRIPTION. 


1995 


§  1029a.     Erroneous  description  in  incident  of  title. — 

It  is  the  duty  of  courts  to  uphold  deeds  when  possible,  and 


Hinchman,  57  W.  Va.  602,  SO  S.  E. 
823.  Where  the  calls  are  conflict- 
ing, those  for  corners  and  lines 
identified  on  the  ground  by  bearing 
trees  will  prevail  over  those  for 
distances :  Cranberry  v.  Storey,  127 
S.  W.  1122.  Monuments  fixed  by  a 
government  survey,  will,  when 
they  can  be  found,  prevail  as  to  the 
location  of  section  corners :  Runkle 
V.  Welty,  86  Neb.  680,  126  N.  W. 
139.  The  reason  that  a  call  for  a 
natural  boundary  will  prevail  over 
one  for  course  and  distance,  is  that 
the  former,  if  fixed,  is  unchange- 
able, and  more  likely  to  be  true : 
Wilson  Lumber  Co.  v.  Hutton,  152 
N.  C.  537,  68  S.  E.  2.  If  however 
the  deed  describes  the  land  by 
courses  and  distances  such  descrip- 
tion will  not  be  afifected  by  monu- 
ments subsequently  erected :  Talbot 
v.  W.  K.  Smith,  Sec.  Sav.  &  T.  Co., 
107  Pac.  480,  108  Pac.  125.  A  de- 
scription by  distinct  and  clear  metes 
and  bounds  enabling  the  easy  as- 
certainment of  the  boundaries  of 
the  tract  conveyed  will  control  any 
general  words  of  description  which 
may  be  added.  Texas  Mexican  Ry. 
Co.  V.  Scott,  129  S.  W.  1170.  The 
priority  to  be  observed  in  the  calls 
in  the  field  notes  should  be  first, 
calls  for  natural  objects;  second, 
calls  for  artificial  objects;  third, 
calls  for  courses ;  fourth,  calls  for 
distance ;  and  as  a  corollary  to  the 
two  last  named,  calls  for  quantity. 
These  are  not  absolute  rules  as 
calls  of  a  lower  owner  may  prevail, 
when  it  appears  that  those  of  a 
higher  owner  were  made  by  mist- 


take :  State  v.  Sulflow,  128  S.  W. 
652.  See,  also.  Turner  v.  Creech, 
108  Pac.  1084;  Bacon  v.  Boston  & 
M.  R.  R.,  83  Vt.  421,  l(i  AtL  128. 
Where  there  is  no  clear  intimation 
to  the  contrary,  the  presumption  is 
that  a  straight  line  is  intended  in 
a  course  or  a  distance  called  for  be- 
tween two  points:  Wright  v.  Hurst, 
127  S.  W.  701.  The  survey  is  con- 
stituted of  marks  on  the  ground 
and  courses  and  distances  consti- 
tute only  evidence:  Andrews  v. 
Wheeler,  10  Cal.  App.  614,  103  Pac. 
144.  The  highest  proof  of  a  bound- 
ary line  is  found  in  the  actual  line 
of  a  survey,  and  monuments,  and 
natural  or  permanent  objects  defi- 
nitely located,  the  next  highest 
proofs  of  this  character  control 
courses  and  distances :  Meeker  v. 
Simmons,  10  Cal.  App.  250,  101  Pac. 
683.  Calls  for  monuments  will  pre- 
vail over  courses  and  distances : 
Stewart  v.  May,  111  Md.  162,  IZ 
Atl.  460.  A  false  or  incorrect  call 
may  be  rejected:  Hubbard  v. 
White,  221  Mo.  672,  121  S.  W.  69. 
The  chief  purpose  is  to  ascertain  the 
true  intent  of  the  parties :  Co-op- 
erative Bldg.  Bank  v.  Hawkins,  30 
R.  I.  171,  n  Atl.  617.  See,  also, 
as  to  courses  and  distances  and 
monuments :  Page  v.  Whatley,  50 
So.  116;  Bell  v.  Redd,  133  Ga.  5,  65 
S.  E.  90;  Bell  v.  Powers,  121  S.  W. 
991;  Guill  v.  O'Bryan,  121  S.  W. 
593;  Bullion  Beck  &  C.  Min.  Co. 
V.  Eureka  Hill  Min.  Co.,  103  Pac. 
881 ;  Grand  Cent.  Min.  Co.  v. 
Mammoth  Min.  Co.,  104  Pac.  573; 
Pilkerton  v.  Roberson,  65  S.  E.  835, 


1996 


THE   LAW   OF  DEEDS. 


[chap.    XXIX. 


where  a  question  arises  as  to  the  sufficiency  of  the  form  of 
the  deed  to  convey  the  land  intended,  the  fact  that  an  incident 
in  the  history  of  the  title  of  the  land  is  erroneously  described 
will  not  prevail  against  the  force  of  metes,  bounds,  courses, 
distances,  and  visible  monuments.  In  the  interpretation  of 
all  contracts,  the  object  is  to  effectuate  the  intention  of  the 
parties.*  Where  the  land  to  be  conveyed  was  described  as 
"all  that  tract  or  upper  island  of  land  called  Eden,"  and  was 
then  described  by  bounds,  courses,  and  distances,  which  did 
not  embrace  all  the  island,  the  court  held  that  the  title  to 
the  whole  island  passed  by  the  deed."*    If  the  land  is  described 


*  Sherwood  v.  Whiting,  54  Conn. 
330,  1  Am.  St.  Rep.  116.  In  that 
case  the  property  intended  to  be 
conveyed  was  described  as  "All  the 
real  estate  of  Oran  Sherwood,  de- 
ceased, which  was  distributed  to 
Franklin  Sherwood  in  the  distribu- 
tion of  said  estate,  and  afterwards 
conveyed  to  me  by  said  Franklin 
Sherwood,  by  sundry  deeds  as  re- 
corded in  Fairfield  land  records." 
As  a  matter  of  fact  Franklin  Sher- 
wood had  conveyed  before  the  dis- 
tribution of  the  estate,  and  not 
afterward,  and  had  made  the  con- 
veyance for  the  purpose  of  conceal- 
ing the  property  from  his  creditors. 
His  deed,  however,  described  fully 
the  land  conveyed.  Suit  was 
brought  to  compel  the  heirs  of  the 
grantor  to  execute  a  corrected  deed, 
but  the  court  held  that  it  required 
no  correction.  If  the  deed  con- 
tains ambiguous  calls  or  those 
which  obviously  are  erroneous,  they 
may  be  rejected  and  the  location 
of  the  land  may  be  determined  by 
the  other  calls.  Hammond  v. 
George,  116  Ga.  792,  43  S.  E.  53; 
Naughton  v.   Elliott,  68  N.  J.  Eq. 


259,  59  Atl.  869;  Fuller  v.  Carr,  23 
N.  J.  L.  157;  Craft  v.  Taylor,  31 
Ky.  Law  Rep.  1349,  105  S.  W.  128; 
Johnson  v.  Bowlware,  149  Mo.  451, 
51  S.  W.  109;  Union  R.  etc.,  Co.  v. 
Skinner,  9  Mo.  App.  189;  Tucker 
v.  Satterhwaite,  123  N.  C.  511, 
31  S.  E.  722;  Albert  v.  Salem,  39 
Or.  466,  65  Pac.  1068,  66  Pac.  233; 
Bleidorn  v.  Pilot  Mountain  Coal, 
etc.  Co.,  89  Tena  166,  15  S.  W. 
737;  Scates  v.  Henderson,  44  S.  C. 
548,  22  S.  E.  724;  Matheny  v.  Al- 
len, 63  W.  Va.  443,  60  S.  E.  407. 

6  Lodge  V.  Lee,  6  Cranch,  237,  3 
L.  ed.  210.  See,  for  further  in- 
stances, Worthington  v.  Hilyer,  4 
Mass.  196;  Jackson  v.  Barringer,  15 
Johns.  471 ;  Melvin  v.  Proprietors,  5 
Met.  15,  38  Am.  Dec.  384;  Cate  v. 
Thayer,  3  Me.  71;  Keith  v.  Rey- 
nolds, 3  Me.  393.  The  owner  of  a 
farm  conveyed  it  by  deed,  which 
described  it  as  "the  farm  on  which 
I  now  live,  and  is  the  same  which 
was  deeded  to  me  by  J.  G.,  March 
15,  1810,  reference  being  had  to  said 
deed.  The  deed  of  March  15,  1810, 
did  not  include  a  lot  of  land  which 
had  formed  part  of  the  fann  for 


CHAP.    XXIX.]  DESCRIPTION.  1997 

as  a  'liomestead  farm,"  with  a  designation  of  the  number  of 
acres,  the  whole  parcel  will  pass,  although  it  contains  twice 
the  number  of  acres  mentioned.*  So  parties  in  making  a 
conveyance  are  presumed  to  make  it  with  reference  to  the 
state  or  condition  of  the  premises  at  the  time,  and,  if  the 
description  be  sufficient  when  made,  no  subsequent  changes  in 
conditions  can  make  it  invalid.' 

§  1030.  When  courses  and  distances  prevail. — Where 
the  monument  described  in  the  deed  cannot  be  found,  and 
neither  its  location  nor  existence  can  be  proven,  the  location 
of  the  land  must  be  determined  by  the  other  parts  of  the 
description.  If  the  land  is  described  by  definite  and  distinct 
boundaries  from  which  it  may  be  located,  the  description  can- 
not be  varied  or  controlled  by  parol  evidence.^  If  one  of  the 
lines  is  described  as  running  a  certain  number  of  rods  to  a 
stake  and  stones,  and  there  is  no  such  monument,  the  end  of 
the  line,  in  the  absence  of  evidence  that  there  was  a  contrary 
intent,  is  to  be  determined  by  the  measurement.^  Where  the 
deed  shows  an  intention  to  convey  a  specific  quantity  of  land, 
and  this  exact  quantity  is  included  within  the  courses  and 
distances,  and  the  description  by  monuments  embraces  a  larger 
or  smaller  quantity,  the  former  description  will  prevail.^ 
When  the  deed  would  be  defeated  by  applying  the  rule  that 
monuments  control  courses  and  distances,  and  when  the  re- 
forty  years,  but  it  had  been  con-  v.  Hewitt,  55  Wis.  96,  42  Am.  Rep. 
veyed  to  the  grantor  by  J.   G.  by       701. 

a  deed  dated  January  11,  1810,  and  "^  Sengf  elder    v.    Hill,    21    Wash, 

the   court   held   that   this    lot    was       371,  58  Pac.  250. 
conveyed  by  the  deed :  Hastings  v.  ^  Drew  v.   Swift,  46  N.   Y.  204 ; 

Hastings,    110    Mass.    280.  Bagley  v.  Morrill,  46  Vt.  94. 

6  Andrews  v.  Pearson,  68  Me,  19.  » Wilson  v.   Hildreth,   118  Mass. 

See,    also,    Dwight    v.    Tyler,    49      578. 

Mich.    614 ;    Wiley    v.    Lovely,    46  ^  Higinbotham  v.  Stoddard,  72  N. 

Mich.  83;  Deacons  etc  v.  Walker,       Y.   94;    Buffalo  etc.   R.   R.   Co.  v. 
124  Mass.  69;  Union  etc.  v.  Skin-       Stigeler,  61  N.  Y.  348. 
ner,  9  Mo.  App.  189;  Green  Bay  etc 


1998  THE  LAW  OF  DEEDS.  [CHAP.    XXIX. 

jection  of  a  call  for  a  monument  will  reconcile  other  parts 
of  the  description  and  leave  sufficient  to  identify  the  land, 
the  rule  as  to  monuments  will  not  be  enforced.^  Where  no 
monuments  are  referred  to  in  the  deed,  and  none  are  intended 
to  be  erected,  the  distances  stated  in  the  description  must 
govern  the  location.^  The  rule  that  courses  and  distances 
are  controlled  by  natural  objects  will  not  be  applied  where  it 
appears  that  the  natural  object  is  variable  in  its  position.*  Nor 
does  the  rule  prevail  when  the  calls  for  monuments  are  false 
or  mistaken.  Thus  if  it  appears  that  the  larger  portion 
of  the  boundary  of  a  grant  containing  a  large  quantity  of 
land  was  not  run  on  the  ground  but  was  platted  in  and  that 
the  surveyor,  either  mistook  or  did  not  know  the  true  location 
of  the  boundaries  called  for,  and,  that,  if  the  boundaries  were 
to  be  determined  by  the  monuments  as  located,  the  grant 
would  contain  but  a  trifle  over  one  fifth  of  the  acreage,  while 
as  platted,  running  the  lines  according  to  courses  and  dis- 
tances, it  would  contain  the  acreage  called  for  by  the  grant, 
the  courses  and  distances,  must  govern.*  The  distances  stated 
in  a  deed,  cannot  be  controlled  by  fences  to  which  the  deed 
does  not  refer.®  If  the  survey  was  not  made  on  the  ground 
but  was  copied  from  other  surveys,  the  rule  that  courses 
and  distances  yield  to  marked  trees  and  lines  when  found  on 
the  ground,  has  no  application.'^  If  by  allowing  monuments 
to  control  courses  and  distances,  an  absurdity  would  result,  or 

8  White  V.  Luning,  93  U.  S.  514,  I\Ie.  32;  Bradford  v.  Hill,  1  Hayw. 

23  L.  ed.  938.  (N.    C.)     22,     1    Am.    Dec.    546; 

3  Negbauer  v.  Smith,  44  N.  J.  L.  O'Hara  v.  OBrien,  107  Cal.  309. 
672.    And  see  Winans  v.  Cheney,  55  *  Smith  v.  Hutchinson,  104  Tenn. 
Cal.   567.     For  a  case  in  wliich   a  394,  58  S.  W.  226. 
monument    was    considered    as    de-  ^  King  v.   Watkins,  98  Fed.  913. 
scriptive   only,    and   that    it    should  ^  Kasliman  v.   Parsons,  70  Conn- 
not  receive  undue  prominence,  see  295,  39  Atl.  179. 
Jones  V.  Bunker,  83  N.  C.  324.    Sec,  '  Bell    v.    Preston,    19   Tex.    Civ. 
also,  Loring  v.   Norton,  8  Me.   (8  App.  375,  47  S.  W.  375,  753.     For 
Greenl.)  61 ;  Preston  v.  Bowmar,  2  other   cases   in    which   courses   and 
Bibb,  493;   Hamilton  v.   Foster,  45  distances  control:  See  Resurrection 


9 


CHAP.    XXIX.]  DESCRIPTION.  1999 

if  the  monuments  are  inconsistent  with  a  proper  construc- 
tion of  the  deed,  they  do  not  control.  If  the  calls  for  the 
monuments  are  merely  incidental,  courses  and  distances  con- 
trol. As  said  by  Mr.  Justice  Burnett:  "A  monument  or 
natural  object  is  of  importance  only  when  clearly  identified. 
It  is  manifestly  of  no  value  as  an  aid  to  the  intention  of  the 
parties  when  its  identity  cannot  be  determined."  ' 

§  1031.     Latent  ambiguity  as  to  monument  intended. 

— There  may  be  cases  where  there  is  a  latent  ambiguity  as 
to  the  monument  intended  by  the  parties.  The  monument, 
if  it  can  be  ascertained,  must  control.  But  when  a  latent 
ambiguity  exists  as  to  its  location,  courses  and  distances, 
and  the  estimated  quantity  of  the  land,  are  entitled  to  some 
weight  in  determining  what  the  intention  of  the  parties  was 
Where  a  grantor  executes  on  the  same  day  two  deeds  of 
contiguous  lots  of  land,  by  the  course  and  distance  calls  of 
which  the  lots  overlap  each  other,  a  common  boundary  line 
is  not  established.     The  party  who  is  in  possession  to  the 

Gold    Min.    Co.    v.    Fortune    Gold  126  N.  C.  265,  35  S.  E.  466;  Echerd 

Min.  Co.,  129  Fed.  668,  64  C.  C.  A.  v.  Johnson,  126  N.  C.  409,  35  S.  H 

180;  Ulman  v.  Clark,  100  Fed.  180;  1036;  Elliott  v.  Jefferson,  133  N.  C 

Security   Land    etc.    Co.    v.    Burns,  207,  64  L.R.A.    135,  45   S.   E.  558; 

193  U.  S.  167,  48  L.  ed.  662,  24  S.  Pohlman  v.  Lohmeyer,  60  Neb.  364, 

Ct.  425,  affirming  87   Minn.  97,  63  83  N.  W.  201 ;  Whitaker  v.  Cover! 

L.R.A.  157,  94  Am.  St.  Rep.  684,  91  140  N.  C.  280,  52  S.  E.  581;  Mont- 

N.  W.  304;  Deaver  v.  Jones,  119  N.  gomery  v.  Lipscomb,  105  Tenn.  144, 

C.  598,  26  S.  E.  156;  Taylor  v.  Mc-  58  S.  W.  306;  Matthews  v.  Thatch- 

Conigle,  120  Cat.  123,  52  Pac.  129 ;  er,  33  Tex.  Civ.  App.  133,  76  S.  W. 

Seeders  v.  Shaw,  200  111.  93,  65  N.  61 ;  Missouri  etc.  Ry.  Co.  v.  Ander- 

E.    643;    Palmer    v.    Osborne,    115  son,  36  Tex.  Civ.  App.  121,  81  S.  W. 

Iowa,  714,  87  N.  W.  712;  Whitridge  781;     Mclrwin    v.     Charlebois,    38 

V.  City  of  Baltimore,  103  Md.  412,  Wash.    151,  80  Pac.  285. 
63  Atl.  808;   Sherwin  v.  Bitzer,  97  8  Qoss  v.  Golinsky,  12  Cal.  App. 

Minn.  252,  106  N.  W.  1046;  White-  71,   106  Pac.  604.     See,  also,  Beall 

head  v.  Atchison,  136  Mo.  485,  37  v.  Weir,  11  Cal.  App.  364,  105  Pac 

S.  W.  928;   Mires  v.  Summerville,  133. 
85  Mo.  App.  138;  Muse  v.  Caddell,  9Doe  v.  Vallejo,  29  Cal.  385. 


2000 


THE  LAW  OF  DEEDS. 


[chap.    XXIX. 


extent  warranted  by  the  calls  of  his  deed  cannot  be  ousted 
by  the  calls  of  the  other  deed.^ 

§  1031a.  Supplying  omissions. — Omissions  may  be 
sometimes  supplied  so  as  to  cure  an  imperfect  description 
in  a  deed,  if  the  instrument  contains,  in  other  respects,  suf- 
ficient facts  to  enable  this  to  be  done.  For  instance,  the 
word  "of"  was  supplied  in  a  description,  reading,  "the  north 
half  of  the  southwest  quarter  the  southwest  quarter"  of  a 
certain  section,  when  the  call  for  quantity  supported  this 
construction.^  Where  a  call  is  "east  with"  it  may  be  con- 
strued to  mean  "east  parallel  with."  "When  the  deed,"  says 
Mr.  Justice  Black,  "applied  to  the  subject  matter,  shows  a 
manifest  omission  in  the  description,  and  there  is  sufficient 
data  furnished  by  the  deed  to  supply  the  omission,  the  omis- 
sion will  be  supplied  by  construction."  ^    Where  the  land  was 


iKeen  v.  Schnedler,  15  Mo.  App. 
590. 

2  Burnett  v.  AlcCluey,  78  Mo.  676. 
Said  the  court:  "The  general  rule 
is,  that  effect  should  be  given,  if 
practicable,  to  every  part  of  the  de- 
scription. The  words  'the  north 
half  of  the  southwest  quarter  the 
southwest  quarter  of  section  6'  cer- 
tainly constitute  a  novel  description. 
It  would  seem  to  be  highly  improb- 
able that  a  grantor  would,  under 
any  circumstances,  first  grant  the 
north  half  of  the  southwest  quarter, 
and  then,  by  words  immediately  fol- 
lowing, grant  the  entire  southwest 
(luarter:  Campbell  v.  Johnson,  44 
Mo.  247.  If  the  description  were 
an  abbreviated  one,  and  stood  thus : 
'N.  1-2,  S.  W.  1-4,  S.  W.  1-4,  sec. 
6,'  few  persons  familiar  with  the 
system  adopted  for  the  survey  and 
subdivision  of  lands  in  the  western 
States,  and  the  abbreviations  in  use 


for  the  designation  of  such  sub- 
divisions, would  hesitate  to  con- 
strue such  description  to  mean  the 
north  half  of  the  southwest  quarter 
of  the  southwest  quarter  of  section 
6.  But  when  such  abbreviated  de- 
scriptions are  translated  into  words, 
it  is  usual  to  insert  both  the  words 
'of  and  'the'  after  the  words  and 
figures  designating  the  subdivi- 
sions." 

3  Deal  V.  Cooper,  94  Mo.  62.  See, 
also.  Wells  v.  Heddenberg,  11  Tex. 
Civ.  App.  3,  30  S.  W.  702.  "De- 
scriptions omitting  town,  county  or 
state  where  the  property  is  situated, 
have  been  held  sufficient  where  the 
deed  or  writing  provides  other 
means  of  identification" :  Holley's 
Exr.  v.  Curry,  58  W.  Va.  70,  58  S. 
E.  135,  112  Am.  St  Rep.  944.  See, 
also.  Black  v.  Mfg.  Co.,  53  Fla.  1090, 
43  So.  919;  Gex  v.  Dill,  86  Miss.  10, 
38  So.  193 ;  Crotty  v.  Effler,  60  W. 


CHAP.    XXIX.]  DESCRIPTION.  2001 

described  as  the  "northwest  quarter  of  the  northwest  section 
8,  T.  29  south,  of  range  16  east,  containing  40  acres,"  the 
words  "quarter  of"  next  preceding  the  word  "section"  in 
the  description  were  suppHed  by  construction  as  an  evident 
omission.*  If  a  deed  omits  one  of  the  calls  in  the  field  notes, 
yet  if,  by  the  description  given,  and  by  reversing  the  calls 
in  the  field  notes,  the  missing  call  can  be  supplied  and  the 
land  to  be  conveyed  ascertained,  the  deed  is  not  void  for 
uncertainty.'  Parol  evidence  may  be  received  for  the  pur- 
pose of  aiding  a  deed  of  this  character.'  Where  it  appeared 
from  the  whole  description  in  a  deed  that  a  certain  block 
was  intended,  a  call  for  the  block  by  an  erroneous  number 
was  held  to  be  properly  rejected.'' 

§  1032.  Subsequent  survey. — Where  the  description 
of  a  deed  gives  as  the  commencing  point  of  the  tract  con- 
veyed a  visible  monument,  which  is  clearly  ascertained,  and 
the  other  parts  of  the  description  are  certain  and  definite, 
every  requirement  of  the  law  as  to  sufficiency  of  description 
is  satisfied,  and  the  title  of  the  grantor  passes  to  the  grantee 
ii  apt  words  of  conveyance  are  used.  If  a  survey  is  sub- 
sequently made  which  changes  the  location  of  a  larger  tract, 
within  which,  according  to  the  language  of  the  deed,  the 
land  conveyed  was  located,  or  if  the  subsequent  survey  re- 
stricts the  area  of  such  tract,  the  title  of  the  grantee  is  not 

Va.  258,  54  S.  E.  345 ;  Garden  City  30  Cal.  467,  there  is  a  discussion  as 

Sand  Co.  v.  Miller,  157  111.  225,  41  to  what  may  be  supplied  by  con- 

N.  E.  753 ;  McCulIough  v.  Olds,  108  struction. 

Cal.  529,  41  P.  420.     See  Hamilton  ^  Montgomery  v.  Carlton,  56  Tex. 

V.  Ogee,  10  Kan.  App.  241,  62  Pac.  431. 

708,  holding  that  a  deed  is  void  for  «  Montgomery  v.  Carlton,  56  Tex. 

uncertainty   which  attempts  to  de-  431 ;  Edwards  v.  Bowden,  99  N.  C. 

scribe   land   by   metes   and  bounds  80,  6  Am.  St.  Rep.  487.     See,  also, 

without     designating     the     section,  §  1015a,  ante. 

township  and  range.  '  Murray  v.  Hobson,  10  Colo.  66, 

4  Campbell    v.    Carruth,    32    Fla.  13  Pac.  921.    In  this  case  block  32 

264,  13  So.  432.     In  Moss  v.  Shear,  was  construed  to  mean  block  30. 
Deeds,  Vol.  11.-126 


2002  THE  LAW  OF  DEEDS.  [CHAP.    XXIX. 

divested  nor  his  rights  impaired.^  If  the  starting  point  of 
a  description  is  the  corner  of  a  subdivision  according  to  the 
survey  made  by  the  United  States,  such  corner  becomes  a 
monument  and  will  control,  notwithstanding  the  grantor,  at 
the  time  of  sale,  by  an  actual  survey  fixed  the  stake  at  an- 
other point,  and  the  lines  were  run  accordingly,®  Where 
the  tract  of  land  conveyed  is  described  only  by  the  name  of 
the  township  or  the  subdivision  of  the  township,  and  such 
tract  is  a  subdivision  according  to  the  United  States  survey, 
the  deed  is  considered  as  referring  to  the  line  of  the  survey 
made  by  the  United  States  and  the  monuments  then  erected.^ 

§  1032a.  Reliance  on  survey. — Where  the  platter  of 
town  lots  has  set  stakes,  purchasers  may  locate  their  lines  ac- 
cordingly, and  such  lines  cannot  be  unsettled  by  a  subsequent 
survey.  Notwithstanding  errors  in  locating  them,  they  must 
control,  and  the  question  is  not  whether  they  were  correctly 
placed,  but  whether  they  were  planted  by  authority,  and, 
relying  on  them,  persons  have  purchased  lots  and  taken  posses- 
sion.^ The  direct  testimony  of  witnesses  who  saw  the  corners 
located  by  the  original  survey,  cannot  be  overcome  by  a  new 
survey  showing  location  of  quarter-section  corners.^  When 
the  lines  were  run  upon  the  ground,  the  survey  as  it  was 
actually  made  may  be  always  shown.*  An  official  survey  will 
overcome  a  private  one.^  For  the  purpose  of  relocating  lost 
corners  by  lines  run  by  an  official  surveyor,  a  private  survey 
of  the  ground,  well-known  marks  and  corners,  and  the  field 

8  Widbur   v.   Washburn,   47   Cal.  ^  Powers  v.  Jackson,  50  Cal.  429. 
67.                                                                   2  Le  Compte  v.  Lueders,  90  Mich, 

9  Powers  V.  Jackson,  50  Cal.  429.       495,  30  Am.  St.  Rep.  450. 

If  the  calls  in  the  description  cor-  '  Mills   v.    Penny,   74   Iowa,    172, 

respond  w  ith  one  another,  they  can-  7  Am.  St.  Rep.  474. 

not  be  varied  by  parol  evidence  to  *  Johnson   v.   Archibald,   78  Tex. 

show  that  they  are  not  the  calls  in  96,  22  Am.  St.  Rep.  27. 

the    survey   as    they    were   actually  ^  Billingsley  v.  Bates,  30  Ala,  376^ 

made :    Johnson    v.    Archibald,    78  68  Am.  Dec  126. 

Tex,  96,  22  Am.  St.  Rep.  27. 


CHAP.    XXIX.]  DESCRIPTION.  2003 

notes  and  plat  may  be  considered,  although  the  private  survey 
does  not  harmonize  in  every  particular  with  the  official  sur- 
vey.^ A  relocation  of  an  original  monument  marking  a  corner 
that  has  been  lost  can  only  be  made  approximately  by  measure- 
ments from  other  comersJ  In  relocating  the  boundaries  of 
a  survey,  topographical  features  of  the  country,  and  of 
a  road,  gulch,  and  houses  described  as  monuments,  will  pre- 
vail over  the  specified  courses  of  the  boundary  lines.'  Where 
the  land  is  described  as  a  legal  subdivision  of  surveyed  land, 
and  the  location  of  the  four  corners  is  reasonably  certain, 
but  the  quarter-section  corners  are  lost,  and  there  are  more 
than  six  hundred  and  forty  acres  within  the  section,  the  division 
lines  of  the  fractions  of  the  section  will  be  determined  by 
a  division  pro  rata  of  the  lines  of  the  section  as  they  appear 
upon  the  ground.' 

§  1033.  Conflict  between  starting  point  and  other 
calls. — When  a  conflict  arises  between  the  starting  point 
and  other  calls,  the  starting  point,  if  it  is  fixed,  certain,  and 
notorious,  will  generally  prevail.  But  if  the  other  calls  may 
as  readily  be  ascertained,  and  are  as  little  liable  to  mistake, 
they  are  entitled  to  as  much  consideration  as  the  first.  If 
they  all  agree,  they  control.^ 

§  1034.  Running  to  line  of  another  tract. — Where  the 
line  of  another  tract  is  called  for  in  the  description  in  a  deed 
as  one  of  the  boundaries  of  the  land  conveyed,  the  line  must 
be  run  to  such  boundary  line  regardless  of  distance.^  And 
this  is  true  even  if   it  be  necessary  to  ascertain  such   line 

6  Billingsley  v.  Bates,  30  Ala.  376,  233 ;    Miller  v.   Topeka   Land   Co., 
68   Am.   Dec.    126.  44  Kan.  354. 

7  Anderson  v.  Peterson,  74  Iowa,  ^  Walsh  v.  Hill,  38  Cal.  481. 
482.  2  Cansler  v.  Fite,  S  Jones  (N.  C), 

STognazzini  v.  Morganti,  84  Cal.       424;  Northrup  v.  Sumney,  27  Barb. 

159.  196;  Whittelsey  v.  Kellogg,  28  Mo. 

^Eshleman   v.    Malter,    101    CaL      404;   Bolton  v.  Lann,  16  Tex.  96. 


2004  THE  LAW  OF  DEEDS.  [CHAP.    XXIX. 

itself  by  course  and  distance.'  Where,  in  the  description,  the 
land  is  bounded  on  one  side  by  the  land  of  a  third  person, 
the  true  boundary  line  between  the  land  conveyed  and  the 
land  of  such  third  person  must  be  tal^en  as  the  boundary 
line,  and  not  the  line  as  it  was  understood  to  exist  at  the 
time  of  the  execution  of  the  deed,  if  there  is  a  variance  be- 
tween such  two  lines.*  Where  one  of  the  boundaries  given 
is  "south  to  A  and  B's  line,"  and  they  have  no  land  in  com- 
mon, the  boundary  line  must  be  run  after  reaching  A's  line 
until  it  comes  to  B's  line.**  A  subsequent  deed  is  not  ad- 
missible in  evidence  for  the  purpose  of  showing  the  boundaries 
of  a  tract  previously  conveyed.®  Where  one  of  the  calls  in 
the  descriptive  clause  is  "thence  running  north  to  the  rear 
of  said"  land,  it  may  simply  indicate  the  direction  of  the 
boundary,  and  does  not  necessarily  mean  that  the  property 
conveyed  is  bounded  by  the  rear  line  of  the  lot  referred  to, 
but  the  work  "to"  may  be  construed  as  "towards."  "^ 

§  1035.  "Northerly,"  "due  north,"  etc. — The  term 
"northerly,"  when  not  controlled  by  monuments  mentioned 
in  the  description,  signifies  due  north.'  The  courses  north, 
south,  east,  and  west  may,  when  controlled  by  other  definite 
and  certain  descriptions,  be  read  northerly,  southerly,  easterly, 

•Cansler  v.  Fite,  5  Jones  (N.  C.)  be  admissible  in  evidence  for  the 

424.  purpose  of  showing  what  lands  the 

*Umbarger  v.   Chaboya,  49   Cal.  grantees  of  the  "McDougal  tract" 

525;  Cornell  v.  Jackson,  9  Met.  150.  supposed,  at  the  time  they  received 

5  Osborne  v.  Anderson,  89  N.  C.  their  conveyance,  were  held  by  the 

261.  owners   of  the  "McKinstry  tract." 

«  Cutter  V.  Caruthers,  48  CaL  178.  "^  Moran  v.  LezoUe,  54  Mich.  83, 

In  this  case,  a  tract  of  land  called  19  N.  W.  757. 

the  "McDougal  tract,"  was  intended  *  Bosworth    v.    Danzien,    25    Cal. 

by  the  parties  to  have  for  its  south-  296;  Brandt  v.  Ogden,  1  Johns.  156; 

em  boundary   another   tract  called  Carrier  v.   Nelson,  96  Cal.  505,  31 

the  "McKinstry  tract."  A  deed  con-  Am.  St  Rep.  239;  Reed  v.  Tacoma 

veying  the  "McKinstry  tract,"  exe-  Building   etc.   Assn.,  2  Wash,    198, 

cuted  after  the  conveyance  of   the  26    Am.    St.    Rep.    851. 
"McDougal  tract,"  was  held  not  to 


CHAP.    XXIX.]  DESCRIPTION.  2005 

and  westerly,  if  by  so  doing  all  the  calls  will  be  made  con- 
sistent and  harmonious.'  But  the  terms  "northerly"  "north- 
westerly," etc.,  are  only  construed  as  "due  north,"  and  "due 
northwest,"  when,  if  this  construction  were  not  adopted,  the 
deed  would  be  void  for  want  of  certainty.  Calls  of  this  kind, 
however,  must  give  way  to  visible  monuments,  or  to  any 
other  description  of  a  line  which  makes  its  location  reasonably 
certain.^  "Easterly,"  used  alone,  in  its  strict  significance,  and 
unmodified  by  other  language,  will  be  construed  to  mean  due 
east.  If  its  meaning  is  qualified  by  the  use  of  other  words, 
it  means  precisely  what  the  words  of  qualification  make  it 
signify.^  So  where  the  word  "north"  in  a  description  of 
property  is  clearly  shown  by  the  context  to  be  a  clerical  error 
for  the  word  "south"  the  grant  will  be  so  read.^  A  master 
having  sold  the  property  which  was  described  in  a  judgment 
of  foreclosure  as  the  "south  half"  of  a  certain  section  executed 
a  deed  in  which  it  was  recited  that  he  had  sold  the  south 
half  and  then  the  deed  proceeded  that  he,  the  said  master, 
etc."  '  did  convey  the  "north"  half  of  that  section.  The  court 
held  that  the  deed  was  operative  to  pass  title  to  the  south  half 
and  that  the  word  "north"  was  presumptively  a  mistake  which 
might  be  rejected.*  While  the  court  cannot  include  in  the 
description  land  which  is  not,  by  a  fair  construction,  included 
in  the  calls,  it  may  correct  an  obvious  error  in  the  deed  so 
as  to  render  the  calls  consistent  with  each  other  and  to  per- 

9  Faris  v.  Phelan,  39  Cal.  612.  tainty,  or  when  there  is  nothing  else 

1  Irwin   V.   Towne,   42   Cal.   326.  to  show  that  it  was  not  used  in  that 

This  section  was  cited  as  authority  strict  sense." 

in  Martin  v.  Lloyd,  94  Cal.  195,  202,  2  Pratt    v.    Woodward,    32    Cal. 

where   the   court   said:   "Assuming  219,  91  Am.  Dec.  573. 

that  'N.,'  as  here  used,  stands  for  3  Whitaker  v.   Poston,   120  Tenn. 

'north,'    and    not    for    some    other  207,  110  S.  W.  1019. 

word  expressing  generally  a  north-  *  Cornell  v.   Green,  95  Fed.  334, 

ern    direction,    still,    such    a    word  37  C.  C  A.  85,  affirming  88  Fed. 

means  'due  north'  only  when  that  821. 

construction  is   necessary   for  cer- 


2006  THE  LAW   OF  DEEDS.  [CHAP.    XXIX. 

feet  the  description.^  A  deed  will  not  be  yitiated  because  a 
term  is  used  in  the  description  which  appears  by  the  context 
to  have  been  a  mistake  for  another  where  the  description 
would  be  completed  by  the  substitution  of  the  proper  term." 
If  a  description  is  otherwise  complete  and  accurate,  a  false 
statement  in  it  will  not  defeat  the  grant.''  And  if  it  appears 
that  there  is  obvious  omission  in  the  description  but  the  deed 
affords  sufficient  data  to  supply  the  omission,  the  defect  will 
be  cured  by  construction.' 

§  1036.  Division  lines  by  consent. — A  boundary  line 
may  be  established  by  adjoining  landowners.  When  they  so 
agree  upon  a  boundar>-  line,  enter  into  possession,  and  improve 
the  lands  according  to  the  line  thus  accepted,  they  will  not  after- 
ward be  allowed  to  claim  that  the  line  agreed  upon  is  not 
the  true  one,  although  the  bar  of  the  statute  of  limitations 
has  not  attached.^  But  the  proof  should  be  clear,  and  slight 
acts  from  which  the  inference  of  an  agreement  might  be 
drawn  should  not  be  considered  conclusive.^    A  deed  described 

6  Richardson    v.    WaUs,    94    Me.  452;   Davis  v.   Judge,  46  Vt.  655; 

476    48  Atl.   180.  Foulke  v.   Stockdale,  40  Iowa,  99; 

e'sawyer     etc.     Lumber     Co.     v.  Fahey    v.    Marsh,    40    Mich.    236; 

Clark,  172  Mo.  588,  7Z  S.  W.  137.  Camp  v.  Cochrane,  71  Ga.  865;  Kile 

7Lins  V.   Seefeld,   126  Wis.  610,  v.    Tubbs,   23    Cal.    431;    Bauer    v. 

105  N.  W.  917.     But  see  Mcintosh  Gottmanhausen,    65    111.    499.      See 

V.    Marathon   Land   Co.,    110   Wis.  Crowell  v.  Maughs,  2  Gilm.  419,  43 

296    85   N.   W.  976.  Am.   Dec.  62;   Yates   v.   Shaw,   24 

SDeal  V.    Cooper,   94   Mo.   62,   6  111.    367;    Rockwell    v.    Adams,    7 

S   W   70/  Cowen,  761 ;  Edwards  v.  White  Co., 

9McNamara    v.    Seaton,    82    111.  85   111.   390;   Wakefield   v.   Ross,   5 

498;  Orr  v.  Hadley,  36  N.  H.  575;  Mason,  15;   Piercy  v.  Crandall,  34 

Cutler    V.     Callison,    72    111.     113;  Cal.    334;    Jackson    v.    Ogden,    7 

Ebert  v.  Wood,  1  Binn.  216,  2  Am.  Johns.  238;  Vosburgh  v.  Teator,  32 

Dec.  436 ;  Bolton  v.  Lann,  16  Tex.  N.  Y.  561 ;  Boyd's  Lessee  v.  Graves, 

96;  Houston  v.  Sneed,  15  Tex.  307;  4  Wheat.  513;  Jackson  v.  Freer,  17 

Columbet  v.  Pacheco,  48  Cal.  395;  Johns.  29. 

Eaton  V.  Rice,  8  N.  H.  378;  Sneed  i  McNamara    v.    Seaton,    82    111. 

V.  Osborn,  25  Cal.  619;  Sawyer  v.  498,  500,  per  Craig,  J.     In  Cutler  v. 

Fellows,  6  N.  H.  107,  25  Am.  Dec.  Callison,  72  IIL  113,  115,  the  court 


CHAP.   XXIX.]  DESCRIPTION.  200? 

the  land  conveyed  as  running  back  from  a  street  eighty-five 
feet,  more  or  less,  and  bounded  in  the  rear  by  the  grantor's 
land,  which  was  a  part  of  the  same  tract.  The  grantor,  after 
the  execution  of  the  deed,  but  before  he  had  sold  any  more 
of  the  land,  prepared  and  placed  on  record  a  plan  of  the 
land  in  which  the  part  conveyed  was  laid  down  as  running 
to  a  length  of  eighty-eight  feet  from  the  street.  It  was 
held  that  the  grantee  took  according  to  the  plan,  as  the  acts 
of  the  grantor  were  equivalent  to  the  fixing  of  a  line  or  mon- 
ument.^ A  boundary  line  was  described  as  running  "north- 
erly to  land  of  M.,  thence  southeasterly  to  M's  land,  thirty- 
eight  rods  and  one-half  to  a  stump  and  stones."  Immediately 
after  the  execution  of  the  deed,  tlie  parties  went  upon  the 
land,  the  monuments  at  the  northwesterly  and  the  northeaster- 
ly corners  were  pointed  out,  and  the  distance  between  them 
was  exactly  thirty-eight  rods  and  a  half.  But  there  was  a  small 
strip  of  land  between  this  line  and  the  land  of  M;  still  it 
was  held  that  the  monuments  agreed  upon  were  to  govern, 
and  that  this  strip  of  land  did  not  pass  by  the  deed.^  And 
it  may  be  observed  that  where  the  deed  refers  for  its  boundaries 
to  monuments  which  at  the  time  are  not  actually  in  ex- 
instence,  but  are  afterward  erected  by  the  parties,  they  will 

said :  "This  principle  proceeds  upon  boundary  line  is  fairly  and  clearly 
the  ground,  not  that  title  can  pass  made,  and  possession  of  the  land 
by  parol  agreement,  but  that  the  held  according  to  the  line  so  agreed 
extent  of  the  ownership  of  the  land  upon,  no  reason  is  perceived  why 
of  each  has  been  agreed  upon,  set-  such  agreements  should  not  be  con- 
tied,  and  finally  determined:  Crow-  elusive."  An  agent  not  authorized 
ell  V.  Maughs,  2  Gilm.  419,  43  Am.  to  agree  upon  a  division  line,  but 
Dec.  62;  Kip  v.  Norton,  12  Wend.  employed  merely  as  a  superinten- 
127,  27  Am.  Dec.  120;  McCormick  dent,  cannot  bind  the  owner  by 
V.  Barnum,  10  Wend.  109;  Vos-  staking  a  line  to  show  how  far 
burgh  V.  Teator.  32  N.  Y.  561.  The  tenants  of  the  land  should  plow : 
courts  always  look  with  favor  upon  O'Hara  v.  O'Brien,  107  Cal.  309. 
the  adjustment  of  controverted  2  Blaney  v.  Rice,  20  Pick.  62,  32 
matters  of  this  character  by  agree-  Am.  Dec.  204. 

ment  of  the  parties  in  interest,  and  ^  Prost    v.     SpauUjing,     19    Pick, 

when  an  agreement  to  establish  a  445,  31  Am.  Dec.  150. 


2008  THE  LAW  OF  DEEDS.  [CHAP.    XXIX. 

be  bound  by  such  monuments  in  the  same  manner  as  if  they 
had  been  erected  before  the  execution  of  the  deed.*  An  agree- 
ment between  grantor  and  grantee  as  to  a  boundary  hne, 
must,  in  order  to  be  effectual,  be  made  while  they  own  the 
lands  on  both  sides  of  the  line  which  they  thus  locate.^  If 
a  division  fence  is  acquiesced  in  by  the  parties  for  the  period 
of  sixteen  years,  they  are  estopped  from  asserting  the  incor- 
rectness of  the  location.^  And  although  the  deeds  of  both 
parties  call  for  a  straight  line  between  admitted  landmarks, 
and  a  division  fence  is  crooked,  yet  if  it  has  stood  for  twenty- 
one  years,  it  will  constitute  the  line  between  the  adjoining 
owners.'  When  the  description  is  so  uncertain  that  a  line 
may  run  in  two  different  ways,  and  still  not  be  inharmonious 
with  the  other  calls  of  the  deed,  either  line  may  be  adopted 
by  the  parties.  Both  parties  are  concluded  by  the  line  when 
it  is  established.'  As  this  question  is  not  dependent  upon 
the  terms  of  the  description  used  in  the  deed,  it  is  only  briefly 
referred  to  in  passing. 

§  1037.     Line  located  by  mistake. — But  where  adjoin- 
ing proprietors  have  made  a  mistake  in  the  location  of   a 

*Lerned  v.  Morrill,  2  N.  H.  197;  Miisch  v.  Burkhart,  83  Iowa,  301, 

Blaney  v.  Rice,  20  Pick.  62,  32  Am.  12  L.R.A.  484,  32  Am.  St.  Rep.  305. 

Dec.    204;    Kennebec    Purchase    v.  A  tree,  the  trunk  of  which  is  on 

Tiffany,  1  Me.  (1  Greenl.)   219,  10  the  boundary  line  between  adjoin- 

Am.  Dec.  60;  Waterman  v.  John-  ing   owners,    is    held    in   common: 

son,    13    Pick.   267.     See   Davis   v.  Dubois   v.    Beaver,   25    N.    Y.    123, 

Rainsford,  17  Mass.  212.  82  Am.  Dec.  326.    But  otherwise  if 

5  Sneed  v.  Osborn,  25  Cal.  619.  exclusively    on    the    land    of    one, 

6  Columbet    v.    Pacheco,   48    Cal.  though  the  roots  and  branches  may 
395.  reach  beyond  the  boundary :  Hoff- 

■^  Curry  v.   Raymond,  28  Pa.   St.  man  v.   Armstrong,  48  N.  Y.  201, 

149.  8  Am.  Rep.  537 ;  Skinner  v.  Wilder, 

8  Hastings  v.  Stark,  36  Cal.   122.  38  Vt.   115,  88  Am.   Dec.  645.     A 

Adjoining    landowners    may    be-  nuisance  is  not  caused  by  a  row  of 

come  tenants   in  common   in  trees  trees  planted  near  a  boundary  line, 

on  a  boundary  line,  and  either  may  Merely    the   land    of    an   adjoining 

be  enjoined  from  destroying  them:  owner  is  thereby  rendered  unfit  for 


CHAP.    XXIX.]  DESCRIPTION.  2009 

division  line,  it  will  not  be  held  binding  and  conclusive  upon 
them  if,  by  disregarding  it,  no  injustice  will  be  done.'  Where 
the  boundaries  are  indefinite  and  uncertain,  and  they  are  run 
out  and  marked  by  the  owner  of  the  land,  the  presumption 
as  against  him  is  that  this  was  correctly  done;  but  he  may 
overcome  this  presumption  by  proof  of  a  mistake,  and  by 
showing  that  there  is  a  material  variance  between  the  true 
lines  and  the  lines  as  marked.*  Where  neither  party  intends 
to  claim  beyond  the  true  line,  possession,  up  to  what  is  erron- 
eously supposed  to  be  the  true  dividing  line  between  adjoining 
proprietors,  will  not  work  a  disseisin  in  favor  of  either  of 
any  land  occupied  by  him  under  such  erroneous  belief,*  But, 
although  a  location  of  a  boundary  line  may  have  been  or- 
iginally made  under  an  agreement  resulting  from  a  mutual 
mistake  of  fact,  still,  an  acquiescence  for  forty  years  in  such 
practical  location  is  conclusive.* 

§  1037a.  Further  consideration  of  subject. — It  must 
be  admitted  that  the  decisions  are  not  uniform  on  this  sub- 
ject, but  we  believe  the  weight  of  authority  sustains  the 
proposition  we  have  stated.  Whether  the  establishment  of  a 
boundary  line  depends  upon  the  theory  of  an  agreement  by 
the  parties  to  locate  a  dividing  line,  or  on  the  theory  that 
the  continuous  possession  of  a  strip  of  land  not  included  in 
the  description  of  the  deed  constitutes  adverse  possession,  yet 
the  element  of  intent  with  which  possession  is  taken  and  held 
must  be  material.     If  such  possession  is  the  result  of  mis- 

a  purpose  for  which  he  has  made  are  not  bound  by  a  consent  to  boun- 

no  attempt  to  use  it :  Grandona  v.  daries  which  have  been  made  under 

Lovdal,    78    Cal.    611,    12   Am.    St,  an  apparent  error,  unless,  perhaps, 

Rep.  121.  by   a   prescription   of   thirty   years. 

9  Menkens  v.  Blumenthal,  27  Mo.  And  see  Lemmon  v.  Hartsook,  80 

198.  Mo.  13. 

1  Cunningham  v.  Roberson's  Les-  ^  Houx  v.  Batteen,  68  Mo.  84. 

see,  31  Tenn.  (1  Swan.)   138.     And  3  Baldwin    v.    Brown,    16    N.    Y. 

see  Gray  v.  Couvillon,  12  La.  Ann.  359.     And  see,  also,  Major's  Heirs 

730,   where   it   is   held  that  parties  v.  Rice,  57  Mo,  384. 


2010  THE  LAW  OF  DEEDS.  [CHAl'.    XXlX. 

take,  without  an  Intent  on  the  part  of  the  person  in  posses- 
sion to  encroach  upon  his  neighbor,  and  hold  more  land  than 
that  to  which  he  is  entitled,  such  possession  cannot  be  said  to 
be  adverse,  until  it  is  known  where  the  true  boundary  line 
lies.  Then  the  opportunity  is  presented  for  him  to  decide 
whether  he  will  claim  adversely,  land  which  is  not  embraced 
with  the  description  contained  in  his  deed.  The  current  of 
authority,  in  our  opinion,  justifies  us  in  stating  the  rule  to 
be  that  the  location  of  a  boundary  line,  made  through  mistake 
or  ignorance  of  the  true  line,  with  no  intention  to  claim 
beyond  the  true  line,  wherever  it  may  be,  will  not  bind  the 
parties,  so  as  to  prevent  them  from  showing  the  truth,  and 
having  the  lines  established  as  they  were  originally  intended 
and,  in  justice,  ought  to  be.*  While  this  is  undoubtedly  the 
general  rule,  yet  in  many  jurisdictions  the  principle  prevails, 
that  the  question  whether  a  line  was  located  by  mistake  or 
not  is  immaterial,  and  that  the  possession  beyond  the  true 
line,  under  a  mistake  as  to  its  location,  must  be  considered  as 
adverse,  and,  if  continued  for  the  length  of  time  prescribed 
by  the  statute  of  limitations,  will  extinguish  the  title  of  the 

*  Battner  v.  Baker,  108  Mo.  311,  Worcester  v.  Lord,  56  Me.  265,  96 
32  Am.  St.  Rep.  606;  Krider  v.  Mil-  Am.  Dec.  546;  Dow  v.  IMcKenney, 
ner,  99  Mo.  145,  17  Am.  St.  Rep.  64  Me.  138;  Brown  v.  Cockerell,  33 
549;  Jacobs  V.  Moseley,  91  Mo.  457;  Ala.  38;  Sartain  v.  Hamilton,  12 
Schad  V.  Sharp,  95  Mo.  574;  Skin-  Tex.  219,  62  Am.  Dec.  524;  Grube 
ker  V.  Haagsma,  99  Mo.  209;  Kunze  v.  Wells,  34  Iowa,  148;  Burnell  v. 
V.  Evans,  107  Mo.  487,  28  Am.  St.  Russell,  39  Vt.  579,  94  Am.  Dec. 
Rep.  435;  Finch  v.  Ullman,  105  Mo.  358;  Mills  v.  Penny,  74  Iowa,  172, 
255,  24  Am.  St.  Rep.  383;  Crawford  7  Am.  St.  Rep.  474:  Gates  v.  But- 
V.  Alinies,  103  Mo.  88;  Houx  v.  ler,  3  Humph.  447;  Skinner  v. 
Batteen,  68  Mo.  84;  Tamm  v.  Kel-  Crawford,  54  Iowa,  119;  Burnell  v. 
logg,  49  Mo.  118;  St.  Louis  Uni-  Russell,  39  Vt.  579,  94  Am.  Dec. 
versity  v.  McKune,  28  Mo.  481;  358;  Howard  v.  Reedy,  29  Ga.  152, 
Keen  v.  Schnedler,  92  Mo.  516;  74  Am.  Dec.  58;  Gilchrist  v.  Mc- 
Knowlton  v.  Smith,  36  Mo.  507,  Laughlin,  7  Ired.  310;  Shells  v. 
88  Am.  Dec.  152;  McDonald  v.  Haley,  61  Cal.  157;  Breen  v.  Don- 
Fox,  20  Nev.  364;  Wood  v.  Wil-  nelly,  74  Cal.  304.  This  rule  also 
lard,  n  Vt.  377,  86  Am.  Dec.  716;  applies  to  the  pubic:  State  v.  Welp- 
Brown    v.    Gray,    3    Greenl.    126;  ton,  34  Iowa,   144. 


CHAP.    XXIX.] 


DESCRIPTION. 


2011 


owner.^  In  California,  it  is  held  that  the  possession  of  land, 
under  a  mistake  as  to  the  boundary  line,  will  not  defeat  any 
claim  to  title  founded  on  such  possession,  and  it  is  said  that 
the  doctrine  that  such  possession  should  be  accompanied  by 
a  claim  of  title,  is  founded  upon  a  fallacy."  The  law  in 
that  State  may  be  said  to  be  that  title  to  land  may  be  acquired 
by  the  adverse  possession  of  land  for  the  statutory  period 
within  the  limits  of  an  inclosure,  notwithstanding  the  land  was 
so  inclosed  under  a  mistake  as  to  its  boundaries,  where  it  is 
claimed  that  the  fences  were  constructed,  as  a  matter  of  fact, 
on  the  true  line;  but,  if  no  claim  was  made  that  the  fences 
were  on  the  true  line,  but  they  were  erected  with  the  expecta- 
tion of  moving  them  to  the  true  line  when  it  should  be  as- 
certained, the  possession  is  not  adverse.''    Where  it  is  known 


"Ramsey  v.  Glenny,  45  Minn.  401, 
22  Am.  St.  Rep.  736;  Canfield  v. 
Clark,  17  Or.  473,  11  Am.  St.  Rep. 
845;  Tex  v.  Pflug,  24  Neb.  666,  8 
Am.  St.  Rep.  231 ;  French  v.  Pearce, 
8  Conn.  439,  21  Am.  Dec.  680; 
Smith  V.  McKay,  30  Ohio  St.  418; 
Metcalfe  v.  McCutcheon,  60  Miss. 
145;  Mode  v.  Long,  64  N.  C.  433; 
Seymour  v.  Carli,  31  Minn.  81 ;  Yet- 
zer  V.  Thompson,  17  Ohio  St.  130, 
91  Am.  Dec.  122;  Swettenham  v. 
Leary,  18  Hun,  287 ;  Levy  v.  Yerga, 
25  Neb.  764,  13  Am.  St.  Rep.  525; 
Erck  V.  Church,  87  Tenn.  575,  4 
L.R.A.  641 ;  Harn  v.  Smith,  79  Tex. 
310,  23  Am.  St.  Rep.  340;  Coleman 
V.  Smith,  55  Tex.  259;  Atwood  v. 
Canrike,  86  Mich.  99;  Hoffman 
V.  White,  90  Ala.  354.  In  some 
states,  where  the  rule  prevails  as 
announced  in  the  text,  the  deci- 
sions are  conflicting.  Compare  with 
the  decisions  cited  in  the  prior 
note:  Cole  v.  Parker,  70  Mo.  372; 
Handlan  v.  McManus,  100  Mo.  125, 
18   Am,    St    Rep.    533;    Grimm   v. 


Curley,  43  Cal.  250.  The  Supreme 
Court  of  Missouri,  in  a  recent  case, 
attempts  to  reconcile  the  conflicting 
decisions  in  that  State  by  declaring 
that  when  adjoining  landowners 
claim  only  to  the  true  line,  wher- 
ever that  may  be,  they  are  not 
bound  by  the  supposed  line,  but 
must  conform  to  the  true  line  when 
it  is  ascertained,  but  where  a  per- 
son has  possession  up  to  a  fence, 
and  claims  to  be  the  owner  up  to 
it  this  possession  is  adverse,  al- 
though he  may  believe  the  fence 
to  be  on  the  true  line.  "The  dis- 
tinction between  these  rules,"  said 
the  court,  "lies  in  the  fact  whether 
the  party  claimed  only  to  the  true 
line,  wherever  that  might  be,  or  to 
the  fence":  Battner  v.  Baker,  108 
Mo.  311,  32  Am.  St.  Rep.  606. 

s  Woodward  v.  Paris,  109  Cal. 
17;  Silvarer  v.  Hansen,  74  Cal.  584; 
Grimm  v.  Curley,  43  Cal.  250. 

7  Woodward  v.  Paris,  109  Cal.  17. 
But    see,    also,    decisions    cited    in 


2012 


THE  LAW  OF  DEEDS. 


[chap.    XXIX. 


by  both  parties  that  the  line  fixed  is  not  the  true  line  an  agree- 
ment without  consideration  fixing  the  division  line  is  in- 
effectual.' There  must  be  an  uncertainty  as  to  the  true  line 
and  some  controversy  concerning  it  which  may  be  deter- 
mined by  the  agreement.'  The  true  boundary  line  should  be 
in  dispute  and  to  some  extent  undefined  and  not  actually 
known.* 

§  1038.  Two  descriptions  in  deed. — Where  the  deed 
contains  two  descriptions  of  the  land  conveyed  equally  ex- 
plicit, but  between  which  there  is  a  repugnance,  that  descrip- 
tion which  the  whole  instrument  shows  best  expresses  the 
intention  of  the  parties  must  control.'^  The  court  will  look 
into  the  surrounding  facts,  and  will  adopt  the  description 


previous       notes,       and      compare 
O'Hara   v.   O'Brien,    107    Cal.   309. 

8  Lewis  V.  Ogrum,  149  Cal.  505, 
10  L.R.A.(N.S.)  610,  87  Pac.  60. 
But  the  rule  is  recognized  that  if 
adjoining  owners  "in  good  faith 
agree  upon,  fix  and  establish  a 
boundary  line  between  their  re- 
spective tracts  of  land,  in  which 
they  acquiesce,  and  under  which 
they  occupy,  for  a  period  equal  to 
that  fixed  by  the  statute  of  limita- 
tions, the  line  as  thus  established 
is  binding  upon  them."  Lewis  v. 
Ogram,  supra;  White  v.  Spreckles, 
75  Cal.  616,  17  Pac.  715;  Cooper  v. 
Vierra,  59  Cal.  283;  Helm  v.  Wil- 
son, 76  Cal.  485,  18  Pac.  604; 
Dierssen  v.  Nelson,  138  Cal.  398,  71 
Pac.  456.  An  estoppel  may  exist: 
Cavanaugh  v.  Jackson,  91  Cal.  583, 
27  Pac.  931. 

9  Hartung  v.  Witte,  59  Wis.  285, 
18  N.  W.  175. 

1  Farr  v.  Woolfolk,  118  Ga.  277, 
45  S.  E.  230 ;  Miller  v.  McGlaun,  63 
Ga.  436.    Thaxter  v.  Inglis,  121  Cal. 


593,  54  Pac.  86;  Levy  v.  Maddox, 
81  Tex.  210,  16  S.  W.  877 ;  Watrous 
V.  Morrison,  32  Fla.  261,  14  So.  806, 
39  Am.  St.  Rep.  139;  Ernstring  v. 
Gleason,  137  Mo.  594,  39  S.  W.  70; 
Carstarphen  v.  Holt,  96  Ga.  703,  23 
S.  E.  904 ;  Le  Comte  v.  Freshwater, 
56  W.  Va.  336,  49  S.  E.  238;  Wade 
v.  McDougle,  59  W.  Va.  113,  52  S. 
E.  1026;  Hills  v.  Ludwig,  46  Ohio 
St.  373,  24  N.  E.  596;  Galbraith  v. 
Lunsford,  87  Tenn,  89,  1  L.R.A. 
526,  9  S.  W.  365;  Lynch  v.  Egan, 
67  Neb.  541,  93  N.  W.  775. 

2  Moore  v.  Massini,  37  Cal.  432 ; 
Driscoll  v.  Green,  59  N.  H.  101; 
Wade  V.  Deray,  50  Cal.  376;  Ray- 
mond v.  Coffey,  5  Or.  132.  See 
Den  V.  Graham,  1  Dev.  &  B.  76,  27 
Am.  Dec.  226;  Reamer  v.  Nesmith, 
34  Cal.  624;  Benedict  v.  Gaylord,  11 
Conn.  332,  29  Am.  Dec.  299;  Wen- 
dell V.  Jackson,  8  Wend.  183,  22  Am. 
Dec.  635;  Moss  v.  Shear,  30  Cal. 
467.  For  a  case  in  which  it  was 
held  that  there  was  no  repugnance 
in    the    descriptive    clause    of    the 


CHAP.    XXIX.] 


DESCRIPTION. 


2013 


which  is  most  definite  and  certain,  and  which,  in  the  Hght 
of  surrounding  circumstances,  can  be  said  to  effectuate  most 
clearly  the  intention  of  the  parties.'  A  description  in  a  deed 
was :  "All  that  certain  lot  of  land  situate  in  said  city  of  Con- 
cord, on  the  north  side  of  Chapel  street,  fifty  feet;  westerly 
by  land  of  said  Vail  and  late  Samuel  Frye,  fifty  feet;  and 
easterly  by  land  of  said  Vail,  about  ninety-eight  feet,  with 
the  buildings  thereon,  intending  to  include  only  the  land 
on  which  said  buildings  are  situated,  and  the  yard  inclosed 
within  the  fence  as  now  built."  The  question  before  the 
court  was  whether  the  particular  description  of  the  property 
conveyed  was  controlled  and  limited  by  the  words  "intending 
to  include  only  the  land  on  which  said  buildings  are  situated, 
and  the  yard  inclosed  within  the  fence  as  now  built."  The 
court  held  that,  from  the  facts  of  the  case,  the  second  descrip- 
tion being  clearly  erroneous,  should  not  control.*     "There  is 


deed,  see  Castro  v.  Tennent,  44 
Cal.  253.  See,  also,  Vose  v.  Handy, 
2  Greene,  322,  11  Am.  Dec.  101. 

8  Wade  V.  Deray,  50  Cal.  376. 
Where  land  is  described  by  metes 
and  bounds,  and  the  deed  also 
states  that  it  is  all  of  a  tract  of 
land,  described  in  another  mode, 
effect  will  be  given,  if  the  two  de- 
scriptions do  not  agree,  to  the 
larger  and  more  comprehensive  de- 
scription. As  a  consequence,  the 
deed  will  convey  the  land  embraced 
in  both  descriptions :  Lake  Erie 
etc.  R.  R.  Co.  V.  Whitham,  155  111. 
514,  28  L.R.A.  612,  46  Am.  St.  Rep. 
355. 

4  Driscoll  V.  Green,  59  N.  H.  101. 
In  this  case,  Mr.  Justice  Clark,  in 
delivering  the  opinion  of  the  court, 
said:  "A  deed  is  to  be  construed 
according  to  the  intention  of  the 
parties  as  manifested  by  the  entire 
instrument,     although     such     con- 


struction may  not  comport  with  the 
language  of  a  particular  part  of  it: 
Allen  V.  Holton,  20  Pick.  458,  463 ; 
Worthington  v.  Hylyer,  4  Mass. 
196;  White  v.  Gay,  9  N.  H.  126, 
31  Am.  Dec.  224;  Johnson  v.  Simp- 
son, 36  N.  H.  91 ;  Lane  v.  Thomp- 
son, 43  N.  H.  320,  324;  Richardson 
V.  Palmer,  38  N.  H.  212.  Regard- 
ing the  two  descriptions  as  equally 
explicit  and  unambiguous,  being  in- 
consistent with  each  other,  that  de- 
scription must  control  which  best 
expresses  the  intention  of  the  par- 
ties as  manifested  by  the  whole 
instrument.  By  the  first  descrip- 
tion, the  premises  conveyed  are 
bounded  southerly  by  Chapel 
street.  By  the  second  description, 
limiting  the  premises  to  the  land 
on  which  the  buildings  are  situated 
and  the  yard  inclosed  within  the 
fence,  the  plaintiff's  lot,  instead  of 
extending  to  Chapel  street,  is  sep- 


2014  THE  LAW  OF  DEEDS.  [CHAP.    XXIX. 

but  one  principle  applicable  to  questions  of  this  sort.  If  there 
be  but  one  description  in  the  deed,  that  is  to  be  strictly  ad- 
hered to.  If  there  be  more  than  one,  and  they  turn  out  upon 
evidence  not  to  agree,  that  is  to  be  adopted  which  is  most 
certain.  Course  and  distance  from  a  given  point  is  a  certain 
description  in  itself,  and  therefore  is  never  departed  from, 
unless  there  be  something  else  which  proves  that  the  course 
and  distance  stated  in  the  deed  were  thus  stated  by  mistake 
It  has  been  held  that  a  tree  called  for  and  found  not  correspond- 
ing to  the  course  and  distance  establishes  the  mistake,  and 
is  itself  the  terminus.  So,  of  the  line  of  another  tract  of 
land.  But  if  the  tree  be  not  found,  nor  its  former  situation 
identified,  it  is  the  same  as  if  the  call  for  it  had  been  omitted; 
for  tliere  is  then  no  guide  but  the  course  and  distance."  *  "The 
true  rule  of  construction,  where  the  parts  of  a  description  in 
a  deed  are  inconsistent  with  each  other,  is  to  give  effect 
to  those  consistent  and  intelligible  portions  which  carry  out 
the  intention  of  the  parties,  and  reject  what  is  repugnant 
thereto.  If  the  instrument  dehnes.  with  convenient  certainty 
what  is  intended  to  pass  by  it,  a  subsequent  erroneous  addi- 

arated  from  it  by  a  strip  of  land  which  the  grantor  evidently  intend- 
six  feet  and  three  inches  in  width,  ed  to  convey.  The  second  descrip- 
lying  between  the  fence  on  the  tion,  therefore,  being  clearly  erron- 
southerly  side  of  the  yard  and  the  eous  as  to  the  northerly  and  south- 
northerly  line  of  Chapel  street.  erly  lines  of  the  lot,  ought  not  to 
This  description  excludes  the  plain-  control  the  first  description  as  to 
tiff's  lot  and  buildings  entirely  from  the  easterly  line.  If  there  is  an  ex- 
the  street,  without  even  a  right  of  plicit  and  unambiguous  grant  of  a 
passage  way  to  it.  Such  could  not  thing,  any  exception  or  reserva- 
have  been  the  intention  of  the  par-  tion  which  is  manifestly  contradic- 
ties,  and  this  description  is  mani-  tory  will  be  rejected:  Rutherford 
festly  erroneous  as  to  the  southerly  v.  Tracy,  48  Mo.  325,  8  Am.  Rep. 
line  of  the  lot.  It  is  equally  incor-  104;  Herrick  v.  Hopkins,  23  Me. 
rect  when  applied  to  the  northerly  217;  Pike  v.  Munroe,  36  Me.  309, 
line,  as  it  leaves  a  strip  of  land  be-  58  Am.  Dec.  751;  Ela  v.  Card,  2  N. 
tween  the  northerly  end  of  the  sta-  H.  175,  9  Am.  Dec.  46." 
ble  and  the  Frye  land,  which  is  in-  ^  Ruffin,  C.  J.,  in  Den  v.  Graham, 
eluded  in  the  first  description,  and  1  Dev.  &  B.  76,  27  Am.  Dec.  226. 


CHAP.    XXIX.]  DESCRIPTION.  2015 

tion  will  not  vitiate  it."  ^  In  a  deed,  the  land  conveyed  was 
described  by  fixed,  known,  and  visible  metes  and  bounds,  as 
well  as  by  corresponding  courses  and  distances.  A  further 
description  was  also  added,  which  bounded  the  land  on  its 
several  sides  by  the  lands  of  adjoining  owners.  Land  in- 
cluded within  the  latter  description  was  excluded  by  the  former. 
An  action  of  ejectment  was  brought  against  the  grantee  for 
the  land  not  included  in  the  former  description,  and  the  court 
decided  that  the  apparent  intention  of  the  parties  was  not  to 
convey  different  parcels  of  land  by  different  descriptions,  but 
to  convey  one  piece,  and  that  the  first  description  in  the 
deed,  being  more  certain  than  the  second,  controlled  the  latter.'' 
A  description  after  naming  a  certain  monument  added,  "thence 
running  southerly  by  land  improved  by  Gridley  Putney  to 
the  road."  A  line  running  a  little  east  of  south  would  in- 
clude the  land  improved  by  Putney  in  the  granted  premises. 
But  a  line  running  a  little  south  of  west,  to  the  corner  of  the 
land  improved  by  Putney,  and  thence  along  the  line  of  this 
land  a  little  east  of  south  to  the  road,  at  a  point  almost  south 
of  the  monument,  would  exclude  such  land  from  the  granted 
premises.  The  court  decided  that  it  would  adopt  the  latter 
construction  as  the  true  one.'  Where  a  deed  conveyed  a  tract 
of  land  described  as  "sixty  acres  of  the  west  side  of  lot  6  of 
section  10,  and  lot  1,  and  S.  W.  ^  of  S.  W.  |  of  section  11," 
and  the  three  subdivisions  thus  mentioned  constituted  one 
body  of  land,  lot  6  adjoining  on  the  west  each  of  the  other 

*  Raymond  v.  Coffey,  5  Or.   132,  located    outside    of   these    sections. 

135,   per   Mosher,  J.     In  this  case  But  the  court  held  that  these  words 

the  description  was  given  by  metes  should  be  treated  as  words  of  gen- 

and   bounds,    to    which    was   added  eral  description,  and  if  inconsistent 

the  words,  "being  parts  of  sections  with  the  description  by  metes  and 

twenty-five  and  thirty-six,  in  town-  bounds,  should  be  rejected, 

ship  four  south,  range  three  west";  'Benedict   v.   Gaylord,    11    Conn, 

it    was    claimed    that    these    words  332,  29  Am.  Dec.  299. 

constituted    the    particular   descrip-  8  Bond  v.  Fay,  8  Allen,  212;  s.  c 

tion  which  should  govern,  and  that  12  Allen,  86. 
the   beginning   stake   could   not  be 


2016  THE  LAW  OF  DEEDS.  [CHAP.    XXIX. 

subdivisions,  the  court  held  that  by  this  conveyance,  sixty 
acres  off  the  west  side  of  this  body  of  land  formed  of  these 
three  subdivisions  were  conveyed,  and  that  the  deed  did  not 
convey  both  such  sixty  acres,  and  also  the  two  easterly  sub- 
divisions.' If  the  statement  of  the  courses  or  boundaries  is 
manifestly  erroneous,  the  deed  is  not  defeated  when  there  re- 
mains a  description  sufficiently  certain  to  locate  the  land.* 

§  1038a.     Middle  point  of  physical  object  intended. — 

Where  any  physical  object  or  monument  is  designated  as 
a  boundary,  the  middle  or  central  point  of  such  boundary 
is  implied  in  the  absence  of  any  qualifying  term."  The  courses 
and  distances  must  yield  to  the  actual  line  of  a  creek  which 
is  made  the  boundary  of  the  land  conveyed,  the  calls  of  the 
deed  ascending  the  creek,  and  the  line  ascending  the  creek 
following  the  thread  of  the  stream.'  Where  land  is  de- 
scribed as  a  subdivision  according  to  a  map  of  the  block  on 
file,  and  also  by  metes  and  bounds,  the  former  description 
will  prevail  if  there  be  a  conflict.* 

§  1039.  Repugnance  between  general  and  particular 
description. — Where  there  is  a  repugnance  between  a 
general  and  a  particular  description  in  a  deed,  the  latter  will 
control.'    But  whenever  possible,  the  real  intent  is  to  be  gath- 

•Lovejoy    v.    Gaskill,    30    Minn.  dridge,    27    Ind.    294;    Bratton    v. 

137.  Clawson,  3   Strob.   127;  Thorndike 

1  Thompson  v.  Ela,  60  N.  H.  562.  v.    Richards,    13    Me.   430 ;    Bell   v. 

*  Freeman  v.  Bellegarde,  108  Cal.  Sawyer,  32  N.  H.  72;  McEowen  v. 
179,  49  Am.  St.  Rep.  76.  Lewis,  26  N.  J.  L.   (2  Dutch.)  451. 

3  Freeman  v.  Bellegarde,  108  Cal.  See  Nutting  v.  Herbert,  35  N.  H. 

179,  49  Am.  St  Rep.  76.  121 ;    Barney    v.    Miller,    18    Iowa, 

*Masterson   v.   Munro,    105   Cal.  460;  Smith  v.  Strong,  14  Pick.  128; 

431,  45  Am.  St.  Rep.  57.  Brunswick  Savings  Inst.  v.  Cross- 

*  Sikes  V.  Shows,  74  Ala.  382;  man,  76  Me.  577;  Lovejoy  v.  Lov- 
Hannibal  &  St.  Joseph  R.  R.  Co.  v.  ett,  124  Mass.  270;  Fenwick  v.  Gill, 
Green,  68  Mo.  169;  Woodman  v.  38  Mo.  510;  Evans  v.  Greene.  21 
Lane,  7   N.  H.  242;   Gano  v.  Al-  Mo.  170;  Barnard  v.  Martin,  5  N. 


CHAP.    XXIX.]  DESCRIPTION.  2017 

ered  from  the  whole  description,  including  the  general  descrip- 
tion as  well  as  the  particular.^  In  attempting  to  determine 
the  intention  of  the  parties  from  the  whole  instrument,  we 
cannot  say  that  a  particular  description  in  a  deed  is  necessarily 
enlarged  by  a  following  general  description,  referring  to  and 
adopting  the  description  of  an  earlier  deed,  even  if  the  lan- 
guage employed  by  the  grantor  is  "intending  to  convey  the 
same  and  identical  real  estate  conveyed  to  me  by  one,"  giving 
the  name  of  such  grantor,  the  date  of  the  deed,  and  the  book 
and  page  where  recorded.'  But  where  the  description  in  the 
deed  closes  with  a  clause  which  clearly  and  unequivocally 
sums  up  the  intention  of  the  parties  as  to  the  particular  prop- 
erty conveyed,  such  clause  has  a  controlling  effect  upon  all 
the  antecedent  phrases  in  the  description.  As  for  instance, 
such  is  the  effect  of  a  closing  clause  stating  that  "the  premises 
hereby  intended  to  be  conveyed  being  the  east  half  part  of 
the  farm  whereon  Johnson  Babcock,  now  deceased,  formerly 

H.  536;  Flagg  v.  Bean,  25  N.  H.  v.  Griffin,  22  Me.  350;  Thorndike  v. 
(5  Fost.)  49;  Carter  v.  White,  101  Richards,  13  Me.  430;  Howard  v. 
N  C.  30,  7  S.  E.  473;  Grandy  v.  Saule,  5  Mason,  410;  Witt  v.  St. 
Casey,  93  Mo.  595;  Wharton  v.  Paul  etc.  Ry.  Co.,  38  Minn.  122, 
Brick,  49  N.  J.  L.  289,  8  Atl.  35  N.  W.  862;  Case  v.  Dexter,  106 
529;  Giulmartin  v.  Wood,  76  Ala.  N.  Y.  548;  Jones  v.  Smith,  IZ  N.  Y. 
204;  Sikes  v.  Shows,  74  Ala.  382;  205;  Osteen  v.  Wynn,  131  Ga.  309, 
Dana  v.  Middlesex  Bank,  10  Met.  (i2  S.  E.  Zl  (citing  text)  ;  Modlin 
250;  Whiting  v.  Dewey,  15  Pick.  v.  Roanoke  R.  &  Lumber  Co.,  145 
428;  Wright  v.  Mabry,  9  Yerg.  55;  N.  C.  218,  58  S.  E.  1075;  Barksdale 
Fletcher  v.  Clark,  48  Vt.  211;  Spil-  v.  Barksdale,  92  Miss.  166,  45  So. 
let  V.  Scribner,  36  Vt.  245;  Cum-  615;  Tate  v.  Betts  (Tex.)  91  S.  W. 
mings  V.  Black,  65  Vt.  76,  25  Atl.  707;  Shackleford  v.  Orris,  129  Ga. 
906;  Raymond  v.  Coffey,  5  Or.  132;  791,  59  S.  E.  772  (citing  text.) 
Jones  V.  Pashby,  62  Mich.  614,  29  ^  Brunswick  Savings  Inst.  v. 
N.  W.  374;  Benedict  v.  Gaylord,  11  Grossman,  76  Me.  577.  See  Sum- 
Conn.  ZZ2,  29  Am.  Dec.  299;  Bar-  mer  v.  Hill  (Ala.)  47  So.  565; 
ney  v.  Miller,  18  Iowa,  460;  Waldin  Stevenson  v.  Yoho  (W.  Va.)  59 
V.  Smith,  76  Iowa,  652,  39  N.  W.  S.  E.  954;  Dochterman  v.  Marshall 
82;  Stafford  v.  King,  30  Tex.  257,  (Miss.)  46  So.  542. 
94  Am.  Dec.  304;  Cullers  v.  Piatt,  'Brunswick  Savings  Inst.  v. 
81  Tex.  258,  16  S.  W.  1003;  Moore  Crosman,  76  Me.  577. 
Deeds,  Vol.  II.— 127 


2018 


THE  LAW   OF  DEEDS. 


[chap.    XXIX. 


lived,  in  the  town  of  Tully."  *  Still  each  case  must  in  a 
measure  be  decided  by  itself.  A  deed  described  the  land  con- 
veyed by  metes  and  bounds,  adding:  "Being  the  same  prem- 
ises conveyed  to  me  by  Ezra  Holden,  by  deed  dated  May  7, 
1829,  recorded  with  Middlesex  deeds,  book  315,  page  120." 
It  was  contended  that  this  language  was  intended  as  a  gen- 
eral description  of  the  land  conveyed,  and  that,  as  in  some 
respects  the  particular  description  was  uncertain  and  indefinite, 
the  general  description  should  control.  But  the  court  ob- 
served: "This  clause  is  entitled  to  some  weight  in  deter- 
mining the  intention  of  the  parties,  but,  in  our  opinion,  it 
is  not  sufficient  to  overcome  the  inferences  to  be  drawn  from 
the  other  parts  of  the  deed."  ^  If  both  the  repugnant  descrip- 
tions are  of  equal  authority,  the  one  more  favorable  to  the 
grantee  must  be  adopted.^ 

§   1040.     Some  illustrations. — A  deed  described  the  land 
intended  to  be  conveyed  as:     "A  part  of  fractional  section 


sOusby  V.  Jones,  IZ  N.  Y.  621. 
See,  also,  Jones  v.  Pashby,  62  Mich. 
614;  Bates  v.  Foster,  59  Me.  157,  8 
Am.  Rep.  406;  Plummer  v.  Gould, 
92  Mich.  1,  31  Am.  St.  Rep.  567,  52 
N.  W.  146;  Ryan  v.  Wilson,  9 
Mich.  262;  Barney  v.  Miller,  18 
Iowa,  460 ;  Witt  v.  St.  Paul  etc.  Ry. 
Co.,  38  Minn.  122,  35  N.  W.  862 
Bent  V.  Rogers,  137  Mass.  192 
Padduck  v.  Pardee,  1  Mich.  421 
Sprague  v.  Snow,  4  Pick.  54;  Mor- 
an  V.  Lezotte,  54  Mich.  83;  Chap- 
man V.  Crooks,  41  Mich.  595.  So 
where  the  deed  recited,  "The  pur- 
pose and  intent  of  this  deed  being 
to  convey  to  the  said  second  parties 
all  and  each  of  the  right,  title, 
claim,  and  interest,  either  in  pos- 
session or  expectancy,  of  the  said 
first    parties,    of,    in,    and    to    the 


above-described  premises,  by  virtue 
of  certain  deeds  of  conveyance," 
describing  them,  this  general  clause 
controls  all  the  prior  phrases  of  the 
description:  Plummer  v.  Gould,  92 
Mich.  1,  31  Am.  St.  Rep.  567.  See 
to  same  effect,  Padduck  v.  Pardee, 
1  Mich.  421;  Ryan  v.  Wilson,  9 
Mich.  262;  Chapman  v.  Crooks,  41 
Mich.  595;  Moran  v.  Lezotte,  54 
Mich.  83;  Jones  v.  Pashby,  62  Mich. 
621 ;  Witt  V.  St.  Paul  etc.  Ry.  Co.. 
38  Minn.  127;  Barney  v.  Miller,  18 
Iowa,  460;  Sprague  v.  Snow,  4 
Pick.  54;  Bent  v.  Rogers,  137  Mass. 
192;  Bates  v.  Foster,  59  Me.  157, 
8  Am.  Rep.  406. 

5  Love  joy  v.  Lovett,  124  Mass. 
270. 

1  Vance  v.  Fore,  24  Cal.  436;  Ha- 
ger  V.  Spect,  52  Cal.  579. 


CHAP.    XXIX.]  TESCRIPTION.  2019 

number  19,  being  the  half  of  the  west  half  of  the  northwest 
quarter  of  section  number  29,  in  township  number  7  south, 
of  range  14  west,  containing  forty  acres,  and  also  a  small 
fraction  of  land,  for  quantity  beginning  at  the  northwest 
comer  of  the  aforesaid  forty  acres,  thence  running  with  the 
west  line  sixteen  poles,  thence  running  to  the  river,  a  north 
corner,  supposed  to  contain  four  acres."  The  court  observed 
of  this  description:  "Though  the  lands  are  very  awkwardly 
described,  yet  we  think  that  it  may  be  ascertained  with  suffici- 
ent certainty  from  the  language,  that  the  undivided  half  of 
the  lands  in  controversy  was  intended  to  be  conveyed.  Some 
effect  will,  if  possible,  be  given  to  the  instrument,  for  it  will 
not  be  intended  that  the  parties  meant  it  to  be  a  nullity.  It  is 
a  rule  of  construction  that  words  of  particular  description 
will  control  more  general  terms  of  description  when  both 
cannot  stand  together.  Applying  that  rule  here,  all  that 
is  said  of  'fractional  section  number  19'  must  be  rejected,  as 
contradicting  the  following  definite  description  of  the  lands 
in  section  29.  Of  this  last,  the  'half  of  the  west  half  of  the 
northwest  quarter'  is  conveyed.  This  is  definite,  except 
as  to  the  'half,'  and  the  language  in  that  respect  can- 
not be  effective  to  convey  any  particular  half.  But  there 
is  nothing  which  forbids  a  construction  which  will  make  it 
good  for  an  undivided  half,  and  this  it  may  receive.  It  was, 
we  think,  therefore,  not  void  for  uncertainty."  ^  Where  the 
description  in  a  deed  taken  alone  would  include  an  entire 
tract,  the  interest  conveyed  will  be  restricted  to  an  undivided 
half,  if  there  is  a  clause  added  to  the  description  that  the 
grantor  meant  to  convey  all  the  land  that  he  purchased  of 

*Gano  V.  Aldridge,  27  Ind.  294.  a  fraction  number  29  (its  west  half 
In  this  same  case  there  was  another  of  the  fraction),  containing  five 
deed  made  by  the  same  grantor,  in  acres,  more  or  less,  in  township  7 
which  the  description  was :  "A  cer-  south,  of  range  14  west."  This  de- 
tain tract  of  land  in  Posey  county,  scription  was  held  to  be  unintelli- 
lying  on  the  Wabash  river,  with  gible,,  and  without  evidence  alhm- 
numbers  as   follows:   The  half  of  'de,  no  effect  could  be  given  to  it. 


2020 


THE  LAW  OF  DEEDS. 


[chap.    XXIX. 


another,  set  forth  in  his  deed  recorded  in  a  given  book,  if 
in  that  deed  only  an  undivided  half  is  conveyed.'  So  where 
a  deed  conveyed,  several  lots  of  land  by  number,  and  all  of 


»Flagg   V.   Bean,   25    N.    H.    (5 
Fost.)  49.    In  this  case  the  descrip- 
tion was:  "Three  certain  pieces  or 
parcels  of  land,  situate,  etc.,  bound- 
ed  S.   E.  by   Bean's  land   and  the 
cove,  N.  E.  by  Cocheco  river,  W. 
by  Bean's  land,  land  of  Boyle  and 
of  Hurd,  and  the  road,"  to  which 
was   added   a   clause,   "meaning  to 
convey  all  the  land  I  purchased  of 
S.    D.    Bryant,    L.    Bean,    and    A. 
Pinkham,  referring  to  their  deeds 
for     particulars,"     and     a     further 
clause,  "meaning  to  convey  all  the 
land  set  forth  in  said  deed,  and  no 
more."     To  present  to  the  reader 
the  question  before  the  court,  and 
the  construction  placed  upon  the  de- 
scription, we  take  this  extract  from 
the  language  of  Mr.  Justice  Bell,  in 
delivering  the  opinion  of  the  court : 
"The   plaintiff   contended   that  this 
deed    conveyed   to    Bean    the    land 
described    in    the    three    deeds    re- 
ferred to,  while  the  court  instructed 
the  jury  that  it  conveyed  to  Bean 
only  what  those  three   deeds  con- 
veyed to  Flagg.    It  is,  of  course,  to 
be  kept  in  mind  that  the  only  ques- 
tion   presented    to    the    jury    was, 
whether  this  deed  was  procured  by 
the  defendant  by  a  fraud  practiced 
upon  the  plaintiff,  by  falsely  read- 
ing to  him  the  deed  as  conveying 
one    undivided    half    of    the    land, 
when   the   deed   had  no   such   lan- 
guage.    The  court   was   presenting 
to  the  jury  the  actual  state  of  the 
title  of  Flagg  to  the  land,  and  the 
operation    of    the    deed    upon    that 
interest,  as  ground  for  the  jury  to 


judge  whether  there  was  a  fraud  on 
the  part  of  the  defendant,  or  only 
very  great  ignorance  on  both  sides, 
as  to  the  actual  situation  of  a  very 
complicated  title,  and  as  to  the  ef- 
fect   of    the    deed    upon    it,    from 
which    they    might    infer    that    the 
deed  was  made  in  its  present  form 
merely   by    a   gross   blunder.     The 
question,  of  course,  was.  What  does 
this  deed  in  fact  convey?    The  lan- 
guage would  convey  a  fee  simple 
in  all  the  land  comprised  within  the 
boundaries  set  out  in  the  deed,  un- 
less  its  meaning  is  limited  to  the 
land    conveyed    to    the    grantor    in 
the  three  deedi,  referred  to,  by  the 
clause    'meaning    to    convey,'    etc. 
This  expression  is  twice  used,  and 
if     the     language     following     this 
phrase  in  those  instances  was  found 
in  separate  deeds,  it  would  hardly 
be  understood  to  convey  the  same 
meaning.    In  the  first  instance  it  is, 
'meaning  to  convey  all  the  land  I 
purchased    by    deeds,'    etc.,    and    in 
the  second,  'meaning  to  convey  all 
the  land  set  forth  in  said  deeds  and 
no  more.'     But  the  whole  def;d  is 
to    be    construed    together;    a. id    it 
seems  to  us  to  be  equivalent  to  the 
expression,  'meaning  to  convey  all 
the  land  I  purchased  of  B.,  etc.,  set 
forth  in  their  deeds,  to  which  refer- 
ence is  made  for  particulars,'  etc.; 
and   such  an  expression  would  be 
limited  to  the  land  actually  acquired 
or    obtained    of    those    persons    by 
purchase.     If    the   last   of   the   ex- 
pressions only  was  used,  'meaning 
to  convey  all  the  land  set  forth  in 


CHAP.    XXIX.]  DESCRIPTION.  2021 

a  named  lot  except  fifty  acres  in  the  southeast  corner  followed 
by  the  words,   "known  as  the  Wooldridge  plantation,"  the 
latter  words  are  but  matter  of  general  description,  and  yield 
to  the  previous  definite  and  particular  description.*    A  descrip- 
tion,  "my  homestead   farm  in   Bath,  aforesaid,   that  I  now 
live  on   and   improve,   it  being  the   same  land   conveyed  to 
me  and  one  John  Martin,  by  one  Caleb  Bailey,  by  his  deed 
of  December  2,   1816,  and  the  said  Martin's  half  of  which 
he  conveyed  to  me  by  his  deed  of  December,  19,  1825,"  will 
not  include  a  parcel  of  adjoining  land  conveyed  to  the  grantor 
by  Caleb  Bailey,  in  1819,  though  occupied  with  the  other  as 
one  farm.     By  reference  to  the  deeds  of  1816  and  1825,  the 
grantor  expressly   declared   what   he   understood   his   home- 
stead farm  to  be,^     A  description  was  in  this  form:     "My 
homestead  farm  in  Sanbornton,  and  is  the  same  land  which 
was  conveyed  to  me  by  the  deeds  of  one  George  Whittier, 
and  the  deed  of  one  Reuben  Whittier.     One  of  said  deeds 
from   George  is  dated  October  30,   1825,   containing  about 
twenty  acres,  recorded  lib.   Ill,  fol.  594;  the  other  of  said 
George's  deeds  is  dated  June  12,  1810,*  recorded  lib.  78,  fol. 
859,  containing  thirty  acres.     The  deed  from  said  Reuben  is 
dated  25th  December,  1815,  recorded  lib.  Ill,  fol.  593,  con- 
taining about  seventeen  and  a  half  acres — all  in  lot  No.  24, 
in  the  second  division  of  lots  in  Sanbornton.     For  a  more 

those  deeds,*  etc.,  it  would  not  be  one-half  of  the  land  described,  if 
easy  to  contend  that  it  was  not  the  that  deed,  upon  referring  to  it,  con- 
intention  to  convey  a  fee  simple  in  veys  an  undivided  half  merely.  But 
all  the  lands  described,  if  it  were  taking  the  two  expressions  togeth- 
not  that  two  of  the  deeds  referred  er,  we  think  the  opinion  expressed 
to  describe  'one  undivided  half  of  by  the  court  below,  that  nothing 
the  land,  whose  boundaries  are  set  passed  by  Flagg's  deed  to  Bean  but 
forth ;  and  it  seems  very  clear  that  the  estate  which  he  acquired  by  the 
a  deed  which  describes  an  entire  deds  referred  to,  is  correct." 
tract  of  land  by  its  boundaries,  and  *  Osteen  v.  Wynn  (Ga.)  62  S. 
then  adds,  meaning  to  convey  all  R  Z7  (citing  text.) 
the  land  set  forth  in  such  a  deed,  ^  Barnard  v.  Martin,  5  N,  H.  536. 
and  no  more,  must  be  limited  to 


2022  THE  LAW   OF  DEEDS.  [CHAP.    XXIX, 

particular  description,  reference  may  be  had  to  said  deeds; 
and  the  same  is  my  homestead  farm."  The  court  held  that 
this  description  did  not  include  another  tract  used  as  a  part 
of  the  homestead  in  common  with  those  described  by  refer- 
ence to  the  deed.®  Where  the  land  conveyed  was  described 
as  a  certain  share  of  "about  one  hundred  acres  of  land,  be 
the  same  more  or  less,  with  the  buildings  thereon  standing, 
situate  in  the  town  of  Chelmsford,  in  the  county  of  Middlesex, 
being  the  same  estate  on  which  the  said  Moses  Cheever  now 
lives,  and  which  was  conveyed  by  Benjamin  Melvin  and  Joan- 
na Melvin  to  Dr.  Jacob  Kittridge,  by  deed  dated  the  twenty- 
fifth  day  of  April,  1782,"  and  the  grantee,  as  lessee  and 
otherwise,  had  previously  occupied  the  farm  for  many  years, 
although  the  deed  to  which  reference  was  made  did  not  in- 
clude the  whole  farm,  yet  it  was  held  that  the  title  to  the 
whole  farm  passed  to  the  grantee'  Where  the  lot  conveyed 
is  described  as  "being  twenty  feet  in  front,  and  running  back 
one  hundred  and  ten  feet,"  and  it  is  shown  that  the  lot  has, 
in  fact,  a  frontage  of  thirty  feet,  parol  evidence  is  admissible 
to  show  that  the  portion  sold,  and  intended  to  be  conveyed, 
and  of  which  the  grantee  took  possession,  was  the  portion 
having  a  frontage  of  twenty  feet  on  the  east  side  of  the 
lot."  Defects  in  a  description  of  a  ditch  may  be  disregarded, 
where  it  is  described  both  in  a  deed  and  in  an  action  to  de- 
termine conflicting  claims  to  water,  by  the  same  descriptive 
name  and  where  there  is  a  substantial  concurrence  in  the 
general  particulars  as  to  its  head  and  course  and  evidence 
was  abundant  to  the  effect  that  the  ditch  was  generally  known 
by  this  descriptive  name,  and  there  was  no  evidence  show- 
ing that  any  other  ditch  in  the  county  had  the  same  name. 
"When  property  has  a  descriptive  name,  it  may  be  conveyed 

8  Woodman  V.  Lane,  7  N.  H.  241.  'Melvin  v.  Proprietors  of  Locks, 

In  this  case,  the  court  examined  etc.,  5  Met.  15,  38  Am.  Dec.  384. 
several  cases  bearing  upon  the  point  •  Sikes  v.   Shows,  74  Ala.  382. 

in  question. 


CHAP.    XXIX.]  t)ESCRlPTIOr^.  20^3 

by  that  name,  and  defects  in  other  parts  of  the  description 
may  be  disregarded."  '  If  a  deed  contains  two  descriptions, 
one  general  and  the  latter  particular,  and  if  the  general  is 
certain  and  the  particular  uncertain,  the  general  description 
will  prevail.  Thus,  if  a  tract  of  land  to  be  excepted  from 
a  conveyance  is  described  by  name  and  also  by  a  description 
in  which  the  boundaries  are  uncertain,  the  intent  of  the 
parties,  it  is  manifest,  is  to  except  the  place  actually  named.^ 
Where  a  deed  conveyed  an  undivided  two-thirds  "of  all  the 
lands  known  by  the  name  of  the  Rancho  de  San  Vicente,  lying 
and  being  in  the  county  of  Los  Angeles  and  State  of  Cal- 
ifornia; the  lands  of  said  rancho  being  known  and  described 
as  follows,"  followed  by  a  particular  description  by  courses 
and  distances,  and  this  particular  description  if  adopted,  would 
have  left  out  a  large  part  of  the  rancho,  the  court  held  that 
the  particular  description  was  not  intended  to  be  used  in 
the  sense  of  restriction,  but  that  the  dominant  idea  in  the  mind 
of  the  grantor  when  the  deed  was  made  was  the  rancho  as 
a  whole,  and  not  the  particular  lines  by  which  it  might  be 
described  and  decided  that  the  deed  must  be  construed  as 
conveying  two-thirds  of  the  whole  rancho,  however  erroneous 
the  particular  description  might  be.^*  A  deed  is  not  invalidated 
by  the  inadvertent  use  of  the  word  "diameters"  for  "varas" 
where  the  description  is  of  an  entire  league,  designated  by 
name,  and  the  commencement  comer  is  identified,  as  the  error 
is  a  harmless  one.^  ^ 

§  1041.  Particular  description  uncertain. — There  is 
an  apparent  exception  to  be  noted  in  cases  where  a  general 
description  will  prevail  over  a  particular  one.  These  are 
cases  where  the  particular  description  by  metes  and  bounds 

9  Murray  v.  Tulare  Irrigation  Co.,  ^'^  Haley  v.  Amestoy,  44  Cal.  132. 

120  Cal    311    49  Pac.  563,  52   Pac.  2  Goodson  v.  Fitzgerald,  40  Tex. 

586,  Civ.   App.   619,  90   S.   W.  898. 

1  Martin  v.  Lloyd,  94  Cal.   195. 


2024  THE  LAW   OF  DEEDS.  [CHAP.    XXIX. 

i 

is  so  uncertain  that  it  is  impossible  to  ascertain  by  reference 
to  such  description  the  particular  parcel  of  land  granted  by 
the  deed.'  But,  as  was  aptly  said  by  Mr.  Justice  Bigelow, 
this  is  not  a  case  "of  two  inconsistent  descriptions,  in  which 
the  general  must  yield  to  the  particular,  but  of  an  uncertain 
and  impossible  description,  which  must  be  controlled  by  an 
intelligible  though  general  description."  *  In  the  case  of  a 
deed  describing  the  land  conveyed  as  "the  whole  lot  No.  13, 
containing  five  hundred  acres  by  lot  or  grant,  be  the  same 
more  or  less,  which  lot  was  the  original  right  of  Thomas 
Wallingford,"  it  appeared  that  the  right  of  Wallingford  was 
to  only  four  hundred  acres.  The  court  held  that  the  addition- 
al clause  did  not  restrict  the  effect  of  the  deed  to  the  four 
hundred  acres,  but  that  the  deed  should  be  construed  as  em- 
bracing the  whole  of  the  lot.*  Likewise  in  a  case  where 
land  was  described  as  "all  the  undivided  two-thirds  of  all 
the  lands  known  by  the  name  of  Rancho  de  San  Vicente, 
situate  in  the  county  of  Los  Angeles,  and  State  of  California," 
and  also  by  a  particular  description  which  was  erroneous,  the 
deed,  notwithstanding  the  errors  in  the  particular  descrip- 
tion, was  held  to  convey  two-thirds  of  the  tract  thus  generally 
described.' 

'  Sawyer    v.    Kendall,    10    Cush.  Rep.  436.     In  case  of  doubt  courts 

241.     See  Bott  v.  Burnell,  11  Mass.  incline     to     the     description     most 

163;  Martin  v.  Lloyd,  94  Cal.  195;  favorable  to  the  grantee:    McBride 

Wade  V.  Deray,  50  Cal.  376;  Ray-  v.  Burns  (Tex.)  88  S.  W.  394. 

burn    V.    Winant,    16    Or.    318,    18  *  Sawyer    v.    Kendall,    10    Cush. 

Pac.   Rep.   588;    Barney   v.   Miller,  241. 

18  Iowa,  460;  Jackson  v.  Loomis,  ^  Ela  v.  Card,  2  N.  H.  175,  9  Am. 

18  Johns.   81;   Loomis  v.   Jackson,  Dec.   46. 

19  Johns.  449;  Johnson  v,  Simpson,  ^  Haley  v.  Amestoy,  44  Cal.  132. 
36  N.  H.  91 ;  Adams  v.  Alkire,  20  Where  a  piece  of  land  has  a  well- 
W.  Va.  480;  Hathaway  v.  Power,  known  name,  it  may  be  described 
6  Hill,  453;  Jackson  v.  Clark,  7  by  that  name:  Haley  v.  Amestoy, 
Johns.  217;  Credle  v.  Hays,  88  N.  44  Cal.  132.  See,  also,  Martin  v. 
C.  321 ;  Harkey  v.  Cain,  69  Tex.  Lloyd,  94  Cal.  195,  where  it  is  held 
146,  67  S.  W.  Rep.  637;  Arambula  that  the  description  of  a  place  ex- 
V.  Sullivan,  80  Tex.  615,  16  S.  W.  cepted  by  name  shows  an  intention 


CHAP.    XXIX.]  DESCRIPTION.  2025 

§  1042.  Parol  evidence. — If  the  language  used  in  the 
descriptive  clause  is  uncertain  and  doubtful,  the  practical  con- 
struction given  to  the  deed  by  the  subsequent  acts  of  the  parties 
may  be  shown  by  parol  evidence."'  But  where  it  is  appar- 
ent from  the  face  of  the  deed  that  the  grantor  intended  to 
convey  a  certain  parcel  of  land,  parol  evidence  is  not  ad- 
missible to  show  that  he  intended  to  convey  another  or  ad- 
ditional parcel,  notwithstanding  words  of  general  description, 
taken  alone,  without  comparison  with  the  preceding  particular 
description,  might  seem  to  indicate  this  intention.*  Mr.  Jus- 
tice Hoar  of  Massachusetts,  correctly  states  the  rule :  "Where 
the  terms  are  used  in  a  description  which  are  clear  and  in- 
telligible, the  court  will  put  a  construction  upon  those  tenns, 
and  parol  evidence  will  not  be  admissible  to  control  the  legal 
effect  of  such  description.  But  where  any  part  of  the  descrip- 
tion is  inconsistent  with  the  rest,  and  thus  shown  to  be 
erroneous,  it  may  be  rejected,  and,  when  the  description  given 
is  uncertain  and  ambiguous,  parol  evidence  will  be  admitted 
to  show  to  what  it  truly  applies."*  But  a  description,  in 
which  one  call  is,  "thence  running  easterly  parallel  with  the 
southern  line  of  said  Antelope  ranch,  according  to  the 
survey  of  the  same  made  by  the  United  States  surveyor  gen- 
eral for  said  State,  to  said  Antelope  creek,"  cannot  be  con- 
sidered repugnant  or  ambiguous.  Hence,  it  cannot  be  shown 
by  evidence  aliunde  that  a  straight  line  was  intended  parallel 

to  except  the  actual  place  named,  « Benedict  v.   Gaylord,    11    Cona 
and  not  to  limit  its  actual  bound-  332,  29  Am.  Dec.  299. 
aries   by   an   uncertain    description  » In  Bond  v.   Fay,   12  Allen,  86, 
of  them.  ^-     -^"^    ^^^'    ^^^°'    Waterman    v. 
TLovejoy    v.    Lovett,    124    Mass.  Johnson,    13    Pick.   261;    Truett   v. 
270.    That  extrinsic  evidence  is  ad-  Adams,  66  Cal.  218;  Hardin  County 
missible    where    description   is   un-  v.   Nona  Mills   Co.    (Tex.)    112  S. 
certain    see  King  v.  Samuel,  7  Cal.  W.  822;  Hunton  v.  Moore,  139  N. 
App    55,   93    Pac.   391.     See,   also.  C.  44,  51  S.  E.  787;  Glover  v.  New- 
Hornet  V.  Dumbeck,  39  Ind.  App.  some  (Ga.),  65  S.  E.  64;  Reynolds 
482,  78  N.  E.  691.     See  Lanman  v.  v.  Lawrence   (Ala.)  40  So.  576. 
Crocker,  97  Ind.  163,  49  Am.  Rep. 
437;  Truett  v.  Adams,  66  Cal.  618- 


2026  THE  LAW  OF  DEEDS.  [CHAP.    XXIX, 

with  the  general  course  of  the  southern  Hne  of  the  property 
designated  the  "Antelope  ranch."  While  "parallel  lines"  are 
straight  lines,  according  to  their  mathematical  definition,  yet, 
in  common  language  concerning  boundaries,  this  term  is  fre- 
quently used  to  designate  lines  which  are  not  actually  straight, 
but  are  the  photographs  of  each  other.  In  questions  affecting 
boundaries,  these  words  are,  in  this  sense,  often  used  by 
courts.^  So  parol  evidence  is  not  admissible  to  control  the  de- 
scription,^ nor  to  correct  a  call  in  a  deed  except  in  an  action  to 
correct  a  mistake.' 

§  1043.     Description  applying  to  several  tracts. — Where 

the  description  applies  equally  to  several  tracts,  a  latent  am- 
biguity results,  which  may  be  explained  by  showing  which 
one  of  the  several  tracts  was  claimed  by  the  grantor.*  An 
ambiguity  is  not  created  by  the  words  "being  the  same  land 
owned  and  occupied  by  me"  inserted  after  the  description  by 
metes  and  bounds.^  A  grant  is  not  enlarged  or  limited  by 
a  clause  at  the  end  of  the  description,  "meaning  and  intend- 
ing to  convey  the  same  premises  conveyed  to  me."  ^  If  a 
deed  made  by  an  administrator  conveys  no  title,  to  the  grantee, 
the  latter  conveys  nothing  by  executing  a  deed  "conveying  all 
my  right,  title  and  interest  in  the  estate  of  A,  purchased  by 
me  at  administrator's  sale." ''  Where  a  deed  contains  a 
specific  description  of  the  property  conveyed  and  states  that 
it  is  the  same  land  conveyed  to  the  grantor  which  covered  a 

1  Fratt  V.  Woodward,  32  Cal.  219,  «  Clark  v.  Powers,  45  111.  283. 

91  Am.  Dec.  573.     See,  also,  Hicks  6  Malette  v.  Wright,  120  Ga.  735, 

V.   Coleman,   25   Cal.    143,   85    Am.  48  S.  K  229. 

Dec.  103.  ^  Smith  v.  Sweat,  90  Me.  528,  38 

2  Foster  v.  Carlisle  (Ala.)  48  So.  Atl.   554.     See,   also,   Winn  v.   Co- 
665.  hot,  35  Mass.   (18  Pick.)   553. 

3  Hamilton  v.  Blackburn    (Tex.)  '  O'Connor  v.  Vineyard,  91  Tex. 
95   S.  W.   1094.     See  in  this  con-  488,  44  S.  W.  485. 

nection  also,  Modlin  v.  Roanoke  R. 
&  Lumber  Co.  (N.  C.)  58  S.  E. 
1075. 


CHAP.    XXIX.] 


DESCRIPTION. 


2027 


tract  of  larger  size  and  recites  the  conveyance  to  the  grantee 
of  "all  the  land  conveyed  to  me  by  the  deeds  aforesaid  ex- 
cept such  portions  thereof  as  I  have  heretofore  sold,"  these 
words  are  to  be  construed  not  as  altering  the  description  or 
limiting  the  effect  of  the  prior  granting  clause  of  the  deed, 
but  as  being  a  reference  merely  to  the  claim  of  title  under 
which  the  grantor  holds.' 

§  1044.  Quantity  of  land  enumerated. — In  the  descrip- 
tion of  land  it  is  usual,  after  the  description  by  metes  and 
bounds  or  subdivisions,  to  add  a  clause  stating  that  the  land 
described  contained  so  many  acres.  But  unless  there  is  an 
express  covenant  that  there  is  the  quantity  of  land  mentioned, 
the  clause  as  to  quantity  is  considered  simply  as  a  part  of 
the  description,  and  will  be  rejected  if  it  is  inconsistent  with 
the  actual  area,  when  the  same  is  capable  of  being  ascertained 
by  monuments  and  boundaries.  The  mention  of  the  quantity 
of  land  conveyed  may  aid  in  defining  the  premises,  but  it 
cannot  control   the  rest  of   the  description.^     Neither  party 


8  Dow  V.  Whitney,    147   Mass.   1, 
16  N.  E.  722. 

9  Stanley   v.   Green,   12   Cal.    148; 
Snow   V.    Chapman,    1    Root,    528; 
Ware  v.  Johnson,  66  Mo.  662;  Dal- 
ton    V.    Rust,   22    Tex.    133;    Wad- 
hams  V.   Swan,  109  111.  46;   Miller 
V.    Bentley,    5    Sneed,    671 ;    Arm- 
strong V.  Brownfield,  32  Kan.  116 
Belden    v.    Seymour,    8    Conn.    19 
Ufford   V.   Wilkins,   33   Iowa,    110 
Field    V.    Columbet,    4    Saw.    523 
Marshall  v.   Bompart,   18   Mo.  84 
Clark    V.     Scammon,    62    Me.    47 
Mann  v.  Pearson,  2  Johns.  37 ;  Hall 
V.  Mayhew,  15  Md.  551;  Llewellyn 
V.  Jersey,  11  Mees.  &  W.  183;  Rid- 
dell   V.  Jackson,   14  La.   Ann.    135; 
Commissioners     v.     Thompson,     4 
McCord,    434;    Jackson    v.    Defen- 


dorf ,  1  Caines,  493 ;  Wright  v. 
Wright,  34  Ala.  194;  Doe  ex  dem. 
Phillips  V.  Porter,  3  Ark.  18,  36 
Am.  Dec.  448;  Powell  v.  Clark, 
5  Mass.  355,  4  Am.  Dec.  67 ;  Chand- 
ler V.  McCard,  38  Me.  564;  Large 
V.  Penn.  6  Serg.  &  R.  488;  Pierce 
V.  Faunce,  2>7  Me.  63 ;  Jackson  v. 
Barringer,  IS  Johns.  471 ;  Bratton 
V.  Cla\tson,  3  Strob.  127;  Allen  v. 
Allen,  14  Me.  387;  Dale  v.  Smith, 
1  Del.  Ch.  1,  12  Am.  Dec.  64.  See 
Mann  v.  Pearson,  2  Johns.  Z7 ; 
Hatch  V.  Garza,  22  Tex.  176;  Smith 
V.  Evans,  6  Binn.  102,  6  Am.  Dec. 
436;  Jackson  v.  McConnell,  19 
Wend.  175 ;  Barksdale  v.  Toomer, 
Harp.  290;  Smith  v.  Dodge,  2  N. 
H.  303;  Jennings  v.  Monks,  4  Met. 
(Ky.)   103;  Peay  v.  Briggs,  2  Mill. 


2028  THE  /:a\v  of  deeds.  [chap.  xxix. 

has  a  remedy  against  the  other  for  the  excess  or  deficiency, 
unless  the  difference  is  so  great  as  to  afford  a  presumption 
of  fraud.^  Where  an  owner  of  a  league  of  land,  having  sold 
off  several  tracts,  executed  a  deed  for  the  unsold  balance, 
which  described  it  as  "all  and  singular  a  certain  piece  or 
parcel  of  land  containing  one  thousand  acres,  situated  and 
described  as  follows:  "In  Harris  county,  and  on  Buffalo 
bayou,  adjoining  the  city  of  Houston,  being  the  undivided 
part  of  the  league  granted  to  Allen  C.  Reynolds"— it  was 
held  that  the  deed  conveyed  title  to  the  whole  of  the  unsold 
balance,  although  in  excess  of  the  number  of  acres  mentioned.* 

§  1045.     Intention    that    quantity    shall    control.— But 

the  language  contained  in  the  description  may  be  such  that 
it  is  evident  that  the  parties  intended  to  convey  only  a  speci- 
fied quantity  of  land,  and  in  such  case  no  more  will  pass.  Thus 
a  deed  described  a  piece  of  land  by  boundaries  and  courses 
and  distances,  with  this  restriction:    "Said  tract  to  contain 

98    12   Am.   Dec.  656;   Jackson   v.  man,    113    la.   283,   85    N.   W.   85; 

Sprague     Paine     494;    Perkins    v.  Phillips  v.  Granite  Co.,  123  Ga.  830, 

Webster    2   N    H.   287;   Kruse   v.  51  S.  E.  666;  Kendall  v.  Wells,  126 

Scripps  'll   111.  98;   Petts  v.  Gaw,  Ga.  343,  55  S.  E.  41  (quoting  text)  ; 

15  Pa    St    218;  Harris  v.  Hull,  70  Mayberry  v.  Beck,  71  Kan.  609,  81 

Ga    831;    Luckett   v.    Scruggs,    73  Pac.   191;   Jenkins  v.  Lumber  Co 

Tex   520-  Doyle  v.  Mellen,  15  R.  I.  120  La.   549,  45   So.  435;   Duffield 

523-    Sco'tt   V.    Pettigrew,   72   Tex.  v.   Spence    (Tenn.)    51   S.  W.  492. 

321-    Winans    v.    Cheney,    55    Cal.  Description  by   metes   and   bounds 

567-  Hess  v    Cheney,  83  Ala.  251,  controls  one  by  quantity:     Seeders 

3  So.  Rep.  791 ;  Rand  v.  Cartwright,  v.  Shaw.  200  111.  93,  65  N.  E.  643 ; 

82  Tex.   399,   18  S.   W.   Rep.  794;  Phillips  v.  Granite  Co.,  123  Ga.  830, 

c"'ase    V    Deiter,    106    N.    Y.    548;  51    S.   E.  666. 

Thayer*  V.  Finton,  108  N.  Y.  394;  i  Wadhams  v    Swan,  109  III  46; 

Raymond    v.    Cof=fey,    5    Or.    132;  Kendall  v.  Wells.   126  Ga.  343,  55 

Moran  v.  Lezotte,  54  Mich.  83,  19  S.  E.  41   (quoting  text) 

N  W  Rep.  757 ;  Benton  v.  Horsley,  ^  Hunter  v.  Morse,  49   Tex.  219. 

71    Ga    619-    Andrew   v.   Watkins,  See,    also,    Mayberry    v.    Beck,    71 

26  Fla'  390  7  S   W.  Rep.  876.    And  Kan.  609,  81   Pac.   191 ;   Larson  v. 

see  Hasleton  v.  Dickinson,  51  Iowa,  Goettle,  103  Minn.  272,  114  N.  W. 

244.     Sec,  also,  Dashiel  v.  Harsh-  840. 


CHAP.    XXIX.]  DESCRIPTION.  2029 

just  one  acre,  and  the  distances  shall  be  so  construed."  The 
court  considered  that  tlie  intention  was  clearly  expressed  that 
the  quantity  should  be  one  acre,  and  that  the  distance  should 
be  construed  so  as  to  circumscribe  one  acre  and  no  more, 
holding  that  the  parties  might  contract  so  as  to  suspend  the 
application  of  recognized  rules  of  construction  to  their  deeds.* 
And  where  the  other  terms  of  the  description  are  not  sufficient- 
ly certain,  the  number  of  acres  specified  may  be  an  essential 
part  of  the  description,*  and  there  are  instances  in  which 
the  specified  quantity  of  land  may  be  considered  in  corrobora- 
tion of  other  proof. ^  If  a  contract  at  an  agreed  price  per 
acre  has  been  made  for  the  sale  of  a  tract  of  land,  represented 
as  containing  a  specified  number  of  acres,  and  there  is  a 
deficiency  in  quantity,  a  court  of  equity,  even  after  the  ex- 
ecution of  the  deed  consummating  the  contract  of  purchase, 
will  abate  the  value  of  the  deficiency  at  the  agreed  price 
per  acre  from  the  portion  of  the  purchase  money  remaining 
unpaid.^  But  the  quantity  of  land  named  in  the  deed  will 
control  only  in  the  absence  of  monuments,  courses  and  dis- 
tance,' as  the  call  for  quantity  is  the  less  reliable  and  the 
one  to  which  resort  is  to  be  had  last.     Still  when  no  known 

3  Sanders  v.  Godding,  45  Iowa,  54  Mich.  83,  19  N.  W.  Rep.  757; 
463  Santa    Clara    M.    Assn.    v.    Quick- 

4  Hall  V.  Shotwell,  66  Cal.  379;  silver  M.  Co.,  8  Saw.  330,  17  Fed. 
Kirkland  v.  Way,  3  Rich.  4,  45  Am.  Rep.  657;  Baldwin  v.  Brown,  16 
Dec.  752;  Hostetter  v.  Los  Angeles  N.  Y.  359;  Bell  v.  Sawyer,  32  N.  H. 
T.  Ry.  Co.,  108  Cal.  38;  Ellis  v.  ^2•,  Rioux  v.  Cormier,  75  Wis.  566, 
Harris,  106  N.  C.  395;  bloody  v.  44  N.  W.  Rep.  654.  The  language 
Vondereau,  131  Ga.  521,  62  S.  E.  may  be  such  as  to  make  the  quantity 
821;  Smith  v.  Owens,  63  W.  Va.  the  controlling  element  in  the  de- 
60  59  S.  E.  762.  scription :      Kendall    v.    Wells,    126 

5  McClintock  v.  Rogus,  U  HI.  279.  Ga.  343,  55  S.  E.  41  (citing  text). 
See,  also.  Hicks  v.  Coleman,  25  6  Thompson  v.  Catlett,  24  W.  Va. 
Cal.   122,  85  Am.  Dec.  103;  White  524. 

V.  Gay,  9  N.  H.  126,  31  Am.  Dec.  '  Silver    Creek    Cement     Co.    v. 

224;   Higinbotham  v.   Stoddard,  72  Union  Lime  &  Cement  Co.,  138  Ind. 

N,  Y.  94;  Slack  v.  Dawes,  3  Tex.  297,  35  N.  E.  125,  11  N.  E.  721. 
Civ.  App.   520;   Moran  v.  Lezotte, 


2030  THE  LAW  OF  DEEDS.  [CHAP.    XXIX. 

and  established  boundaries  are  named  as  describing  the  land, 
and  the  deed  contains  no  other  description  sufficiently  cer- 
tain to  define  the  land  intended  to  be  conveyed  the  quantity 
of  land  mentioned  may  be  used  for  the  purpose  of  ascertain- 
ing the  granted  premises.^  And  it  is  proper  to  consider  a 
correspondence  of  quantity  given  by  a  line  with  the  quantity 
mentioned  in  the  deed  or  in  the  approximation  to  such  quantity 
as  tending  to  establish  the  truth  of  such  line.^ 

§  1046.  Words  "more  or  less." — When  land  is  de- 
scribed, and  the  quantity  is  stated  with  the  qualification  "more 
or  less,"  these  words  are  used  as  an  approximate  designation 
of  the  quantity  contained  within  the  boundaries,  and  do  not 
refer  to  the  state  of  the  title.^  Where  a  tract  of  land  originally 
described  as  eight  hundred  acres,  "more  or  less,"  was  con- 
veyed by  several  successive  deeds,  describing  the  land  sim- 
ilarly, but  with  the  omission  of  the  words  "more  or  less," 
and  the  last  purchaser  conveyed  an  undivided  interest  in  it 
to  three  persons,  in  an  aggregate  of  just  eight  hundred  acres, 
and  subsequently  conveyed  all  his  interest  in  the  land,  describ- 
ing it  as  excess  "more  or  less  above  the  eight  hundred  acres 
heretofore  conveyed  by  this  vendor,"   it  was  held  that  the 

8  O'Brien  v.  Clark,  104  Md.  30,  64;  Oakes  v.  De  Lancey,  133  N.  Y. 
64   Atl.   53.  227,   28  Am.    St.   Rep.   628;    Paine 

9  Western  Min.  &  Mfg.  Co.  v.  v.  Upton,  87  N.  Y.  327,  41  Am. 
Peytona  Cannel  Coal  Co.,  8  W.  Rep.  371 ;  Belknap  v.  Sealey,  14  N. 
Va.  406.  See,  also,  Davis  v.  Com-  Y.  143,  67  Am.  Dec.  120;  Dow  v. 
monwealth  Land  &  Lumber  Co.,  141  Jewell,  18  N.  H.  340,  45  Am.  Dec. 
Fed.  711;  Stack  v.  Pepper,  119  N.  371;  Triplett  v.  Allen,  26  Gratt. 
C.  434,  25  S.  E.  961;  Clark  v.  721,  21  Am.  Rep.  320;  Stevens  v. 
Moore,  126  N.  C  1,  35  S.  E.   125.  McKnight,  40  Ohio   St.  341.     The 

1  Williamson  v.  Hall,  62  Mo.  405 ;  words    ordinarily    mean    that    the 

Armstrong  v.  Brownfield,  32   Kan.  grantor  does  not  warrant  the  pre- 

116,    and    cases    cited;    Howell    v.  cise  quantity  of  land  named  in  the 

Merrill,  30  Mich.  283;   McCoun  v.  conveyance:      Kitzman    v.    Carl,    ct 

Delany,  3  Bibb.  46,  6  Am.  Dec.  635 ;  al.,   133  la.  340,   12  A.   &  E.   Ann. 

Clark  V.  Scammon,  62  Me.  47;  Dale  Cas.     296.       See,     also.     Boddy     v. 

V.  Smith,  f  Del  Ch.  1,  12  Am.  Dec  Henry,  126  la.  31,  101  X.  W.  447. 


GHAP.    XXIX.] 


DESCRIPTION. 


2031 


last  grantee  took  any  excess  over  the  eight  hundrd  acres.^  The 
word  "about,"  used  as  quahfying  the  number  of  acres,  means 
simply  a  near  approximation  to  the  number  mentioned  in 
the  deed.^  By  the  use  of  the  words  "more  or  less,"  it  is  under- 
stood that  the  parties  assume  the  risk  of  a  gain  or  a  loss  iu 
the  quantity  of  land  estimated.  But  an  inquiry  into  a  fraud 
which  may  have  been  committed  by  either  party  is  not  preclud- 
ed by  the  use  of  that  term.* 


«Troy  V.  Ellis,  60  Tex.  630. 

'  Stevens  v.  IMcKnight,  40  Ohio 
St.  341. 

4McCoun  V.  Delany,  3  Bibb,  46, 
6  Am.  Dec.  635.  See,  also,  Moore 
V.  Harmon,  142  Ind.  555,  41  N.  E. 
599;  Lane  v.  Parsons,  108  la.  241, 
79  N.  W.  61 ;  Rathke  v.  Tyler  (la.) 
Ill  N.  W.  435;  Early  v.  Long,  89 
Miss.  285,  42  So.  348;  Hendricks 
V.  Vivian,  118  Mo.  App.  417,  94 
S.  W.  318;  Foster  v.  Byrd,  119  Mo. 
App.  168,  96  S.  W.  224 ;  Watson  v. 
Cline  (Tex.)  42  S.  W.  1037.  These 
words  "more  or  less"  have  been 
construed  in  Blaney  v.  Rice,  20 
Pick.  62,  32  Am.  Dec.  204;  Phipps 
v.  Tarpley,  24  Miss.  597;  Tyson  v. 
Hardesty,  29  Md.  305;  Poague  v. 
Allen,  3  Marsh.  J.  J.  421 ;  Shipp  v. 
Swan,  2  Bibb,  82;  Sullivan  v.  Fer- 
guson. 40  Mo.  79;  Baynard  v.  Ed- 
dings,  2  Strob.  374;  Hoffman  v. 
Johnson,  1  Bland,  103;  Brady  v. 
Hennion,  2  Bosw.  528;  Gentry  v. 
Hamilton,  3  Ired.  Eq.  376;  Hunt 
V.  Stull,  3  Md.  Ch.  24;  Nelson 
V.  Matthews,  2  Hen.  &  M.  164, 
3  Am.  Dec.  620;  Davis  v.  Sher- 
man,   7    Gray,    291;    Frederick    v. 


Youngblood,  19  A1&.  680,  54  Am. 
Dec.  209.  Where  the  sale,  however, 
is  by  quantity  as  by  acre  and  not  in 
gross,  it  is  said  the  words  "more 
or  less"  are  to  be  treated  as  words 
of  safety  or  precaution  merely,  and 
intended  to  cover  but  slight  and 
unimportant  inaccuracies.  Rathke 
v.  Tyler  (la.)  Ill  N.  W.  435.  See, 
also,  Cardinal  v.  Hadley,  158  Mass. 
352,  33  N.  E.  575,  35  Am.  St.  Rep. 
492;  Bingham  v.  Madison,  103 
Tenn.  358,  47  L.R.A.  267,  52  S. 
W.  1074.  And  a  mutual  mistake 
as  to  the  location  of  boundary  lines 
which  are  pointed  by  the  vendor 
to  the  vendee  is  sufficient  to  set 
aside  the  contract,  even  though 
there  was  no  actual  fraud  nor  in- 
tentional misrepresentation,  where 
the  vendee  gets  only  about  half  the 
land  contracted  for  and  less  than 
half  in  value :  Bigham  v.  Madi- 
son, 103  Tenn.  358,  47  L.R.A.  267, 
52  S.  W.  1074  (discussing  the  sig- 
nificance of  the  words  "more  or 
less"  fully  and  citing  many  au- 
thorities relative  to  their  construc- 
tion). 


CHAPTER  XXX. 


DEED  SUBJECT  TO  MORTGAGE. 


§ 


§  1047.     Purchase  of  equity  of  re- 
demption merely. 

1048.  Mention    of    mortgage   by 

way  of   description. 

1049.  Contract  to  take  deed  sub- 

ject to  mortgage. 

1050.  Deed    to    mortgagee    sub- 

ject to  mortgage. 

1051.  Effect  of  deed  from  mort- 

gagor to  mortgagee  as 
against  intervening  en- 
cumbrances. 

1052.  Presumption  of   deduction 

of  amount  of  mortgage 
from    consideration. 

1053.  Setting       off       mortgage 

against  purchase  money. 
1053a.  Benefit  of  collateral  secu- 
rity. 

1054.  Sale  of  equity  of  redemp- 

tion on  execution. 

1055.  Parol    evidence    to    show 

grantee  did  not  assume 
mortgage. 

1056.  Purchaser    becomes    prin- 

cipal  debtor. 
1056a.  Purchaser's    title    not    di- 
vested by  nonpayment. 

1057.  Extension  of  time. 

1058.  Release  of   grantee. 

1059.  Request   of   mortgagor   to 

foreclose. 

1060.  View     that     relation     of 

surety    does    not    affect 
mortgagee. 

2032 


1061.  Comments. 

1062.  Purchaser  of  a  part  of  the 
land. 

1063.  Grantee's    defense    against 
mortgage. 

1064.  Part  of  consideration. 

1065.  Purchaser      at      execution 
sale. 

1066.  When    grantee   may   show 
invalidity   of    mortgage. 

1067.  Intention  of  grantee  to  as- 
sume should  be  clear. 

1068.  Intention  to  be  gathered 
from  the  whole  deed. 

1069.  Contemporaneous  agree- 
ment. 

1070.  Implying  obligation  on  part 
of  grantee. 

1071.  Grantee's  liability  for  at- 
torney's fee. 

1072.  Assumption  of  mortgage 
under  contract  of  sale 
when  deed  made  to  an- 
other. 

1073.  Grantee's  verbal  promise  to 
assume. 

1074.  Acceptance  of  deed. 

1075.  Mistake  in  deed. 

1076.  Acceptance  by  agent. 

1077.  Deed  without  grantee's 
knowledge. 

1078.  Grantee's  implied  promise 
to  indemnify  grantor. 

1079.  Extent  of  grantee's  liabil- 
ity. 


CHAP.    XXX.]  DEED  SUBJECT  TO  MORTGAGE. 


2033 


1080.  Release  of  covenant  against      §  1090. 

encumbrances    by    graii-  1091. 

tee's  subsequent  assump- 
tion. 

1081.  When   grantee   is   a   mar-  1092. 

ried  woman. 

1082.  Legislation  in  New  York.  1093. 

1083.  Agreement  for  assumption 

in  unusual  place  in  deed.  1094. 

1084.  Verbal      agreement      that  1095. 

grantor    should    advance 

money.  1096. 

1085.  Fraudulent  representations 

of  grantor  as  to  title. 

1086.  Mistake  in  description.  1097. 

1087.  Intermediate  grant  subject 

to  first  mortgage.  1098. 

1088.  Collusion  of  grantee  with 

the  mortgagee.  1099. 

1089.  Personal  liability  of  grant- 

or. 


In  Pennsylvania. 

Enforcing  grantee's  prom- 
ise before  payment  by 
grantor. 

Discharge  of  mortgage  by 
grantor. 

Release  of  covenant  by 
grantor. 

Rights  of  grantor. 

Deed  to  tenants  in  com- 
mon. 

Notice  of  rights  of  mort- 
gagee from  assumption 
clause  in  deed. 

Grantee's  right  to  deduct 
mortgages. 

Grantee's  purchase  of  out- 
standing title. 

Deed  subject  to  two  mort- 
gages. 


§  1047.  Purchase  of  equity  of  redemption  merely. — A 
grantee  does  not  become  personally  liable  for  the  payment 
of  the  mortgage  debt  by  taking  a  deed  which  is  merely  made 
subject  to  a  mortgage,  as  to  fasten  such  liability  upon  him 
the  deed  must  contain  language  clearly  importing  the  assump- 
tion of  such  an  obligation.  "The  purchaser  of  mortgaged 
•premises  does  not  become  personally  liable  for  the  debt  se- 
cured, unless  there  is  a  special  contract  to  pay  such  encum- 
brance." ^    "It  is  settled  in  this  commonwealth,"  says  Mr.  Jus- 


1  Johnson  v.  Monell,  13  Iowa,  300, 
303;  Dunn  v.  Rodgers,  43  III.  260; 
Strong  v.  Converse,  8  Allen,  557, 
85  Am.  Dec.  732;  Stebbins  v.  Hall, 
29  Barb.  524;  Walker  v.  Goldsmith, 
7  Or.  161;  Hull  v.  Alexander,  26 
Iowa,  569;  Comstock  v.  Hitt,  37 
111.  542;  Weed  Sewing  Machine  Co. 
v.  Emerson,  115  Mass.  554;  Winans 
V.  WiJkie,  41  Mich.  264;  Drury  v. 
Tremont  Improvement  Co..  13  AI- 
Deeds,  Vol.  H.— 128 


len,  168;  Fowler  v.  Fay,  62  111.  375; 
Moore's  Appeal,  88  Pa.  St.  450,  32 
Am.  Rep.  469;  Bumgardner  v.  Al- 
len, 6  Munf.  439;  Murray  v.  Smith, 
1  Duer,  412;  Collins  v.  Rowe,  1 
Abb.  N.  C.  97;  Campbell  v.  Pat- 
terson, 58  Ind.  66;  Tillotson  v. 
Boyd,  4  Sand.  516;  Tanquay  v.  Felt- 
hausen,  45  Wis.  30;  Lewis  v.  Day, 
53  Iowa,  575 ;  Binsse  v.  Paige,  1 
Keyes,  87,  s.  c  1  Abb.  N.  Y.  App. 


2034 


THE  LAW   OF   DEEDS, 


[chap.    XXX. 


tice  Endicott,  of  the  Supreme  Court  of  Massachusetts,  "that 
where  land  is  conveyed  in  terms  subject  to  a  mortgage,  the 
grantee  does  not  undertake  or  become  bound  by  the  mere 
acceptance  of  the  deed  to  pay  the  mortgage  debt.  In  the  ab- 
sence of  other  evidence,  the  deed  shows  that  he  merely  pur- 
chased the  equity  of  redemption.  He  is,  indeed,  interested  in 
Its  payment,  because  it  is  an  encumbrance  upon  the  land  of 
which  he  is  the  owner;  but  he  has  entered  into  no  obligation, 
express  or  implied,  to  pay  it,  and  if  he  parts  with  his  title 
he  no  longer  has  any  interest  in  its  payment."  ^ 


138;  Winans  v.  Wilkie,  41  Mich. 
264;  Belmont  v.  Coman,  22  N.  Y. 
438,  78  Am.  Dec.  213;  Crawford  v. 
Nimmons,  180  111.  143,  54  N.  E. 
209;  Bristol  Sav.  Bank  v.  Stiger, 
86  la.  344,  53  N.  W.  265;  Bank  v. 
Holmes,  43  Colo.  154,  95  Pac.  314, 
16  L.R.A.(N.S.)  470,  127  Am.  St. 
Rep.   108. 

2  In  Fiske  v.  Tolman,  124  Mass. 
254,  26  Am.  Rep.  659.  In  Merriam 
V.  Moore,  90  Pa.  St.  78,  80,  Mr. 
Justice  Paxson,  in  delivering  the 
opinion  of  the  court,  said:  "In 
recent  cases  some  attempts  have 
been  made  to  define  with  as  much 
precision  as  possible  the  mutual  and 
dependent  rights  and  duties  of 
mortgagees,  mortgagors,  the  gran- 
tees of  mortgagors,  and  the  alienees 
of  such  grantees.  (1)  A  convey- 
ance of  land  'under  and  subject'  to 
a  mortgage  executed  by  the  grantor- 
creates,  as  between  themselves,  a 
covenant  of  indemnity  to  the  grant- 
or on  the  part  of  the  grantee.  (2) 
If  the  grantee  alien  by  a  deed  con- 
taining the  same  'under  and  sub- 
ject' clause,  without  more,  the 
alienee  does  not  assume  a  liability 
to  the  mortgagee,  or  undertake  to 
discharge  the  grantee's  covenant  of 


indemnity.  (3)  It  is  competent, 
however,  for  the  mortgagee  to  show 
by  adequate  evidence  that  the 
alienee  has  taken  upon  himself  not 
only  the  grantor's  duty  to  indem- 
nify the  mortgagor,  but  a  personal 
obligation  to  pay  the  mortgage 
debt.  (4)  In  all  cases  arising  be- 
fore the  act  of  12th  of  June,  1878, 
this  adequate  evidence  may  consist 
of  stipulations  in  the  deed,  of  writ- 
ten articles  outside  its  terms,  or  of 
a  verbal  contemporaneous  agree- 
ment between  the  parties.  And  the 
fact  of  such  an  undertaking  may 
be  implied  from  circumstances  at- 
tending and  connected  with  the  con- 
veyance of  the  land :  Moore's  Ap- 
peal, 7  Norris,  450,  32  Am.  Rep. 
469;  Samuel  v.  Peyton,  7  Norris, 
465 ;  and  Thomas  v.  Wiltbank,  6  W. 
N.  C.  477."  And  see,  also,  general- 
ly. Hall  V.  Mobile  &  Montgomery 
Ry.  Co.,  58  Ala.  10 ;  Rourke  v.  Col- 
ton,  4  Bradw.  (111.)  259;  Lawrence 
V.  Towlc,  59  N.  H.  28;  Mclntire 
V.  Parks,  59  N.  H.  258;  Bennett  v. 
Keehn,  57  Wis.  582 ;  Ritchie  v.  Mc- 
Duffie,  62  Iowa,  46;  Guernsey  v. 
Kendall,  55  Vt.  201;  Andreas  v. 
Hubbard,  50  Conn.  351;  Wads- 
^^OTth   V.    Lyon,  93    N.    Y.   201,   45 


CHAP.    XXX.]  DEED  SUBJECT  TO  MORTGAGE. 


2035 


§  1048.     Mention  of  mortgage  by  way  of  description. — 

A  clause  was  inserted  in  a  deed  that  it  was  made  subject  to 
a  certain  mortgage  of  a  certain  amount,  recorded  in  a  speci- 


Am.  Rep.  190 ;  Clark  v.  Fontain,  135 
Mass.  464;   Bowen  v.  Beck,  94  N. 
Y.  86,  46  Am.  Rep.  124;  Dean  v. 
Walker,  107  III.  540,  47  Am.  Rep. 
467;   Carnahan  v.  Tousey,  93  Ind. 
561 ;  Riley  v.  Rice,  40  Ohio  St.  441 ; 
Welling  V.  Ryerson,  94  N.  Y.  98; 
Squier  v.  Shepard,  38  N.  J.  Eq.  331 ; 
Bennett   v.    Bates,   94   N.   Y.   354; 
Thompson  v.  Dearborn,  107  111.  87 ; 
Osborne  v.  Cabell,  11  Va.  462 ;  Hal! 
V.  Morgan,  79   Mo.  47;  Cooper  v. 
Foss,  15  Neb.  515;  George  v.  An- 
drews, 60  Md.  26,  45  Am.  Rep.  706; 
Georgia  Pacific  R.  R.  Co.  v.  Wal- 
ker, 61  Miss.  481 ;  Johnson  v.  Wal- 
ter, 60  Iowa,  315;  Luney  v.  Mead, 
60  Iowa,  469;  Canfield  v.  Shear,  49 
Mich.  313;  Rapp  v.  Stoner,  104  111 
618;  Woodbury  v.  Swan,  58  N.  H 
380;    Chedel   v.    Millard,    13   R.    I 
461;    Bowne   v.    Lynde,   91    N.    Y 
92;  Sparkman  v.  Gove,  44  N.  J.  L. 
252;    Mechanics'    Savings   Bank   v 
Goff,  13  R.  I.  516;  Meech  v.  Ensign 
49    Conn.    191,   44   Am.    Rep.   225 
Carter  v.  Holahan,  92  N.  Y.  498 
Hill  V.   Howell,   36   N.   J.   Eq.  25 
Parker  v.  Jenks,  36  N.  J.  Eq.  398 
Schrack  v.  Shriner,  100  Pa.  St.  451 
Willard  v.  Worshani,  76  Va.  392 
Jones  V.  Higgins,  80  Ky.  409 ;  Forgy 
V.    Merryman,    14    Neb.    513;    Mc- 
Conaghy's    Estate,    13    Phila.    399 
Twitchell   v.    Mears,    8   Biss.    211 
Gafifney  v.   Hicks,   131    Mass.    124 
Hayden  v.  Snow,  9  Biss.  511 ;  Reed 
V.   Paul,   131    Mass.   129;   Cilley   v. 
Fenton,    130    Mass.    323;    Lake    v. 
Tebbetts,    56   Cal.   481;    Muhlig   v. 
Fiske,    131    Mass.    110;    Locke    v. 


Homer,  131  i\Iass.  93,  41  Am.  Rep. 
199 ;  State  v.  Citizens'  Bank,  33  La. 
Ann.  705 ;  Flagg  v.  Geltmacher,  98 
111.  293;  Bassett  v.  Bradley,  48 
Conn.  224;  Follansbee  v.  Johnson, 
28  Minn.  311;  Dunning  v.  Leavitt, 
85  N.  Y.  30,  39  Am.  Rep.  617 ;  Fire- 
man's Ins.  Co.  v.  Wilkinson,  35  N. 
J.  Eq.  160;  Hosmer  v.  Campbell, 
98  111.  572;  Albany  City  Savings 
Institution  v.  Burdick,  87  N.  Y.  40; 
Manhattan  Life  Ins.  Co.  v.  Craw- 
ford, 9  Abb.  N.  C.  365;  Taylor  v. 
Mayer,  93  Pa.  St.  42;  Gilbert  v. 
Sanderson,  56  Iowa,  349,  41  Am. 
Rep.  103;  Vreeland  v.  Van  Blarcom, 
35  N.  J.  Eq.  530 ;  Laing  v.  Byrne, 
34  N.  J.  Eq.  52;  Moore's  Estate, 
12  Phila.  104;  Mahoney  v.  Mack- 
ubin,  54  Md.  268;  Jones  v.  Parks, 
78  Ind.  537;  Figart  v.  Halderman, 
75  Ind.  565;  Dirks  v.  Humbird,  54 
I\Id.  399 ;  Talburt  v.  Berkshire  Life 
Ins.  Co.,  80  Ind.  434;  Fenton  v. 
Lord,  128  Mass.  466;  Townsend 
Savings  Bank  v.  Munson,  47  Conn. 
390;  Risk  v.  Hoffman,  69  Ind.  137; 
Erlinger  v.  Boul,  7  111.  App.  40; 
Fitzgerald  v.  Barker,  70  Mo.  685; 
Lappen  v.  Gill,  129  Mass.  349;  Cool- 
idge  V.  Smith,  129  Mass.  554;  Whar- 
ton V.  Moore,  84  N.  C.  479,  37  Am. 
Rep.  627 ;  Judson  v.  Dada,  79  N.  Y. 
Zn;  Zabriskie  v.  Salter,  80  N.  Y. 
555;  Pardee  v.  Treat,  82  N.  Y. 
385;  Fuller  v.  Lamar,  53  Iowa,  477; 
Hopkins  V.  Woolley,  81  N.  Y.  11% 
Coles  V.  Appleby,  22  Hun,  72; 
Deyermand  v.  Chamberlin,  22  Hun, 
110;  Unger  v.  Smith,  44  Mich.  22; 
Hall   V.    Edwards,   43    Mich.   473; 


2036 


THE  LAW  OF  DEEDS. 


[chap.    XXX. 


fied  book  and  page  in  the  volumes  of  records.  A  covenant  was 
also  inserted  that  the  premises  "are  free  from  all  encumbrances 
except  as  aforesaid."  Interest  was  due  on  the  mortgage  at 
the  time  of  the  execution  of  the  conveyance,  and  the  grantee 
was  afterward,  for  the  purpose  of  preventing  a  foreclosure  of 
the  mortgage,  compelled  to  pay  this  interest.  The  court  held 
that  the  principal  and  interest  constituted  a  single  encumbrance, 
which  was  excepted  out  of  the  grantor's  covenant,  taking 
the  view  that  the  mention  in  the  deed  of  the  mortgage,  and 
the  reference  to  the  book  and  page  of  record,  were  only  by 
way  of  description  and  identification  of  the  mortgage,  and 
implied  no  covenant  on  the  grantor  as  to  the  amount  due.^ 
Accordingly,  where  a  deed,  after  describing  the  land  conveyed, " 
recited  that  it  was  subject  to  an  existing  mortgage,  and  con- 
tained a  covenant  that  it  was  free  from  incumbrances,  it  was 


O'Neill  V.  Clark,  33  N.  J.  Eq.  444; 
Wharton  v.  Moore,  84  N.  C.  479, 
37  Am.  Rep.  627;  Merriman  v. 
Moore,  90  Pa.  St.  78;  Scionneaux 
V.  Waguespack,  32  La.  Ann.  283; 
Medsker  v.  Parker,  70  Ind.  509; 
Layman  v.  Willard,  7  111.  App.  183; 
Logan  V.  Smith,  70  Ind.  597 ;  Klein 
V.  Isaacs,  8  Mo.  App.  568;  Booth 
V.  Connecticut  Mut.  Life  Ins.  Co., 
43  Mich.  299;  Strohauer  v.  Voltz, 
42  Mich.  444;  Urquhart  v.  Brayton, 
12  R.  I.  169;  Delaware  and  Hudson 
Canal  Co.  v.  Bonnell,  46  Conn.  9; 
Monarch  Coal  etc.  Co.  v.  Hand,  99 
111.  App.  322  (aff'd  in  197  111.  288, 
64  N.  E.  381)  Landau  v.  Cottrill, 
59  Mo.  308,  60  S.  W.  64;  McNaugh- 
ton  V.  Burke,  63  Neb.  704,  89  N. 
W.  274. 

^Shanahan  v.  Perry,  130  Mass. 
460.  In  that  case  the  clause  re- 
ferring to  the  mortgage  was  as  fol- 
lows: "This  conveyance  is  made 
subject    to    a    mortgage    deed    of 


thirty-five  hundred  dollars  from 
said  Mary  E.  Schofield  to  Seth 
Clarke,  of  Salisbury,  recorded  with 
Middlesex  Deeds,  South  District, 
lib.  1421,  fol.  64."  A  statement  in 
a  deed  that  it  is  made  subject  to  a 
mortgage  may  give  notice  of  the 
mortgage,  but  the  recital  must  be 
sufficient  to  make  it  the  duty  of  the 
purchaser  to  inquire  and  to  lead  to 
the  discovery  of  the  mortgage. 
Where  the  mortgage  is  not  record- 
ed, the  recital  must  be  sufficiently 
definite  to  put  the  purchaser  in  a 
way  of  discovering  the  unrecorded 
mortgage:  McCrea  v.  Newman,  46 
N.  J.  Eq.  473,  19  Atl.  Rep.  198. 
Wlien  the  deed  does  not  sufficiently 
identify  the  mortgage,  its  identity 
may  be  shown  by  parol  evidence : 
New  York  L.  Ins.  Co.  v.  Aitkin,  125 
N.  Y.  660;  Dodge  v.  Porter,  18 
Barb.  193;  Jackson  V.  Clark,  7 
Johns.  214;  Loomis  v.  Jackson,  19 
Johns.  449. 


CHAP.    XXX.]  DEED  SUBJECT  TO  MORTGAGE.  2037 

held  that  the  land  was  sold  subject  to  the  mortgage,  and  the 
warranty  referred  to  the  estate  thus  qualified.* 

§  1049.     Contract  to  take  deed  subject  to  mortgage. — 

Where  a  person  enters  into  a  contract  for  the  purchase  of  a 
piece  of  real  estate  subject  to  a  certain  mortgage,  he  may  re- 
fuse to  accept  a  deed  in  which  a  clause  is  inserted,  that 
he  assumes  the  payment  of  such  mortgage.^  A  agreed 
to  sell  and  convey  to  B  certain  premises  subject  to  certain 
mortgages  thereon,  and  B  assigned  this  contract  to  C.  Subse- 
quently A  executed  a  deed  to  C,  which  contained  a  clause  that 
C  assumed  and  agreed  to  pay  said  mortgages.  C,  without 
knowing  that  the  deed  contained  this  clause,  but  supposing 
that  it,  in  this  matter  followed  the  contract,  accepted  the  deed 
and  put  it  on  record.  This  clause  was  inserted  in  the  deed 
without  the  knowledge  or  consent  of  A.  The  court  held  that 
the  insertion  of  this  clause  in  the  deed  was  a  fraud  upon  B, 
and  that  the  deed  might  be  reformed  by  striking  out  this 

*  Johnson  v.  Nichols,  105  la.  122,  sumption  clause  until  long  after  the 

74  N.  W.  750;  Jones  on  Real  Prop-  deed  had  been  recorded.    To  justify 

erty,  Sec.  855.  a  court  in  imposing  such  an  obliga- 

6  Lewis  V.  Day,  S3  Iowa,  575 ;  tion,  which  it  must  be  said  is  an 
Manhattan  Life  Ins.  Co.  v.  Craw-  unusual  one  in  the  purchase  of 
ford,  9  Abb.  N,  C.  365.  In  the  lat-  property,  very  satisfactory  evidence 
ter  case  the  court  held  that  a  find-  should  be  given;  indeed,  so  satis- 
ing  that  the  grantee  accepted  a  deed  factory  as  to  leave  no  doubt  of  its 
and  assumed  the  payment  of  amort-  propriety;  and  when  the  deed  con- 
gage  therein  mentioned  was  not  taining  it  is  placed  on  record,  with- 
sustained  by  the  evidence,  and  said :  out  having  been  exhibited  to  the 
"The  assumption  clause  in  the  grantee,  the  proof  should  be  clear, 
mortgage  is  in  direct  contravention  positive,  and  beyond  all  question 
of  the  express  terms  of  the  agree-  that  it  was  authorized.  Any  other 
ment  itself.  The  deed  containing  rule  would  place  any  citizen  at  the 
it,  it  is  clear  from  the  evidence,  was  mercy  of  a  mortgagor  who  chose 
not  delivered  to  Mr.  Crawford  per-  to  reheve  himself  of  a  burden  which 
sonally,  and  the  fair  inference  from  he  did  not  wish  to  bear,  and  would 
the  testimony  is  that  he  knew  noth-  become,  in  that  way,  a  vehicle  of 
ing  about  the  existence  of  the  as-  great  injustice  and  oppression." 


20,38 


THE  LAW  OF  DEEDS. 


[chap.    XXX. 


clause."  The  grantee  is  entitled  to  have  the  deed  reformed 
in  such  a  case  unless  an  estoppel  has  arisen  in  favor  of  a 
third  party.  But  it  is  held  that  where  after  the  purchase  of 
a  mortgage,  the  premises  are  conveyed  in  accordance  with  a 
previous  contract  of  this  kind,  subject  to  the  mortgage,  and 
the  deed  contains  a  clause  by  which  the  grantee  assumes  and 
covenants  to  pay  such  mortgage,  the  grantee  is  not  estopped 
from  insisting  as  against  such  purchaser  of  the  mortgage  that 
the  covenant  places  no  liability  upon  him.'  A  contract  of  pur- 
chase provided  that  the  purchasers  were  to  take  the  property 
subject  to  a  mortgage,  but  in  the  deed  given  to  them  there 
was  a  clause  stating  that  they  assumed  the  payment  of  the 
mortgage.  In  a  foreclosure  suit,  judgment  on  this  covenant 
was  rendered  against  them  for  a  deficiency.  They  were  unable 
to  find  the  contract  at  the  time  they  were  made  parties  to  the 


«  Kilmer  v.  Smith,  11  N.  Y.  226, 
IZ  Am.  Rep.  613.  Danforth,  J.,  in 
delivering  the  opinion  of  the  court, 
said:  "The  deed  was  to  be  drawn 
in  pursuance  of  the  contract,  and 
to  carry  out  the  bargain  therein  ex- 
pressed. It  is  plain  that  the  deed 
goes  much  beyond  the  contract,  and 
imposes  upon  the  plaintiff  an  obli- 
gation not  suggested  or  warranted 
by  the  terms  of  the  agreement.  It 
is  also  apparent  from  the  contract 
that  at  the  time  of  its  execution 
both  parties  understood  the  dif- 
ference between  a  conveyance,  sub- 
ject to  a  mortgage,  and  one  with 
an  agreement  to  assume  and  pay 
the  mortgage.  To  warrant  the  im- 
position of  such  an  obligation  upon 
the  plaintiff,  required  a  new  agree- 
ment, or  at  least  an  assent  on  his 
part.  .  .  .  The  case  is  not  to 
be  regarded  as  one  of  mutual  mis- 
understanding or  mistake,  but  rather 
as  a  case  where  one  party  deliber- 


ately inserted  in  a  deed,  a  covenant 
tending  to  his  own  advantage  and 
another's  prejudice,  and  the  latter, 
in  ignorance  that  the  instrument 
contains  the  covenant,  accepts  it  as 
in  fulfillment  of  a  contract  which 
requires  no  such  stipulation.  The 
denial  of  relief  in  such  a  case  would 
be  at  variance  with  long-established 
doctrines  of  courts  of  equity,  and  a 
reproach  to  the  law  itself :  Story 
Eq.  Jur.  vol.  1,  §  138  c.  It  has 
therefore  been  held  that  the  ignor- 
ant party  is  entitled  to  relief,  not- 
withstanding the  other  acted  ad- 
visedly and  upon  full  information, 
for  that  being  admitted,  there  is 
fraud:  Welles  v.  Yates,  44  N.  Y. 
525;  Botsford  v.  McLean,  45  Barb. 
478;  affirmed  by  Court  of  Appeals, 
May,  1870;  Rider  v.  Powell,  28  N. 
Y.    310." 

7  Real  Estate  Trust  Co.  v.  Balch, 
45  N.  Y.  Sup.  Ct.  (13  Jones  &  S.) 
52a 


CHAP.    XXX.]  DEED  SUBJECT  TO  MORTGAGE.  2039 

foreclosure  suit,  and  not  until  some  time  after  judgment  did 
they  discover  by  the  deed  that  they  were  made  to  assume  the 
mortgage,  the  deed  having  been  drawn  without  their  in- 
spection. They  permitted  the  foreclosure  suit  to  go  by  default. 
The  contract  of  purchase  was  afterward  discovered,  and  the 
court  held  that  they  were  entitled  to  ask  to  have  the  judgment 
opened,  and  to  seek  permission  to  come  in  and  defend.' 

§  1050.     Deed  to  mortgagee  subject  to  mortgage. — A 

deed  of  the  mortgaged  premises  to  the  mortgagee  subject  to 
the  mortgage,  merges  the  mortgage,  and  thus  discharges  the 
mortgage  debt.  A  mortgagor  executed  a  deed  for  a  tract  of 
land,  which  was  subject  to  a  mortgage,  the  grantee  assuming 
and  agreeing  to  pay  the  mortgage.  Subsequently  the  grantee 
conveyed  the  land  to  the  mortgagee  by  a  deed,  in  which  it  was 
recited  that  the  deed  was  subject  to  the  mortgage.  The  court 
held  that  thereby  a  merger  of  the  mortgage  resulted,  and  that 
although  the  value  of  the  land  at  the  time  of  the  execution 
of  the  last  deed  was  less  than  the  amount  of  the  mortgage, 
still  the  mortgagee  could  not  maintain  an  action  against  the 
mortgagor  on  the  mortgage  note.^  Where  the  holder  of  the 
mortgage  takes  a  conveyance  of  the  mortgaged  land,  and 
afterwards  conveys  the  land  with  full  covenants,  the  mortgage 
is  discharged  by  the  merger.^  But  if  it  is  the  intention  that 
the  lien  of  the  mortgage  shall  not  merge  in  the  legal  title, 
it  is  said  no  merger  occurs  although  the  mortgagee  becomes 
owner  of  the  fee.'' 

8  Trustees  of  the  Northern  Dis-  N.   W.   250;    Chase   Nat.    Bank   v. 

pensary  of  New  York  v.  Merriam,  Hastings,   20   Wash.    433,    55    Pac. 

59  Barb.  226.     See,  also.  Waring  v.  574  (where  the  grantee  assigned  the 

Somborn,  82  N.  Y.  604 ;  Deyermand  notes    secured   before   their   matu- 

V.  Chambedin,  22  Hun,  110.  rity). 

0  Dickason  v.  Williams,  129  Mass.  ^  Pearson  v.  Bailey,  180  Mass.  229, 

182,  37  Am.   Rep.  316.     See,   also,  62  N.  E.  265. 

Wyatt-Bullard      Lumber      Co.      v.  2Wickersham    v.    Reeves,    1    la. 

Bourke    55  Neb.  9,  75  N.  W.  241 ;  413 ;    Woodward    v.    Davis,    53    la. 

Ames   V.    Miller,   65    Neb.   204,   91  694,  6  N.  W.  74;  Quimby  v.  Wil- 


2040  THE  LAW  OF  DEEDS.  [CHAP.    XXX. 

§  1051.  Effect  of  deed  from  mortgagor  to  mortgagee 
as  against  intervening  encumbrances. — The  technical 
doctrine  of  merger  will  not  be  applied  where  the  intention 
or  the  just  interests  of  the  party  demand  that  the  encumbrance 
should  still  continue  subsisting.  A  and  B  mortgaged  certain 
lots  which  they  held  in  severalty  to  C,  to  secure  the  payment 
of  a  note.  C  was  indebted  to  D,  and  assigned  to  the  latter 
the  note  and  mortgage  as  collateral  security  for  his  indebted- 
ness. Subsequently,  A  executed  a  mortgage  upon  his  part  of 
the  same  lots  to  E,  to  secure  a  debt  due  to  E  from  A  and  B. 
Still  later,  A  and  B  conveyed  the  lots  to  C  by  a  warranty  deed, 
which  was  expressed  to  be  subject  to  the  mortgage  of  E,  but 
it  contained  no  clause  obligating  the  grantee  to  assume  or  dis- 
charge such  mortgage.  It  was  held  that  the  first  mortgage 
was  not  merged  in  the  fee,  by  the  deed  from  the  mortgagors 
to  C,  so  far  as  the  rights  of  C  were  involved;  and  that,  at  a 
sale  upon  foreclosure,  the  sum  due  upon  the  mortgage  to  C, 
being  the  prior  lien,  should  be  paid  first,  and  what  remained 
after  paying  the  first  mortgage  should  be  applied  to  the  second, 
and  the  surplus  remaining  after  the  payment  of  both  mort- 
gages, if  any,  should  be  paid  to  C  And  where  there  is  a  pur- 
chase of  the  equity  of  redemption  by  the  mortgagee,  there  is 

liams,  67  N.  H.  489,  41  Atl.  862,  68  ties,  and  a  variety  of  other  circum- 
Am.  St.  Rep.  685.  See,  also.  Bush  stances:  15  Am.  &  Eng.  of  Law, 
V.  Herring,  113  la.  158,  8i  N.  W.  1st  ed.  314.  But  'a  merger  will 
1036.  In  Forthman  v.  Deters,  206  be  prevented  by  equity  only,  how- 
Ill.  159,  69  N.  E.  97,  99  Am.  St.  ever,  for  the  purpose  of  promoting 
Rep.  145,  it  is  said:  "It  is  well  substantial  justice;  it  will  not  pre- 
settled  that,  at  law,  when  a  greater  vent  a  merger,  where  such  preven- 
or  lesser,  or  a  legal  and  equitable  tion  would  result  in  carrying  a 
estate  coincide  in  the  same  person,  fraud  or  other  unconscientious 
the  lesser,  or  the  equitable  estate,  wrong  into  effect.'" 
is  immediately  merged  and  an-  ^  Fowler  v.  Fay,  62  111.  375.  See, 
nihilated:  15  Am.  &  Eng.  Ency.  of  also,  Hines  v.  Ward,  121  Cal.  115. 
Law,  1st  ed.  314.  It  is  true  that  53  Pac.  427;  Wyatt-Bullard  Lum- 
the  question,  whether  or  not  a  ber  Co.  v.  Bourke,  55  Neb.  9,  75 
m.erger  takes  place  in  equity,  de-  N.  W.  241;  Title  Guarantee  Co.  v. 
pends  upon  the  intention  of  the  par-  Wrenn,  35  Ore.  62,  56  Pac.  271,  76 


CHAP.    XXX.]  DEED  SUBJECT  TO  MORTGAGE.  2041 

no  merger  unless  no  injustice  results  therefrom  or  such  merger 
is  the  wish  of  the  mortgagee.*  But  if  the  mortgaged  premises 
are  purchased  by  a  senior  mortgagee,  and  he  undertakes  to 
pay  off  a  junior  mortgage,  deducting  the  amount  of  such 
mortgage  from  the  price  of  the  land,  then  the  junior  mortgage 
is  entitled  to  priority  over  the  senior.^ 

§  1052.  Presumption  of  deduction  of  amount  of  mort- 
gage from  consideration. — While,  as  a  general  proposition, 
the  taking  of  a  deed  subject  to  a  mortgage  imposes  no  per- 
sonal liability  on  the  grantee,  it  raises  the  presumption  that 
the  grantee  has  purchased  the  property  for  what  it  was  worth, 
less  the  amount  of  the  encumbrances  upon  it.  "The  fair  in- 
ference is,  that  the  purchaser  does  not  pay  the  vendor  the  full 
value  of  the  property,  but  that  the  amount  of  the  mortgage 
debt  is  reserved  in  his  hands,  as  so  much  purchase  money  for 
the  purpose  of  discharging  the  lien.  In  such  case  the  land 
conveyed  is  as  effectually  charged  with  the  amount  of  the 
mortgage  as  if  the  purchaser  had  expressly  assumed  its  pay- 
ment. As  between  the  vendor  and  the  purchaser  of  the  equity 
of  redemption,  the  land  is  the  primary  fund  for  the  liquida- 
tion of  the  encumbrance."  ^     A  mortgage  was  made  upon 

Am.  St.  Rep.  454;  Shattuck  v.  Bel-  ment  made  by  the  mortgagor  for 

knap   Bank,  63    Kan.   443,  65    Pac.  his  release  will  not  be  treated  as  a 

643;  Fitch  v.  Applegate,  24  Wash.  payment  in  partial   satisfaction   of 

26,  64  Pac.  147 ;  Gilchrist  v.  Foxen,  the    mortgage :     Osborn     v.     Wil- 

95  Wis.  428,  70  N.  W.  585;  Moore  liams,   82   Iowa,   456. 
V.  Olive,  114  la.  650,  87  N.  W.  720.  ^Gayle  v.  Wilson,  30  Gratt.  166; 

*  See  Gibbs  v.  Johnson,  104  Mich.  s.  c.  5  Reporter,  667,  per  Staples, 

120,  62  N.  W.  145 ;  Keith  v.  Wheel-  J.     To  render  the  grantee  person- 

er,   159   Mass.   161,  34  N.   E.   174;  ally  liable,  he  must  have  assumed 

Beacham  v.  Gurney,  91  la.  621,  60  the    mortgage    debt;    retaining    the 

N.    W,   187    (holding  merger   took  amount  of  the  mortgage  from  the 

place    where    agreement    was    that  purchase    price    is    not    sufficient: 

mortgage    should    be    satisfied).  Granger    v.    Roll    (S.    D.,    Apr.    3, 

6  Fowler  v.  Fay,  62  111.  375.     A  1895),  62  N.  W.  970.     Where  the 

mortgagor  may  obtain  his  personal  purchaser    retains    the    amount  •  of 

release  from  the  debt,  and  a  pay-  the  mortgage  debt   from   the  con- 


2042  •      THE  LAW  OF   DEEDS.  [CHAP.    XXX 

certain  real  estate  to  a  bank,  and  afterward  the  mortgagors 
made  an  assignment  for  the  benefit  of  their  creditors.  The 
bank  obtained  a  decree  of  foreclosure,  making  the  assignee  a 
party  to  the  suit.  The  assignee  believing  that  he  could  not 
realize  anything  from  the  property,  and  desiring  to  enable  the 
bank  to  obtain  control  of  the  property  at  a  date  earlier  than 
could  be  done  under  the  foreclosure  proceedings,  proposed  to 
certain  officers  of  the  bank  to  offer  the  property  at  public  sale, 
on  condition  that  assurance  be  given  to  him  that  a  sum  would 
be  bid  sufficiently  large  to  pay  the  expenses  of  the  advertise- 
ment and  sale.  The  bank  accepted  this  proposal,  and  the  prop- 
erty was  accordingly  advertised  for  sale,  subject  to  the  mort- 
gage and  decree  held  by  the  bank.  One  of  the  trustees,  acting 
for  the  bank,  bid  twenty  dollars  at  the  sale,  the  property  was 
sold  to  him,  and  the  assignee  executed  a  deed  to  him  therefor. 
The  bank  paid  the  amount  of  the  bid  and  the  trustee  to 
whom  the  deed  was  made  executed  a  declaration  of  trust, 
stating  that  he  held  the  property  conveyed  to  him  in  trust 
for  the  bank.  The  property  was  afterward  sold  under  the 
decree  of  foreclosure,  leaving  a  deficiency  of  several  thousand 
dollars.  The  bank  thereupon  gave  the  assignee  notice  that  it 
claimed  that  the  deficiency  should  be  paid  out  of  assets  in 
his  hands.  On  the  petition  of  the  assignee  an  order  was  made 
satisfying  the  decree,  on  the  ground  that  the  assignee,  in  his 
dealings  with  the  bank,  was  authorized  to  suppose  that  it,  by 
taking  the  deed  to  the  property,  would  have  no  further  claim 
against  him.' 

§  1053.  Setting  off  mortgage  against  purchase  money. 
— In  the  absence  of  a  special  contract  or  some  special  cir- 
cumstances attending  the  transaction,  a  purchaser  who  accepts 

tract  price  he  is  presumed  to  have  gel  v.  Borland,  191  IlL  107,  60  N.  K 

assumed  payment  of  the  mortgage :  863. 

Bristol  etc.  Bank  v.   Stiger,  86  la.  '  East     Saginaw     Sav.    Bank    v. 

344,  53  N.  W.  265.    See,  also,  in  Re  Grant,  41  Mich.  101. 

May,  218  Pa,  64,  67  AtL  120;  Sie- 


CtlAP,    XXX.]  DEED  SUBJECT  TO  MORTGAGE.  2043 

a  deed  without  covenants  takes  the  land  charged  with  the 
mortgage  debt,  and  cannot  keep  it  ahve  by  taking  an  assign- 
ment of  it  to  himself,  and  claim  the  right  to  set  it  off  against 
the  balance  of  the  purchase  price  he  may  still  owe  his  grantor.' 

§  1053a.  Benefit  of  collateral  security. — A  purchaser 
subject  to  a  mortgage  cannot  claim  the  benefit  of  collateral 
security  obtained  by  the  mortgagee  from  the  vendor  after 
the  execution  of  the  mortgage,  as  the  land  is  the  primary  fund 
for  the  payment  of  the  debt,  and  the  purchaser  is  not  in- 
terested in  other  security  afterward  taken,  but  not  constituting 
a  part  of  the  original  transaction.^  The  purchaser  will  not  be 
allowed  to  share  in  other  securities  held  by  the  mortgagee.^ 
Where  a  deed  is  made  to  a  trustee  reciting  that  he  assumes 
a  described  mortgage,  and  he  holds  the  title  for  the  benefit 
of  others  who  paid  the  consideration,  each  beneficiary,  in  case 
of  a  deficiency,  is  liable  in  proportion  to  his  separate  interest.^ 

§  1054.     Sale  of  equity  of  redemption  on  execution. — 

When  the  equity  of  redemption  is  sold  on  execution,  the 
purchaser  is  subrogated  to  all  the  rights,  and  becomes  subject 
to  all  the  disabilities  of  the  mortgagor.  The  purchaser  of 
the  equity  of  redemption  takes  the  land  with  the  paramount 
lien  of  the  mortgage  resting  upon  it,  the  mortgage  continuing 
to  be  as  valid  and  operative  as  a  security  as  it  did  when  the 

8  Atherton  V.  Toney,  43  Ind.  211;  Ind.   386.      See,   also,    Dickason   v. 

Bunch    V.    Grave,     111    Ind.    351.  Williams,   129   Mass.    182,   37  Am 

When    a   suit    is   brought    upon    a  Rep.  316;  Wedge  v.  Moore,  6  Cush. 

promissory  note,  given  to  secure  the  8,    10;    Jumel    v.    Jumel,    7    Paige, 

price  of  land  which  the  payee  had  591;    Spengler  v.    Snapp,   5   Leigh, 

agreed  to  convey  to  the  maker  by  478;  Eaton  v.  Simonds,  14  Pick.  98. 

a  quitclaim  deed,  it  is  not  a  good  ^  Brewer  v.  Staples,  3  Sandf.  Ch. 

answer    that    the    land,    after    the  579. 

execution    of    the    note,    had    been  l  Stevens    v.    Church,    41    Conn, 

sold   to   discharge    a   lien   upon    it,  369. 

which  existed  at  the  time  of  mak-  2  Reynolds  v.  Dietz,  34  Neb.  265 ; 

ing  the  note :  Shuler  v.  Hardin,  25  Bear  v.  Koeningstein,  16  Neb.  65. 


2044 


THE  LAW  OF  DEEDS. 


[chap.    XXX. 


equity  of  redemption  was  in  the  mortgagor.  The  land  is  the 
primary  fund  for  the  payment  of  the  mortgage  debt,  and  the 
purchaser  cannot  compel  the  mortgagor  to  pay  it  off.^  The 
purchaser  cannot  contest  the  validity  of  the  mortgage,  and 
hold  the  estate  free  from  encumbrances  by  proving  that  the 
mortgage  was  fraudulent.*  By  taking  the  property  subject 
to  the  mortgage,  the  purchaser  is  as  much  estopped  to  deny 
it  as  if  there  had  been  a  recital  to  that  effect  in  his  deed.* 
The  purchaser  does  not  acquire  any  interest  in  other  se- 
curities held  by  the  mortgagee,  and  the  principle  as  to  mar- 
shaling securities  does  not  apply  to  the  case  of  a  mortgagee 
and  a  subsequent  purchaser  of  the  equity  of  redemption.^ 


3  Lovelace  v.  Webb,  62  Ala.  271; 
Russell  V.  Allen,  10  Paige,  249; 
Vanderkemp,  v.  Shelton,  11  Paige, 
28.  See,  also,  Heyer  v.  Prayn,  7 
Paige,  470,  34  Am.  Dec.  355;  Funk 
V.  Reynolds,  33  III.  495;  Tice  v. 
Annin,  2  Johns.  Ch.  128;  Steph- 
ens V.  Church,  41  Conn.  369. 

4  Russell  V.  Dudley,  3  Met.  147; 
Lord  V.  Sill,  23  Conn.  319;  Dela- 
ware and  Hudson  Canal  Co.  v. 
Bonnell,  46  Conn.  9;  Waterman  v. 
Curtis,  26   Conn.  241, 

s  Russell  V.  Dudley,  3  Met.  147. 
In  that  case  Chief  Justice  Shaw 
said :  "The  purchase  money  must 
be  understood  to  be  the  value  of 
the  estate,  over  and  above  the  sum 
for  which  it  is  mortgaged.  If  he 
could  afterward  avoid  that  mort- 
gage, and  hold  the  whole  estate, 
he  might  get  it  for  a  very  inade- 
quate consideration;  he  would  get 
what  the  officer  never  intended  to 
sell,  to  the  manifest  injury  of  the 
debtor  and  perhaps  of  the  cred- 
itor. It  would  be  injurious  to  the 
debtor,  by  taking  the  whole  of  his 
estate  by  force  of  a  legal  proceed- 


ing intended  to  convey  to  him  the 
balance  of  the  value  of  the  es- 
tate, after  paying  the  mortgage 
debt,  leaving  the  debtor  still  per- 
sonally liable  for  that  debt.  It 
would  be  injurious  to  the  creditor 
if  the  actual  proceeds  of  the 
sale  should  prove  insufficient  to 
pay  the  whole  amount  of  his 
execution,  as  it  would  be  giv- 
ing to  the  purchaser  the  power 
of  defeating  the  intermediate  mort- 
gage, which  it  is  the  privilege  of 
the  creditor  alone  to  impeach  for 
his  own  benefit;  and  which,  if  set 
aside,  would  leave  the  whole  value 
of  the  estate  to  be  applied  to  the 
satisfaction   of   the   execution," 

6  Stevens  v.  Church,  41  Conn. 
369.  Where  no  attempt  has  been 
made  to  proceed  against  the  mort- 
gagee in  a  foreclosure  proceeding, 
the  general  rule  is  that  the  obli- 
gation of  the  purchaser  is  not 
merged,  and  the  mortgagee  may 
proceed  to  collect  the  deficiency  in 
another  action :  Washington  Life 
Ins.  Co.  V.  Marshall  (56  Minn. 
250),  67  N.  W.  658;  McRae  v.  Sul- 


CHAP.    XXX.]  DEED  SUBJECT  TO  MORTGAGE.  2045 

§  1055.  Parol  evidence  to  show  grantee  did  not  as- 
sume mortgage. — When  there  is  no  fraud  in  the  execution 
or  dehvery  of  a  deed,  a  grantee  who  has  accepted  the  deed 
by  which  he  "assumes  and  agrees  to  pay"  a  certain  mortgage 
on  the  premises,  "and  to  save  the  grantor  harmless  there- 
from," cannot  show  by  parol  evidence  that  he  made  no  such 
agreement  and  did  not  know  that  these  clauses  had  been  in- 
serted in  the  deed.  By  accepting  the  deed  the  grantee  took 
upon  himself  the  duty  of  performing  the  agreement  contained 
in  the  deed  according  to  its  terms.'  A  deed  was  executed  to 
a  woman  as  grantee,  without  her  authority  or  knowledge,  at 
the  direction  of  her  husband,  who  had  the  deed  recorded. 
The  deed  contained  a  recital  that  the  land  conveyed  was  sub- 
ject to'  a  mortgage,  "which  the  grantee  assumes  and  agrees 
to  pay."  Shortly  after  the  registration  of  the  deed  she  became 
aware  that  the  land  had  been  conveyed  to  her,  and  claimed 
to  be  its  owner,  but  she  never  saw  the  deed  itself,  and  knew 
nothing  of  what  it  contained  until  after  the  sale  of  the  land 
by  the  mortgagee,  when  she  repudiated  the  deed.  It  was 
held,  however,  that  these  facts  would  justify  a  finding  that 
she  had  given  her  assent  to  the  purchase,  and  also  a  ruling 

livan  (56  Minn.  266),  57  N.  W.  knew  of  the  insertion  of  such  an 
Rep.  659.  agreement  in  the  deed.  Such  evi- 
■^  Muhlig  V.  Fiske,  131  Mass.  110.  dence,  except  so  far  as  it  tended  to 
"The  defendant,"  said  the  court,  show  that  there  had  been  no  deliv- 
"having,  by  the  delivery  which  the  ery  of  the  deed,  was  therefore 
jury  have  found,  accepted  the  deed  rightly  excluded,  independently  of 
of  conveyance,  and  thereby  ob-  any  question  of  pleading:  Coolidge 
tained  the  estate  which  he  after-  v.  Smith,  129  Mass.  554;  Blyei  v. 
ward  conveyed  to  a  third  person,  Monholland,  2  Sand.  Ch.  478."  Parol 
and  so  made  himself  liable  to  the  evidence  may  be  admissible  to  ex- 
burden  which,  by  the  terms  of  the  plain  an  ambiguity  in  a  recital:  N. 
deed,  he  had  assumed,  could  not  Y.  L.  Ins.  Co.  v.  Aitkin,  125  N.  Y. 
(no  fraud  in  the  execution  or  de-  660,  26  N.  E.  732,  and  to  show  the 
livery  of  the  deed  being  suggested)  assumption  of  a  mortgage :  Miller 
impair  the  legal  effect  of  his  own  v.  Kennedy,  12  S.  D.  478,  81  N.  W. 
act  by  oral  evidence  that  he  had  906;  Brosseau  v.  Lowry,  209  111. 
never  agreed  to  assume  and  pay  405,  70  N.  E.  901. 
the   mortgage,   nor  authorized  nor  See  §  1073  post. 


2046 


THE  LAW  OF  DEEDS. 


[chap.    XXX. 


that  the  recital  In  the  deed  bound  her.'  And  it  is  held  that 
unless  there  is  some  evidence  to  the  contrary,  proof  of  the 
record  of  a  deed  will  raise  the  presumption  that  the  title 
vested  in  the  grantee,  and  that  he  became  bound  by  a  cove- 
nant in  the  deed  to  assume  a  mortgage.' 

§  1056.  Purchaser  on  assuming  mortgage  is  principal 
debtor. — If  the  grantee  undertakes  to  pay  the  mortgage 
he  becomes  the  principal  debtor,  and  the  mortgagor  a  surety 
merely.*     The   mortgagee   may  maintain   a   personal   action 


8Coolidge  V.  Smith,  129  Mass. 
554. 

8  Lawrence  v.  Farley,  9  Abb.  N. 
C.  371.  See  Atlantic  Dock  Co.  v. 
Leavitt,  54  N.  Y.  35,  13  Am.  Rep. 
556;  Spaulding  v.  Hallenbeck,  35  N. 
Y,  206;  Belmont  v.  Coman,  22  N. 
Y.  438,  78  Am.  Dec.  213.  A  cove- 
nant to  pay  a  "mortgage"  is  a 
covenant  to  pay  the  debt  Avhich  it 
secures:  Hine  v.  Myrick,  60  Minn. 
518,  62  N.  W.  1125.  That  an  agree- 
ment to  pay  mortgage  may  be 
shown  by  parol  evidence  of  verbal 
contract  if  the  evidence  is  clear, 
6ce  Whicker  v.  Hushaw,  159  Ind. 
I,  64  N.  E.  460 ;  Arnold  v.  Randall, 
121  Wis.  462,  98  N.  W.  239;  Ord- 
way  V.  Downey,  18  Wash.  412,  51 
Pac.  1047,  63  Am.  St.  Rep.  892; 
Rolston  V.  Markham,  36  Ore.  112, 
58  Pac.  1099.     See  also  §  1073  post. 

1  Burr  V.  Beers,  24  N.  Y.  178,  80 
Am.  Dec.  327;  Willson  v.  Burton, 
52  Vt.  394;  Rubens  v.  Prindle,  44 
Barb.  336;  Calvo  v.  Davies,  73  N. 
Y.  211,  29  Am.  Rep.  130;  Wales  v. 
Sherwood,  52  How.  Pr.  413;  Trot- 
ter V.  Hughes,  12  N.  Y.  74,  62  Am. 
Dec.  137;  Flagg  v.  Geltmacher,  98 
111.  293;  Belmont  v.  Coman,  22  N. 
Y.  438,  78  Am.  Dec.  213 ;  Crenshaw 


V.  Thackston,  14  S.  C.  437;  Thorp 
V.  Keokuk  Coal  Co.,  48  N.  Y.  253; 
Marsh  v.  Pike,  10  Paige,  596; 
Marshall  v.  Davies,  78  N.  Y.  414; 
Mutual  Life  Ins.  Co.  v.  Davies,  44 
N.  Y.  Sup.  Ct.  172;  Johnson  v. 
Zink,  52  Barb.  396 ;  Cornell  v.  Pres- 
cott,  2  Barb.  16;  Fleishhauer  v. 
Doeliner,  9  Abb.  N.  C.  373;  Com- 
stock  v.  Drohan,  71  N.  Y.  9;  Ayers 
V.  Dixon,  78  N.  Y.  318;  Atlantic 
Dock  Co.  v.  Leavitt,  54  N.  Y.  35, 
13  Am.  Rep.  556;  Willard  v.  Woo- 
sham,  76  Va.  392 ;  Boardman  v. 
Larrabee,  51  Conn.  39;  Alt  v.  Ban- 
holzer,  36  Minn.  57;  Dean  v.  Walk- 
er, 107  111.  540,  47  Am.  Rep.  467; 
George  v.  Andrews,  60  Md.  28,  45 
Am.  Rep.  706;  Figart  v.  Haider- 
man,  75  Ind.  564;  Ellis  v.  Johnson, 
96  Ind.  377;  Palmeter  v.  Carey,  63 
W'is.  426;  Alvord  v.  Spring  Valley 
Gold  Co.,  106  Cal.  547.  And  see 
Lawrence  v.  Fox,  20  N.  Y.  268; 
Curtis  v.  Tyler,  9  Paige,  432;  Mil- 
ler v.  Thompson,  34  Mich.  10. 
Scholten  v.  Barber,  217  111.  148,  75 
N.  E.  460;  Warner  v.  Williams,  93 
Md.  517,  49  Atl.  559;  Regan  v.  Wil- 
liams, 185  Mo.  620,  84  S.  W.  959, 
105  Am.  St.  Rep.  600;  Nelson  v. 
Brown,  140  Mo.  580,  41  S.  W.  960, 


CHAP.    XXX.]  DEED  SUBJECT  TO  MORTGAGE. 


2047 


against  the  grantee  who  has  assumed  to  pay  the  mortgage 
without  foreclosing  the  mortgage  or  joining  the  mortgagee 


62  Am.  St.  Rep.  755 ;  Wonderly  v. 
Giessler,   118  Mo.   App.  708,  93   S. 
W.  1130;  Merriam  v.  Miles,  54  Neb. 
566,  74  N.  W.  861,  69  Am.  St.  Rep. 
731;   Stover  v.  Tompkins,  34  Neb. 
465,  51  N.  W.  1040;  N.  Y.  L.  Ins. 
Co.  V.  Casey,  178  N.  Y.  38].,  70  N. 
E.  916;  Germania  L.  Ins.  Co.  v.  Ca- 
sey, 90  N.  Y.  Supp.418,98App.  Div. 
88;aff'd   184  N.   Y.   554,  76  N.  E. 
1095 ;  Howard  v.  Robbins,  73  N.  Y. 
Supp.  172,  67  App.  Div.  245 ;  Poe  v. 
Dixon,  60  Ohio  St.  124,  54  N.  E.  86, 
71    Am.    St.    Rep.    713;    Moore    v. 
Triplett,  96  Va.  603,  32  S.  E.  50,  70 
Am.   St.  Rep.  882;  Bank  v.  Snow, 
197  Mass.  339,  83  N.  E.  1099 ;  Prid- 
dy  v.  Bank,  132  Mo.  App.  279,  HI 
S.  W.  865.     A  grantee  is  not  per- 
sonally liable  for  the  mortgage  debt 
where  he  purchases  the  land  subject 
to  the  mortgage:  Springer  v.  Fos- 
ter, 27  Md.  App.  15,  60  N.  E.  720; 
Winans    v.    Welkie,   41    Mich.   264, 
1  N.  W.  1049;  Farmers  etc.  Trust 
Co.  V.  Penn  etc.  Co.  103  Fed.  132, 
56  L.R.A.   710,  43  C.   C.   A.    114; 
Board   of   Trustees   v   Piersol,    161 
Mo.  270,  61  S.  W.  811;  Crawford 
v.  Nimmons,  180  111.  143,  54  N.  E. 
209;  Crane  v.  Hughes,  5  Kan.  App. 
100,  48  Pac.  865;   Osborn  v.  Hall, 
160  Ind.  153,  66  N.  E.  457;  Foster 
V.    Bowles,    138   Cal.   346,   71    Pac. 
494;    Monarch   Coal   &   ]VL   Co.    v. 
Hand,  197  III.  288,  64  N.  E.  381; 
Hadley  v.  Clark,  8  Idaho,  497,  69 
Pac.    319;    Fiske    v.    Tolman,    124 
Mass.  254,  26  Am.   Rep.  659;   Mc- 
Naughton  v.  Burke,  63  Neb.  704,  89 
N.  W.  274;  Frerking  v.  Thomas,  64 
Neb.  193,  89  N.  W.  1005 ;  Schaeffer 


v.  Schaeffer,  182  Pa.  St.  598,  38  Atl. 
474.  But  a  grantee  is  personally 
liable  when  he  assumes  the  pay- 
ment of  the  mortgage  indebted- 
ness :  Winans  v.  Wilkie,  41  Mich. 
264,  1  N.  W.  1049;  Garnett  v. 
Pierce,  74  111.  App.  225;  Ward  v. 
De  Oca,  120  Cal.  102,  52  Pac.  130; 
Colchester  Sav.  Bank  v.  Brown,  75 
Conn.  69,  52  Atl.  316;  Eggleston  v. 
Morrison,  185  111.  577,  57  N.  E. 
775;  Swisher  v.  Palmer,  106  111. 
App.  432;  Blakeslee  v.  Hoit,  116 
111.  App.  83;  Worley  v.  Hineman,  6 
Ind.  App.  240,  2Z  N.  E.  260;  Risk 
V.  Hoffman,  69  Ind.  137;  Santee  v. 
Keefe,  127  Iowa,  128,  102  N.  W. 
803;  Iowa  Loan  &  Trust  Co.  v. 
Haller,  119  Iowa,  645,  93  N.  W. 
636;  Munsell  v.  Beals,  5  Kan.  App. 
736,  46  Pac.  984;  Shumway  v. 
Hawley,  8  Kan.  App.  861,  55  Pac. 
352;  Cumberland  Nat.  Bank  v.  St. 
Clair,  93  Me.  35,  44  Atl.  123 ;  Jehle 
v.  Brooks,  112  Mich.  131,  70  N.  W. 
440;  Martin  v.  Humphrey,  58  Neb. 
414,  78  N.  W,  715:  Young  Mens 
Christian  Ass'n  v.  Portland,  34  Or. 
106,  55  Pac.  439,  75  Am.  St.  Rep. 
568;  McKay  v.  Ward,  20  Utah,  149, 
46  L.R.A.  623,  57  Pac.  1024 ;  Arnold 
v.  Randall,  121  Wis.  462,  98  N.  W. 
239.  Although  the  mortgagee  is 
not  a  part  to  the  contract  of  as- 
sumption, he  may  enforce  it  as 
made  for  his  advantage :  Herd  v. 
Tuohy,  133  Cal.  55,  65  Pac.  139; 
Roberts  v.  Fitzallen,  120  Cal.  482, 
52  Pac.  818;  Ward  v.  DeOca,  120 
Cal.  102,  52  Pac.  130;  Hopkins  v. 
Warner,  109  Cal.  133.  41  Pac.  868; 
Colchester    Sav.    Bank    v.    Brown, 


2048 


THE  LAW  OF  DEEDS. 


[chap.    XXX. 


as  a  defendant  in  the  action.^  An  owner  of  real  estate,  who 
had  given  a  trust  deed  to  secure  a  loan,  conveyed  the  property 
to  another,  subject  to  the  encumbrance  which  the  grantee  in 
the  deed  agreed  to  assume.  This  grantee  conveyed  to  another 
purchaser,  and  the  latter  to  a  third.  It  was  held  that  the 
original  mortgagor  became  simply  a  surety  for  the  payment  of 
the  debt  to  the  creditor,  and  had  the  right  of  paying  the  debt 
when  it  became  due,  without  releasing  the  subsequent  pur- 
chasers, each  of  whom  became  an  original  promisor  for  the 
payment  of  the  debt  as  a  condition  on  which  he  received 
title;  and  further,  that  after  such  payment  the  original  mort- 


75   Conn.   69,   52  AtL  316;   Board- 
man    V.    Larrabee,    51    Conn.    39; 
Stuyvesant   v.   Western   Mort.    etc. 
Co.  22  Colo.  28,  43  Pac.  144;  Cooley 
V.   Murray,   11   Colo.   App.  241,   52 
Pac.  1108;  Whicker  v.  Hushaw,  159 
Ind.  1,64    N.  E.  460;  Hammons  v. 
Bigelow,  115  Md.  363,  17  N.  E.  192; 
Ayres  v.  Randall,  108  Md.  595,  9  N. 
E.  464 ;  Cumberland  Nat.  Bank  v.  St. 
Clair,  93  Me.  35,  44  Atl.  123 ;  Flint 
V.  Winter  Harbor  Land  Co.  89  Me. 
420,  36  Atl.  634;  Webber  v.  Law- 
rence, 118  Mich.  630,  V  N.  W.  266; 
Corning   v.    Burton,    102   Mich.   86, 
62  N.  W.  1040;  Fitzgerald  v.  Bar- 
ker, 85   Mo.   13;   Gameau  v.   Ken- 
dall, 61   Neb.  396,  85  N.  W.  291; 
Wager  v.  Link,  150  N.  Y.  549,  44 
N.  E.  1103;  Windle  v.  Hughes,  40 
Or.  1,  65  Pac.  1058;  Bloon  v.  Crew 
Levick  Co.,  177  Pa.  St.  606,  35  Atl. 
871,  55  Am.  St.  Rep.  742.     In  Re- 
gan V.  Williams,  185  Mo.  620,  84  S. 
W.  959,  105  Am.  St.  Rep.  600  the 
court  says:  "The  sale  of  the  land 
by  the  original  mortgagor,  Williams, 
to  the  Scott  Investment  Company, 
and  the  assumption  of  the  incum- 
brance by  the  latter,  converted  said 
company  into  the  principal  debtor 


with  reference  to  the  encumbrance, 
and   the  defendant   into   a   surety: 
Wayman    v.   Jones,    58    Mo.    App. 
313 ;  Nelson  v.  Brown,  140  Mo.  580, 
62  Am.  St.  Rep.  755,  41  S.  W.  960; 
Pratt  V.  Conway,   148  Mo.  291,  71 
Am.   St.  Rep.  602,  49  S.  W.   1028. 
Timothy  Regan,  who  then  held  the 
note   and   knew   all   about   the   ar- 
rangement, was  bound  thereafter  to 
recognize  said  parties  in  those  ca- 
pacities :  Nelson  v.  Brown,  140  Mo. 
580,  62  Am.  St.  Rep.  755,  41  S.  W. 
960.     In  Nelson  v.  Brown,  140  Mo. 
580,  41  S.  W.  960,  62  Am.  St.  Rep. 
755,    the   court   says:     "The   rule 
seems  to  be  that  if  the  owner  of 
real  estate  encumbered  by  a  mort- 
gage   sells   it,   and   his   vendee,   as 
part  payment  of  the  purchase  price, 
assumes  the  payment  of  the  mort- 
gage debt,  the  vendee  becomes  the 
principal,   and  the  vendor  is  as  to 
such    debt    entitled    to    the    same 
rights    and    remedies    against    the 
vendee,  whether  legal  or  equitable, 
that  a  surety  may  have  against  his 
principal.'  " 

2  Burr  v.  Beers,  27  N.  Y.  178,  80 
A  grantee  assuming  a  mortgage  is 
Am.  Dec.  327. 


CHAP.    XXX.]  DEED  SUBJECT  TO  MORTGAGE.  2049 

gagor  might  become  the  purchaser  at  the  trustee's  sale.^  But 
an  agreement  on  the  part  of  a  vendee  in  an  executory  con- 
tract to  assume  and  pay  a  mortgage  upon  the  land  as  a  part 
of  the  consideration,  is  simply  an  agreement  to  indemnify 
the  vendor  against  a  judgment  for  any  deficiency  that  may 
result  on  a  sale  under  the  mortgage.  The  mortgagee  cannot 
avail  himself  of  the  agreement,  if  the  contract  of  sale  is 
rescinded  before  the  commencement  of  an  action  to  foreclose 
the  sale.* 

§  1056a.     Purchaser's  title  not  divested  by  nonpayment. 

— A  deed  containing  an  agreement  that  the  grantee,  as 
a  part  of  the  consideration,  shall  assume  and  pay  a  mortgage 
previously  executed  by  the  grantor,  vests  the  title  in  the 
grantee,  and  the  agreement  to  assume  and  pay  the  mortgage 
does  not  constitute  a  condition,  a  breach  of  which  w^ill  cause 
the  title  to  revest  in  the  grantor.  The  grantee's  title  cannot 
be  divested,  or  his  right  to  the  possession  of  the  land  con- 
veyed be  destroyed,  by  shov^^ing  that  he  failed  to  pay  the 
mortgage.^  Where  the  grantee  assumes  the  payment  of  the 
mortgage  note,  the  holder  of  the  note  can  enforce  it  against 
him  in  a  personal  action.^  A  deed  executed  by  the  grantee  to 
another,  in  which  the  latter  assumes  the  mortgage,  will  not 
release  the  former  from  his  liability.' 

8  Flagg  V.  Geltmacher,  98  III.  293.  by  the  mortgagee,  and  an  ofiFer  to 

charged  with  notice  that  the  inter-  pay  the  principal   and   interest   ac- 

est  coupons  attached  to  the  princi-  crued  to  the  time   of   the  offer  is 

pal  note  provide  that  the  principal  insufficient:   Beverly  v.  Blackwood, 

note    should    become    due    at    an  102  Cal.  83. 

earlier  date  for  default  on  payment  *  Biddel    v.    Brizzolara,    64    Cal. 

of  interest,  although  the  mortgage  354. 

fails  to  state  that  fact:  Williams  v.  6  Martin  v.  Splivalo,  69  Cal.  611. 

Moody,   95    Ga.   8,   22    S.    E.   230.  See  §  827,  ante. 

Where    a   vendee    agrees    "to    take  6  Wayman  v.  Jones,  58  Mo.  App. 

up"  certain  mortgages  if  the  mort-  313. 

gagee  will  accept  the  money,  he  is  '  Corning    v.    Burton,    102    Mich, 

obligated  to  pay  the  principal  with  86,  62  N.  W.  1040. 
interest   to   maturity,    if    demanded 
Deeds,  Vol.  U.— 12» 


2050 


THE  LAW  OF   DEEDS. 


[chap.    XXX. 


§  1057.  Extension  of  time. — If  the  purchaser  has  as- 
sumed the  payment  of  the  mortgage,  and  he  and  the  mort- 
gagee, by  an  agreement  between  themselves,  in  which  the 
mortgagor  does  not  join,  extend  the  time  for  the  payment  of 
the  mortgage,  the  rule  in  most  of  the  States  is  that  the 
mortgagor,  occupying,  as  he  does,  the  relation  of  a  surety, 
is  discharged   from  all  liability  upon  the  mortgage.*     It  is 


8  Calvo  V.  Davies,  73  N.  Y.  211, 
29  Am.  Rep.  130;  Metz  v  Todd,  36 
Mich.  473;  Christner  v.  Brown,  16 
Iowa,  130;  Neimcewicz  v.  Gahn,  3 
Paige,  614;  Gahn  v.  Neimcewicz,  11 
Wend.  312.  See  also  Herd  v.  Tuo- 
hy,  133  Cal.  55,  65  Pac.  139;  Bros- 
seau  V.  Lowy,  209  111.  405,  70  N.  E. 
901 ;  Franklin  etc.  Bank  v.  Cochrane, 
182  Mass.  586,  61  L.R.A.  760,  66  N.E. 
200;  Pratt  v.  Conway,  148  Mo.  291, 
49  S.  W.  1028,  71  Am.  St.  Rep.  602; 
Merriam  v.  Miles,  54  Neb.  566,  74 
N.  W.  861,  69  Am.  St.  Rep.  731; 
Winslow  V.  Stoothoff,  93  N.  Y. 
Supp.  335,  104  App.  Div.  28;  la.  etc. 
Co.  V.  Schnose  (S.  D.)  103  N.  W. 
22;  Miller  v.  Kennedy,  12  S.  D. 
478,  81  N.  W.  906;  Dillaway  v. 
Peterson,  11  S.  D.  210,  76  N.  W. 
925.  In  the  first  case  the  court 
said :  "The  mortgagee,  after  the 
conveyance  by  Davies,  could  not 
deal  with  the  grantee  of  the  equity 
of  redemption,  to  the  prejudice  of 
his  right  of  subrogation,  without 
discharging  Davies  from  liability 
for  the  debt,  either  wholy  or  pro 
tanto.  If,  for  example,  he  had, 
pursuant  to  an  agreement  with  Les- 
lie, without  the  consent  of  Davies, 
satisfied  or  released  the  lien  of  the 
mortgage,  it  is  plain  that  he  would 
thereby,  as  to  Davies,  have  dis- 
charged the  debt,  at  least  to  the 
extent     of     the     value     of     the 


land.  The  rule  that  a  mortgagee 
is  bound,  in  dealing  with  his  secu- 
rity, and  with  the  bond,  to  observe 
the  equitable  rights  of  third  per- 
sons, of  which  he  has  notice,  has 
been  frequently  recognized :  Tice 
v.  Annin,  2  Johns.  Ch.  125;  Halsey 
V.  Reed,  9  Paige,  446;  Stevens  v. 
Cooper,  1  Johns.  Qi.  425,  7  Am, 
Dec.  499;  Howard  Ins.  Co.  v.  Hal- 
sey, 8  N.  Y.  271,  59  Am.  Dec.  478. 
And  the  doctrine  that  a  surety  is 
discharged  by  dealings  between  the 
creditor  and  the  principal  debtor, 
inconsistent  with  the  rights  of  the 
surety,  has  been  applied,  although 
the  creditor  did  not  know,  in  the 
c  rigin  of  the  transaction,  that  one 
of  the  parties  was  a  surety,  and 
also  when,  by  an  arrangement  be- 
tween two  original  joint  and  prin- 
cipal debtors,  one  of  them  assumed 
the  entire  debt,  and  this  was  known 
to  the  creditor:  Pooley  v.  Harra- 
dine,  7  El.  &  B.  431;  Oriental  Fi- 
nancial Corporation  v.  Overend, 
Gurney  &  Co.  Law,  R.,  7  Ch.  App. 
142;  Millerd  v.  Thorn,  56  N.  Y. 
402;  Colgrove  v.  Tallman,  67  N.  Y. 
95,  23  Am.  Rep.  90.  We  think  it 
must  be  held,  upon  the  authorities, 
that  the  rights  of  the  parties  in 
this  case  are  to  be  determined  by 
the  rules  governing  the  relation  of 
principal  and  surety,  and  that  if  the 
dealings    between    the    mortgagee 


CHAP.    XXX.]  DEED  SUBJECT  TO  MORTGAGE.  2051 


said,   however,   that  the   extension,   to  so  operate,   must  be 
granted  after  knowledge  of  the  conveyance.^ 


9 


§  1058.  Release  of  grantee. — In  a  case  where  the 
grantee  in  the  deed  thus  becomes  the  principal  debtor,  the 
mortgagor  cannot  release  him,  without,  at  the  same  time, 
releasing  the  mortgagor  who  is  the  surety.  A  mortgage 
was  executed  containing  a  clause,  by  which  the  mortgagor 
had  the  privilege  of  requiring  from  the  mortgagee  a  release 
of  any  portion  of  the  mortgaged  property,  at  any  time,  upon 
making  certain  enumerated  payments.  Subsequently  the  mort- 
gagor executed  a  deed  of  the  property  subject  to  the  mortgage, 
which  the  grantee  assumed  and  agreed  to  pay.  Afterward 
an  agreement  was  made  between  the  grantee  and  the  holder 
of  the  mortgage,  without  the  knowledge  or  consent  of  the 
mortgagor,  for  the  abrogation  of  this  clause,  relating  to  the 
release  of  certain  portions  of  the  property  upon  the  making 
of  the  specified  payments.  The  holder  of  the  mortgage  had 
notice  of  the  deed  and  its  covenants.  The  mortgage  was 
foreclosed,  and  it  was  sought  to  hold  the  original  mortgagor 
liable  for  the  deficiency;  but  it  was  held  that,  inasmuch  as 

and  Leslie  would  have  discharged  Miller    v.    McCan,    7    Paige,   452." 

Davies,   if   he  had  been  originally  See,   also,   Keller  v.   Ashford,    133 

bound    as    surety    only,    the    action  U.   S.  610,  33  L.  ed.  667;   Metz  v. 

against  him  cannot  be  maintained:  Todd,    36    Mich.    473;    Home    Nat 

Halsey  V.  Reed,  9  Paige,  446;  Burr  Bank   v.   Waterman,    134   111.   461; 

V.  Beers,  24  N.  Y.  178,  80  Am.  Dec.  George  v.  Andrews,  60  Md.  26,  45 

327;    Flower   v.    Lance,   59    N.    Y.  Am.  Rep.  706;  Union  Life  Ins.  Co. 

603.      That    an    agreement    by    the  v.  Hanford,  143  U.  S.  187,  36  L.  ed. 

creditor  with  the  principal  debtor,  118;  Cheeton  v.  Brooks,  71  Md.  45 ; 

extending    the    time    for    the    pay-  Travers  v.  Dorr,  60  Minn.  173,  62 

ment  of  the  debt,  without  the  con-  N.  W.  269.     But  see  la.  etc.  Co.  v. 

sent  of  the  surety,  discharges  the  Haller,  119  la.  645,  93  N.  W.  636; 

latter,   is   established   by   numerous  Denison  University  v.  Manning,  65 

authorities,  and  the  court  will  not  Oh.  St.  138,  61  N.  E.  706;  Bank  v. 

enter  into  the  question  what  injury  Snow,    197    Mass.    339,    83    N.    E. 

the  surety  has  sustained:   Rees   v.  1099. 

Berrington,  2  Ves.  Jr.  540;   Rath-  9  Norton    v.    Ins.    Co.,    74    Minn, 

bone    V.    Warren,    10    Johns.    587;  484.  77  N.  W.  298,  539. 


2052 


THE  LAW  OF  DEEDS. 


[chap.    XXX. 


the  mortgagor  was  a  surety,  the  release  of  the  privilege  re- 
ferred to  relieved  him  from  liability.^  But  the  mortgagee 
may  discharge  the  mortgagor  from  personal  liability  without 
affecting  his  lien  upon  the  land,  or  his  claim  against  the 
grantee,  assuming  the  debt.^ 

§  1059.     Request  of  mortgagor  to  foreclosure. — If  the 

mortgagor  considered  as  a  surety,  request  the  mortgagee  at 
the  maturity  of  the  mortgage  debt,  to  foreclose  the  mortgage 
debt,  on  the  ground  that  the  value  of  the  property  will  then 
satisfy  the  mortgage,  but  may  depreciate  in  value,  and  the 
mortgagee  neglects  to  Comply  with  such  request,  the  mortgag- 
or will  not  be  liable  for  a  deficiency  occasioned  by  such  neg- 
lect.^ But  a  request  must  be  made.  Mere  neglect  to  proceed 
against  the  mortgagor  will  not  discharge  a  person  who  has 
guaranteed  the  payment  of  a  mortgage,  although  the  value 


1  Paine  v.  Jones,  76  N.  Y.  274. 
And  see  Mutual  L.  Ins.  Co.  v.  Da- 
vies,  44  N.  Y.  Sup.  Ct.  172. 

2  Tripp  V.  Vincent,  3  Barb.  Cli. 
613. 

3  Remsen  v.  Beekman,  25  N.  Y. 
552.  Said  the  court:  "In  this  case, 
when  the  primary  fund  for  the 
payment  of  the  debt  was  ample, 
when*  urged  by  the  surety  to  col- 
lect it,  and  for  years  afterward,  the 
creditor  chose  to  let  his  loan  lie, 
against  the  quasi  surety's  expressed 
wish,  because  he  considered  it  an 
advantageous  mortgage  investment, 
until  the  fund  primarily  liable  for 
the  debt  has  depreciated  to  a  sum 
less  than  one-third  of  such  debt, 
it  would  be  wholly  inequitable  to 
charge  a  deficiency  upon  the  surety 
caused  puret^  by  the  creditor's  own 
conduct.  The  plaintiff  refused  to 
comply  with  the  request  of  Beek- 
man for  the  reason  that  he  wished 


to  continue  the  loan,  showing  by 
his  conduct  that  he  did  not  rely 
upon  the  surety.  There  would  be 
no  equity  in  allowing  him  to  call 
upon  the  surety,  when  it  is  apparent 
that  if  he  had  complied  with  his 
request  he  would  have  secured  his 
debt."  See,  also,  Russell  v.  Wein- 
berg, 2  Abb.  N.  C.  422.  See  Os- 
borne v.  Heyward,  57  N.  Y.  Supp. 
542,  40  App.  Div.  78,  in  which  the 
court  says :  "The  rule  is  settled 
that  the  neglect  of  the  mortgagee 
to  proceed  to  forclose  the  mortgage 
and  collect  his  debt,  when  duly  re- 
quested to  do  so,  will  relieve  tha 
mortgagor  from  liability  for  any 
subsequent  deficiency,  if  it  appears 
that  the  whole  debt  would  have 
been  collected  out  of  the  land  by 
compliance  with  his  request,  but 
has  become  uncollectible  therefrom 
on  account  of  the   delay." 


CHAP.    XXX.]  DEED  SUBJECT  TO  MORTGAGE.  2053 

of  the  land  has  depreciated  to  such  an  extent  as  to  be  insuffi- 
cient to  pay  the  debt.*    , 

§  1060.  View  that  relation  of  surety  does  not  effect 
mortgagee. — In  some  courts  the  rule  prevails  that,  al- 
though the  mortgagor  becomes  a  surety  as  between  him  and 
the  grantee  when  the  latter  assumes  the  payment  of  the  mort- 
gage, yet  that  this  relation  does  not  arise  as  to  the  creditor. 
"Upon  principle,"  says  Lewis,  P.  J.,  "it  would  seem  that  a 
clear  distinction  may  be  taken  between  a  suretyship  which  is 
created  with  the  express  consent  of  the  creditor — as  in  an 
original  contract — and  a  suretyship  which  arises  by  operation 
of  law  in  a  later  transaction,  to  which  the  creditor  is  not  a 
party.  In  the  former  case  the  creditor  is,  by  his  own  act, 
bound  to  recognize  all  the  distinctive  rights  of  the  surety, 
whose  obligation  to  him  exists  in  no  other  capacity,  from  the 
beginning.  He  must,  therefore,  do  nothing  which  may  lessen 
the  surety's  recourse  or  chances  for  indemnification,  in  the 
event  of  his  having  to  pay  the  debt.  But,  in  the  latter  case, 
he  has  voluntarily  assumed  no  such  duty.  It  becomes  a 
question,  then,  whether  the  law  can  cast  it  upon  him  without 
his  consent,  and  thus,  in  effect,  alter  the  terms  of  his  original 

contract He  may,  therefore,   continue  to  hold  the 

mortgagor  as  a  principal  debtor;  and,  while  he  so  holds  him, 
there  can  be  no  discharge  of  liability  on  the  ground  of  in- 
dulgence to  one  who,  for  certain  purposes  not  affecting  the 
creditor,  stands  toward  the  original  debtor  in  the  relation  of 
a  principal  to  his  surety."  ®  In  a  case  in  Iowa,  it  is  likewise 
held  that  the  relation  of  the  grantor  and  mortgagor  remains 
unchanged,  by  the  assumption  of  the  mortgage  debt  on  the 

4  Kurd  V.  Callahan,  9  Abb.  N.  C.  Rep.  130,  and  say :  "The  conclusion 
374_  reached   in   this   decision   seems   to 

5  Connecticut  Mut.  Life  Ins.  Co.  stand  alone.  The  weight  of  au- 
V.  Mayer,  8  Mo.  App.  18.  The  thority  elsewhere  is  altogether  the 
court    criticise    the    case    of    Calvo  other  way." 

V.   Davies,  73   N.   Y.  211,  29  Am. 


2054  THE  LAW  OF  DEEDS.  [CHAP.    XXX. 

part  of  the  grantee  that  both  the  grantor  and  grantee  may, 
as  to  the  mortgagee,  be  treated  as  principals,  and  that  an  ex- 
tension of  time  by  an  agreement  between  the  mortgagee  and 
grantee  will  not  alter  this  relation.'  And  the  same  rule  pre- 
vails in  New  Jersey.' 

§  1061.  Comments. — It  seems  unreasonable  to  change 
the  relation  existing  between  the  mortgagor  and  mortgagee 
by  a  contract  made  by  a  purchaser  with  the  mortgagor,  to 
which  the  mortgagee  is  not  a  party.  Between  the  mortgagor 
and  the  party  assuming  the  payment  of  the  mortgage,  the 
relation  of  surety  and  principal  may  exist.  But  the  rights 
of  the  mortgagee  ought  to  be  determined  by  the  terms  of 
his  contract  at  the  time  of  its  execution,  and  these  terms 
ought  not,  it  seems  to  us,  to  be  subsequently  changed  to  his 
disadvantage  without  his  consent.  He  cannot  on  any  reason- 
able ground,  in  our  opinion,  be  bound  by  any  agreement  which 
the  mortgagor  and  the  grantee  may  choose  to  make  among 
themselves.  Let  their  rights  and  duties  to  one  another  be  what 
they  may,  the  mortgagee  should  be  entitled  to  have  his  per- 
sonal remedy  against  the  mortgagor,  to  the  same  extent  as 
if  the  property  had  not  been  sold  subject  to  the  mortgage. 
To  deny  him  this  right  may  be  in  many  cases  to  deny  him 
the  means  of  satisfying  the  indebtedness  due  to  him,  to  take 
away  a  right  which  he  originally  had,  and  which  he  has  not 
agreed  to  relinquish.  We,  therefore  favor  the  view  that 
the  relation  of  suretyship  should  not  affect  or  involve  in  its 
conesquences  the  mortgagee,  so  as  to  compel  him  to  treat 
the  mortgagor  after  the  sale  as  he  would  have  been  compelled 

6  Corbett  v.  Waterman,  11  Iowa,  son  v.  Bertram,  14  Iowa,  476;  Her- 

86.  bert  v.  Doussan,  8  La.   Ann.  267; 

'  Huyler's   Executors  v.   Atwood,  Waters  v,  Hubbard,  44  Conn.  340; 

26  N.  J.  Eq.  504.    And  so  in  Michi-  James  v.  Day,  37  Iowa,  164;  Fish 

gan :     Crawford     v.     Edwards,     33  v.  Glover,  154  111.  86. 
Mich.  354.    And  see,  also,  Thomp- 


CHAP.    XXX.]  DEED  SUBJECT  TO  MORTGAGE.  2055 

to  deal  with  him  had  he  originally  assumed  the  relation  of 
surety. 

§  1062.  Purchaser  of  a  part  of  the  land. — An  owner 
of  land  subject  to  a  mortgage  sold  a  part  of  it,  the  value 
of  which  was  more  than  sufficient  to  pay  the  mortgage  debt. 
A  provision  was  inserted  in  the  deed  that  the  grantee  should 
assume  and  pay  the  whole  of  the  mortgage.  Subsequently 
the  owner  conveyed  the  remaining  part  of  the  lot,  with  the 
understanding  that  the  mortgage  was  to  be  paid  by  the  former 
grantee,  and  afterward  a  new  mortgage  upon  the  portion  of 
the  lot  first  conveyed  was  taken  by  the  mortgagee  who  had 
notice  of  these  facts.  Under  these  circumstances  the  court 
permitted  the  second  grantee  to  maintain  a  bill  to  redeem 
the  lot  conveyed  to  him  without  contribution  toward  the  debt 
secured  by  the  first  mortgage.'  If  the  purchaser  of  a  part  of 
the  land  subject  to  a  mortgage  discharge  it,  he  will  be  en- 
titled to  an  account  of  the  rents  and  profits,  and  to  an  assign- 
ment of  the  mortgage.'  The  purchasers  of  several  parts  of 
mortgaged  property  are  obliged  to  contribute  in  proportion 
to  the  value  of  the  parts  respectively  held  by  them,  if  the 
equities  of  such  parties  are  equal.^  As  the  grantees  and  all 
claiming  under  them  undertake,  when  mortgaged  lands  are 
conveyed  subject  to  a  mortgage,  that  the  land  shall  be  the 
primary  fund  for  the  payinent  of  such  debt,  the  execution 
of  a  subsequent  deed  of  a  part  of  such  land  to  the  mortgagor 

8  Welch  V.  Beers,  8  Allen,  151.  Where  the  owner  of  land  subject 
See,  also,  Iowa  Loan  and  Trust  Co.  to  a  mortgage  sells  pieces  succes- 
V.  Mowery,  67  Iowa,  113;  Hazlett  sively,  and  the  mortgagee  releases 
T.  Sinclair,  76  Ind.  488,  40  Am.  Rep.  the  pieces  last  sold,  if  these  pieces 
254 ;  Miller  v.  Fasler,  42  Minn.  366 ;  are  of  sufficient  value  to  discharge 
Johnson  v.  Walter,  60  Iowa,  315 ;  the  debt,  such  release,  if  the  mort- 
Rugg  V.  Brainerd,  57  Vt.  364.  gagee   had   knowledge  of   the  pre- 

9  Salem  v.  Edgerly,  33  N.  H.  46 ;  vious  sales,  will  discharge  the  lien 
Champlin  v.  Williams,  9  Pa.  St.  on  the  land  previously  sold :  Turner 
341.  V.   Sharpneck,   164  Pa.   St.  469,  44 

1  Salem  v.  Edgerly,  33  N.  H.  46.       Am.   St  Rep.  624. 


2056 


THE  LAW  OF  DEEDS. 


[chap.    XXX. 


does  not  relieve  the  remainder  for  its  proportionate  liability 
for  such  debt.^ 


§  1063.  Grantee's  defense  against  mortgage. — A  gran- 
tee, who  in  his  deed  has  assumed  the  payment  of  a  mortgage, 
is  not  permitted  to  contest  its  validity.  He  cannot,  for  in- 
stance, allege  that  the  mortgage  which  he  has  assumed  is 
usurious.^  "A  vendee  who  accepts  a  conveyance  of  land 
subject  to  a  mortgage  thereon,  and  containing  a  covenant 
whereby  such  vendee  assumes  and  agrees  to  pay  said  mort- 
gage, is  estopped  from  asserting  that  the  obligation  secured 
thereby  is  usurious.  The  whole  title  of  such  vendee  rests  upon 
the  conveyance,  and  the  continued  existence  of  the  mortgage, 
as  an  encumbrance,  fonns  a  part  of  it.  The  conveyance  is 
evidence  of  title,  and  when  proven,  as  such  evidence,  the 
existing  mortgage  and  the  asumption  thereof  is  also  proven. 
A  grantee  cannot  be  permitted  to  claim  title  'both  under  and 
against  the  same  deed;  to  insist  upon  its  efficacy  to  confer  a 


8  Weber  v.  Zeimet,  30  Wis.  283. 
See,  also,  Freeman  v.  Auld,  44  N. 
Y.  SO. 

8  Bearce  v.  Barstow,  9  Mass.  45, 
6  Am.  Dec.  25;  Root  v.  Wright, 
21  Hun,  344;  De  Wolf  v.  Johnson, 
10  Wheat.  367,  6  L.  ed.  343 ;  Ritter 
V.  Phillips,  53  N.  Y.  586;  Frost  v. 
Shaw,  10  Iowa,  491 ;  Spinney  v. 
Miller.  114  la.  210,  86  N.  W.  317, 
89  Am.  St.  Rep.  351;  Scanlan  v. 
Grimmer,  71  Minn.  351,  74  N.  W. 
146,  70  Am.  St.  Rep.  326.  "The 
defense  of  usury,"  said  the  court 
in  Cramer  v.  Lepper,  26  Ohio  St. 
59,  20  Am.  Rep.  756,  "is  personal 
to  the  mortgagor,  and  cannot  be  set 
up  by  his  grantee,  who  assumes  in 
consideration  of  the  grant  to  pay 
the  claim  of  the  mortgagee."  See, 
also,  Busby  v.  Finn,  1  Ohio  St.  409; 


Hartley  v.  Harrison,  24  N.  Y.  170; 
Shufelt  V.  Shufelt,  9  Paige,  137,  Z7 
Am.  Dec.  381;  Barthet  v.  Elias,  2 
Abb.  N.  C.  364;  Sands  v.  Church, 
6  N.  Y.  347;  Cope  v.  Wheeler,  41 
N.  Y.  303.  And  see  Union  Bank 
V.  Bell,  14  Ohio  St.  201;  Green  v. 
Kemp,  13  Mass.  515,  7  Am.  Dec. 
169;  Morris  v.  Floyd,  5  Barb.  130, 
Cannot  deny  mortgage.  See  Al- 
vord  V.  Gold  Co.,  106  Cal.  547,  40 
Pac.  27;  Hadley  v.  Clark,  8  Ida. 
497,  69  Pac.  319;  Lang  v.  Dietz,  191 
111.  161,  60  N.  E.  841 ;  Goos  v.  Goos, 
57  Neb.  294,  77  N.  W.  687 ;  Mitchell 
V.  Nat'l  etc.  Ass'n  (Tex.)  49  S.  W. 
624;  Curry  v.  Lafon  (Mo.)  113  S. 
W.  246;  Herrin  v.  Abbe,  55  Fla. 
769,  18  L.R.A.(N.S.)  907,  46  So, 
183. 


CHAP.    XXX.]  DEED  SUBJECT  TO  MORTGAGE. 


2057 


benefit,  and  repudiate  a  burden  with  which  it  has  quahfied 
it;  to  affirm  a  part  and  reject  a  part.'  "  *  Nor  can  the  grantee 
show  that  the  amount  assumed  by  him  is  not  due  upon  the 
mortgage.^  A  pre-emptor  of  land  borrowed  a  sum  of  money, 
and  executed  a  mortgage  on  the  land  as  security  for  the  sum 
borrowed.  After  entering  upon  the  land,  he  conveyed  it  by 
deed  to  a  purchaser,  subject  to  the  mortgage,  the  purchaser 
agreeing  to  pay  the  mortgage  as  a  part  of  the  purchase  price. 
This  deed  was  duly  recorded,  and,  subsequently,  the  grantee 
conveyed  the  premises  to  a  second  grantee,  with  a  covenant 


*  Scanlan    v.    Grimmer    (supra). 
See,  also,  Stuckey  v.  Middle  States 
etc.   Co.,  61   W.   Va.   74,  8  L.R.A. 
(N.S.)  814,  55  S.  R  996;  Hiner  v. 
Whitlow,   66   Ark.    121,   49   S.    W. 
353,  74  Am.  St.  Rep.  74;  Anderson 
V.  Oregon  Mortgage  Co.,  8  Ida.  418, 
69    Pac.    130;    Smith  v.   McMillan, 
46  W.  Va.  577,  33  S.  E.  283.     So, 
also,    where    the    assvmiption    is    a 
part    of    the    consideration:    Frost 
V.  Pacific  Sav.  Co.  42  Ore.  44,  70 
Pac.  814;  Dickenson  v.  Bankers  etc. 
Co.  93  Va.  498,  25  S.  E.  548 ;  Chen- 
oweth  V.   Bld'g  Ass'n,   59  W.  Va. 
653,    53    S.    E.    559.      "Where    the 
grantee  has  received,  as  a  part  of 
the  consideration,  the  benefit  of  the 
amounts    claimed    to    be    usurious, 
the  law  estops  him  to  set  up  usury. 
But    where    such    amount    has    not 
been    deducted    from    the   purchase 
price  he  is  not  estopped:     Cobe  v. 
Summers,  143  Mich.  117,  106  N.  W. 
707.     See,  also,  Crawford  v.  Nim- 
mons,   180   111.   143,   54  N.   E.  209. 
Likewise    a    purchaser    is    not    es- 
topped  to  assert    usury   where   his 
agreement   is   to   pay   "balance   un- 
paid   which    may   be    found   to    be 
due."     National  etc.  Ass'n  v.  Retz- 
man,  69  Neb.  667,  96  N.  W.  204. 


See,  also,  Erwin  v.  Morris,  137  N. 
C.  48,  49  S.  E.  53 ;  Washington  etc. 
Ass'n  V.  Andrews,  95  Md.  696,  53 
Atl.  573.  That  a  married  woman 
taking  conveyance  from  her  spend- 
thrift husband  for  the  purpose  of 
placing  property  where  he  cannot 
fritter  it  away,  is  not  estopped  to 
show  usurious  character  of  mort- 
gage on  property,  see  First  Nat'l 
Bank  of  Atwood  v.  Drew,  226  111. 
622,  10  L.R.A.(N.S.)  857,  80  N.  E. 
1082. 

5  Kennedy  v.  Brown,  61  Ala.  296; 
Ritter  v.  Phillips,  53  N.  Y.  586; 
Scarry  v.  Eldridge,  63  Ind.  44; 
Green  v.  Houston,  22  Kan.  35 ; 
Johnson  v.  Parmely,  14  Hun,  398; 
Crawford  v.  Edwards,  33  Mich. 
354;  Miller  v.  Thompson,  34  Mich. 
10;  Dean  v.  Walker,  107  111.  540, 
47  Am.  Rep.  467;  Millington  v. 
Hill,  47  Ark.  301;  McConihe  v. 
Fales,  107  N.  Y.  404 ;  Bond  v.  Dol- 
by, 17  Neb.  491;  Skinner  v.  Rey- 
nick,  10  Neb.  323,  35  Am.  Rep, 
479;  Koch  v.  Losch,  31  Neb.  625; 
Fit7gerald  v.  Barker,  85  Mo.  13; 
Alt  V.  Banholzer,  36  Minn.  57.  See, 
American  Nat.  Bank  v.  Klock,  58 
Mo.   App.  335. 


2058  THE  LAW  OF   DEEDS.  [CHAP.    XXX. 

that  the  premises  were  free  from  all  encumbrances,  except 
as  shown  by  the  records,  and  the  second  grantee  agreed  with 
the  first  to  pay  the  mortgage  as  a  part  of  the  consideration. 
It  was  held  that  the  second  grantee,  in  an  action  to  fore- 
close the  mortgage  by  the  mortgagee,  was  estopped  from 
showing  the  invalidity  of  the  mortgage  under  the  pre-emption 
laws  of  Congress.®  A  husband  and  wife  executed  a  mortgage 
upon  their  homestead  without  complying  with  the  provisions 
of  the  statute  as  to  the  waiver  of  the  homestead  right.  After- 
ward, they  conveyed  the  premises  by  deed,  subject  to  the 
mortgage,  the  amount  of  which  formed  a  part  of  the  purchase 
price.  The  grantee,  having  obtained  the  premises  by  assum- 
ing the  payment  of  the  mortgage,  and  thus  admitting  its 
validity,  was  held  to  be  estopped  in  an  action  to  foreclose  by 
the  mortgagee,  from  setting  up,  as  a  defense,  the  omission  to 
release  the  right  of  homestead.'^  When  the  grantee  accepts 
a  deed  binding  him  to  pay  a  mortgage,  he  cannot  show  in  a 
foreclosure  suit,  for  the  purpose  of  contradicting  the  deed, 
that  it  was  agreed  between  him  and  his  grantor  that  the  con- 
sideration was  to  be  paid  partly  by  labor,  and  that  he  was  to 
be  released  from  the  deed  of  trust.'  The  grantee,  as  long  as 
he  remains  in  the  quiet  and  peaceful  possession  of  the  prem- 
ises, cannot  defend  against  the  payment  of  the  mortgage  which 
he  has  assumed,  because  of  a  failure  of  title.^    A  grantee  of 

« Green  v.  Houston,  22  Kan.  35.       Keokuk   Coal   Co.,   48   N.   Y.   253; 

7  PidReon  V.  Trustees  of  Schools,       Ritter   v.    Phillips,    53    N.    Y.   586; 
44   111.   501.  Shadbolt   v.    Bassett,    1   Lans.    121. 

8  Klein  v.  Isaacs,  8  Mo.  App.  568.       The  general  rule  is,  that  there  must 
^  Parkinson  v.  Sherman,  74  N.  Y.       be    an    eviction    before    any    relief 

88,  30  Am.  Rep.  268.  Said  Miller,  can  be  granted,  on  the  ground  of  a 
J. :  "It  is  held  that  where  a  grantee  failure  of  title  or  consideration. 
of  mortgaged  premises  takes  a  deed  So  long  as  he  remains  in  the  peace- 
of  the  same  subject  to  the  mort-  ful  and  quiet  possession  of  the 
gage,  and  thereby  assumes  to  pay  premises,  or  until  he  surrenders 
the  mortgage,  he  is  estopped  from  possession  of  the  same  to  a  para- 
contesting  the  consideration  and  mount  title,  the  mortgagor  or  the 
validity  of  the  mortgage:  Freeman  purchaser  who  assumes  the  pay- 
V.   Auld,   44   N.    Y.   50;    Thorp   v.  ment  of  the  mortgage  has  no  de- 


CHAP.    XXX.]  DEED  SUBJECT  TO  MORTGAGE.  2059 

property,  expressly  conveyed  as  subject  to  a  mortgage,  is  es- 
topped to  assert  the  invalidity  of  the  mortgage.* 

§  1064.  Part  of  consideration. — The  acceptance  of  a 
deed  containing  such  a  clause  of  assumption,  is  equivalent 
to  a  direction  from  the  grantor  to  the  grantee  to  pay  the 
amount  specified,  as  so  much  of  the  consideration,  to  the 
mortgagee.  The  grantee  is  liable  for  the  amount  he  under- 
takes to  pay,  and  cannot  dispute  the  legal  execution  of  the 
mortgage,  or  its  amount  as  stated  in  the  deed.^  Although 
the  grantee  has  not  assumed  the  payment  of  the  mortgage, 
yet  when  the  deed  has  been  made  subject  to  the  mortgage, 
and  the  amount  has  been  deducted  from  the  consideration, 
the  grantee  cannot  contest  the  validity  of  the  mortgage.^  A 
mortgage  was  executed  to  A  on  land,  which  the  mortgagor 
afterward  sold,  subject  to  the  mortgage,  to  B,  the  grantee 
reserving  from  the  purchase  price  sufficient  to  discharge  it. 
But  there  was  a  prior  mortgage  on  the  same  land  to  C,  of 
which  both  A  and  B  had  no  knowledge.  When  they  learned 
of  this  prior  mortgage,  B  gave  A  to  understand  that  he  would 

fense  to  the  same.     But  where  the  Allen,  2  Johns.  Ch.  519,  7  Am.  Dec. 

mortgage  debt  is  not  deducted  from  554;    Bumpus  v.    Platner,   1   Johns, 

the  consideration  or  is  a  part  of  it,  Ch.  213;  Curtiss  v.  Bush,  39  Barb, 

the  grantee  may  contest  the  valid-  661." 

ity  of  the  mortgage:   Sewing  Ma-  *  Foy  v.  Armstrong,  113  la.  629, 

chine   Co.   v.    Emerson,    115    Mass.  85    N.   W.   753;    Moulton   v.    Has- 

554 ;  Flanders  v.  Doyle,  16  111.  App.  kell,  50  Minn.  367,  52  N.  W.  960. 

508;  Purdy  v.  Coar,  109  N.  Y.  448,  2  Miller   v.    Thompson,   34   Mich. 

4    Am.    St.    Rep.    491 ;    Bishop    v.  10.    And  see  Ferris  v.  Crawford,  2 

Felch,    7    Mich.    371 ;    Baldwin    v.  Denio,  595 ;  Crawford  v.  Edwards, 

Tuttle,     23     Iowa,     66;     Wood    v.  33  Mich.  354;  Haile  v.  Nichols,  16 

Broadley,  76  Mo.  23,  43  Am.  Rep.  Flun,  37. 

754;  Judson  v.  Dada,  79  N.  Y.  373;  »  Freeman  v.  Auld,  44  N.  Y.  50; 

Williams  v.  Thurlow,  31   Me.  392;  s.  c.  37  Barb.  587;  Hardin  v.  Hyde, 

Parker  v.  Jenks,  36  N.  J.  Eq.  398;  40  Barb.  435.     But  see  Hartley  v. 

Briggs   V.    Seymour,    17   Wis.   255 ;  Tatham,  2  Abb.  N.  Y.  App.  333 ;  s. 

Thompson  v.  Morgan,  6  Minn.  292.  c.    10    Bosw.    273.      See    Foster    v. 

His  only  remedy  is  at  law  on  the  Wightman,  123  Mass.   100, 
covenants   in  the   deed :    Abbott   v. 


2060 


THE  LAW  OF  DEEDS. 


[chap.    XXX. 


pay  it  off.    B,  however,  perimtted  C  to  foreclose,  and  he,  B, 
purchased  the  land  at  the  foreclosure  sale.     It  was  held  that 
A's  mortgage  was  not  extinguished  by  this  foreclosure,  and 
that  he  could  enforce  his  lien  against  the  land.*     The  fact 
that  a  deed  was  executed  simply  as  a  mortgage  to  secure  a 
loan  is  not  of  itself  a  sufficient  consideration  for  a  promise 
by  the  grantee  to  assume  and  pay  a  prior  mortgage.^     It  is 
not  necessary  where  the  grantee  assumes  the  payment  of  a 
mortgage  as  a  part  of  the  consideration,  that  there  should  be  a 
consideration  coming  from  the  mortgagee,^  as  the  equity  of 
redemption  is  a  consideration  for  such  promise."'    If  the  deed, 
states  that  it  is  made  in  consideration  of  a  specified  sum  of 
money,    the    receipt    of    which    is    aknowledgel,    and    also 
contains  a  clause  by  which  the  grantee  assumes  and  agrees 


4  Manwaring  v.  Powell,  40  Mich. 
371.    The  court,  per  Cooley,  J.,  said 
of  the  grantee  in  the  deed:  "It  is 
true  that,  having  like  complainant 
been  ignorant  of  the  Wabeke  mort- 
gage   when   he   bought   of    Moody, 
the  hardship  of  being  compelled  to 
pay  that  mortgage  is  as  great  upon 
him  as  it  would  be  upon  complain- 
ant; but  that  was  one  of  the  risks 
he   assumed   in  his   purchase.     He 
now  owns  the  land;  and  had  com- 
plainant paid  and  taken  up  the  Wa- 
Ivke     mortgage,     he     would     have 
been  entitled  to  tack  it  to  his  own, 
and    foreclose    for   both,    while    on 
the  other  hand,  if  Powell  had  paid 
-  and    taken    it    up,    he    would    have 
been      entirely      without      remedy 
against    any    one,     except    as    the 
covenants  in  his  deed  from  Moody 
might     have     aflforded     indemnity. 
And  we  do  not  think  that  the  cir- 
cumstances that   he  bought   in  the 
land    at    the    foreclosure    sale    can 
help  him  under  the  circumstances. 


We  are  convinced  from  the  evi- 
dence that  he  had  given  complain- 
ant to  understand  that  he  should 
pay  oflF  the  Wabeke  mortgage ;  and, 
under  the  circumstances,  he  was 
not  at  liberty  to  buy  in  the  land  to 
complainant's  prejudice.  We  have 
no  occasion  to  decide  whether  or 
not  he  might  have  done  so  had 
there  been  no  such  understanding." 

6  Merriam  v.  Schmitt,  211  111.  263, 
71  N.  E.  986,  affirming  101  111.  App. 
443. 

3  McKay  v.  Ward,  20  Utah,  149, 
46  L.R.A.  623,  57  Pac.  1024. 

7  Steele  v.  Johnson,  96  Mo.  App. 
147,  69  S.  W.  1065.  See,  also,  on 
question  of  consideration:  Red- 
fearn  v.  Craig,  57  S.  C.  534,  35  S. 
E.  1024;  Garneau  v.  Kenddl,  61 
Neb.  396,  85  N.  W.  291;  Goos  v. 
Goos,  57  Neb.  294,  11  N.  W.  687; 
Cobb  v.  Fishel,  15  Colo.  App.  384, 
62  Pac.  625;  Talburt  v.  Berkshire 
Life  Ins.  Co.,  80  Ind.  434. 


CHAP.    XXX.]  DEED  SUBJECT  TO  MORTGAGE.  2061 

to  pay  a  mortgage  on  the  property  conveyed,  the  law  will 
presume  that  the  agreement  to  assume  the  payment  of  the 
mortgage  is  a  part  of  the  consideration.'  An  undertaking 
to  pay  the  mortgage  is  imported  by  a  recital  in  a  deed  that 
it  is  made  subject  to  a  mortgage  claim,  the  payment  of  which 
is  a  part  of  the  consideration.®  But  where  a  deed  is  taken 
from  an  intermediate  grantee,  reciting  the  assumption  of  the 
mortgage  as  a  part  of  the  consideration,  he  is  not  estopped 
from  proving  as  against  the  mortgagee,  that  the  consideration 
was  a  different  one.^  Still,  if  the  grantee  assumes  as  part  of 
the  consideration  a  trust  deed  to  secure  the  payment  of  notes, 
the  fact  that  the  notes  were  not  signed  by  the  maker  of  the 
trust  deed  but  by  another  person  does  not  impair  the  force  of 
the  contract  on  the  part  of  the  grantee  to  pay  the  encum- 
brance.^ Although  the  deed  may  not  mention  the  indebted- 
ness, and  although  there  may  be  no  express  or  formal  con- 
tract in  relation  to  paying  a  mortgage  indebtedness,  yet  if 
the  grantee  agrees  to  pay  the  indebtedness,  as  a  part  of  the 
purchase  price,  he  thereby  assumes  the  payment  of  the  mort- 
gage.' 

§  1065.  Purchaser  at  execution  sale.— A  purchaser  at 
an  execution  sale  of  land  which  the  owner  had  purchased 
under  an  agreement  to  pay  and  assume  a  mortgage  upon  it, 
succeeds  to  the  rights  of  the  owner,  and  is  equally  with  him 
estopped  from  denying  its  validity.*  A  stockholder  of  a 
corporation  obtained  a  judgment  against  it.     There  was  a 

«Cobb   V.   Fishel,    15    Colo.    App.  8  Lowy  v.  Boenert,  110  111.  App. 

384,  62  Pac.  625.  16;  Brosseau  v.  Lowy,  209  III.  405, 

9Jager    v.    Vollinger,    174    Mass.  70  N.  E.  901.     See,  also,   Feather- 

521,  55  N.  E.  458.  stone  v.  Emerson,  45  Pac.  713,  14 

1  Logan  V.  Miller,  106  Iowa,  511,  Utah,  12;  Schotte  v.  Meredith,  197 
76  N.  W.  1005.  Pa.  496,  47  Atl.  844;  Bragg  v.  Lam- 

2  Harts  V.  Emery,  184  111.  560,  56  port,  96  Fed.  630,  38  C.  C.  A.  467. 
N.  E.  865,  affirming  84  111.  App.  *  Kennedy  v.  Brown,  61  Ala.  296. 
317. 


2062 


THE  LAW  OF  DEEDS. 


[chap.    XXX. 


mortgage  upon  its  property,  of  which  he  had  knowledge. 
He  caused  to  be  sold  under  an  execution  issued  by  him  his 
judgment,  all  the  right,  title,  and  interest  of  the  corporation 
in  and  to  the  property  that  was  mortgaged,  "subject  to  what- 
ever sum  might  be  due  upon  the  property  by  virtue  of  the 
mortgage."  He  bought  the  property  at  the  sale  for  a  very 
small  sum,  and  it  was  held  that  he  could  not  dispute  the 
mortgage  nor  its  validity.^  But  if  there  are  two  mortgages 
upon  the  land,  the  purchaser  is  not  estopped  under  the  statute 
in  Massachusetts  from  contesting  the  validity  of  the  second 
mortgage,  where  the  sheriff  sells  on  execution  "all  the  right 
in  equity"  of  the  mortgagor  to  redeem  the  land  from  the 
mortgages,  and  conveys  the  same  by  his  deed.* 

§  1066.     When  grantee  may  show  invalidity  of  mort- 
gage.  If  no  deduction  is  made  frort^  the  purchase  price 

on  account  of  the  encumbrance,  the  grantee  may  contest 
the  validity  of  the  mortgage,  having,  in  this  case,  the  same 


5  Conkling  v.  Secor  Sewing  Ma- 
chine Co.,  55  How.  Pr.  269. 

eStebbins  v.  Miller,  12  Allen, 
591.  Said  the  court:  "When  a 
creditor  seizes  and  sells  on  execu- 
tion a  debtor's  equity  in  mortgaged 
real  estate,  that  which  he  obtains 
is  the  entire  right  of  redemption 
in  the  premises  which  the  debtor 
had  therein  liable  to  be  taken  by 
creditors.  There  must  be  a  mort- 
gage to  justify  a  sale  on  execution; 
since  unencumbered  real  estate  can- 
not be  so  sold,  but  is  liable  only 
to  be  appraised  and  set  off.  There- 
fore, it  was  held  in  Russell  v.  Dud- 
ley, 3  Met.  147,  that  in  the  case  of 
an  estate  subject  to  a  single  mort- 
gage, the  purchaser  of  the  equity 
at  the  sheriff's  sale  was  estopped 
to  deny  its  existence  and  validity; 


because  he  bought  only  an  equity 
of  redemption,  and  if  there  were 
no  mortgage  there  could  be  no  such 
equity;  and  by  establishing  the  in- 
validity of  the  mortgage,  he  would 
necessarily  establish  the  invalidity 
of  his  own  deed  and  title.  Where, 
however,  there  are  more  mortgages 
than  one,  so  that  the  debtor's  estate 
is  an  equity  of  redemption,  which 
the  statute  authorizes  to  be  sold 
on  execution,  if  any  of  the  apparent 
encumbrances  do  not  really  exist, 
if  they  are  fraudulent  and  void,  or, 
though  once  valid,  have  been  fully 
paid,  the  purchaser  is  entitled  to 
redeem  from  the  real  encum- 
brances, and  to  contest  such  as  are 
apparent  only :  Gerrish  v.  Mace, 
9  Gray,  235." 


CHAP,    XXX.]  DEED  SUBJECT  TO  MORTGAGE. 


2063 


right  as  the  mortgagor  himself.''  Where  a  deed  contains 
a  covenant  of  \Yarranty,  and  recites  that  the  premises  are 
subject  to  a  mortgage,  but  excepts  the  mortgage  from  the 
covenant,  the  grantee  may  dispute  the  vaHdity  of  the  mortgage 
against  the  holder.*  If  a  person  buys  a  tract  of  land  with 
information  from  the  grantor  of  the  usurious  character  of  a 
prior  mortgage,  and  relies  on  being  able  to  make  that  de- 
fense, he  has  the  right  to  contest  the  \'alidity  of  the  mortgage 
on  the  ground  of  usury.^  And  it  is  held  that  the  grantee 
under  a  quitclaim  deed  for  one  dollar  may  contest  the  mort- 
gage of  his  grantor  on  the  ground  of  usury,  where  there  is 
no  other  evidence  that  the  grantee  had  assumed  the  payment 
of  the  mortgage  debt,  or  had  agreed  to  have  it  paid  out  of  the 
land.^    A  grantee  taking  a  deed  with  covenants  of  warranty 


^Maher  v.  Lanfrom,  86  111.  513; 
Flanders  v.  Doyle,  16  III.  App.  508. 
See,  also,  Lanphier  v.  Desmond,  187 
111.  370,  58  N.  E.  343;  Stough  v. 
Lumber  Co.,  70  Kan.  713,  79  Pac. 
737 ;  Selby  v.  Sanf ord,  7  Kan.  App. 
781,  54  Pac.  17;  Wilkinson  v.  Doyle, 
16  111.  App.  514.  The  mere  ac- 
ceptance of  the  deed  does  not  create 
an  estoppel :  Welban  v.  Webster, 
89  :\Iinn.  177,  94  N.  W.  550;  Gray 
V.  Freeman   (Tex.)  84  S.  W.  1105. 

8  Weed  Sewing  Machine  Co.  v. 
Emerson,  115  Mass.  554.  See,  also, 
Flanders  v.  Doyle,  16  111.  App.  508; 
Baldwin  v.  Tuttle,  23  Iowa,  66; 
Judson  V.  Dada,  79  N.  Y.  373; 
Parker  v.  Jenks,  36  N.  J.  Eq.  398; 
Purdy  V.  Coar,  109  N.  Y.  448,  4 
Am.  St.  Rep.  491;  Williams  t. 
Thurlow,  31  Me.  392;  Wood  v. 
Broadley,  l(i  Me.  23,  43  Am.  Rep. 
754;  Briggs  v.  Seymour,  17  Wis. 
255 ;  Thompson  v.  Morgan,  6  Minn. 
292;  Cummins  v.  Wire,  6  N.  J. 
Eq.  73. 


9  Newman  v.  Kershaw,  10  Wis. 
ZZ2>. 

1  Ludington  v.  Harris,  21  Wis. 
239.  The  court,  per  Downer,  J., 
said  they  were  of  the  opinion,  "both 
upon  principle  and  authority,  that  a 
general  conveyance  of  land  on 
which  there  is  a  mortgage  made  by 
the  grantor  void  for  usury,  gives 
to  the  grantee  the  right  to  set  up 
the  defense  of  usury;  and  that  a 
quitclaim  deed  for  the  consideration 
of  one  dollar  gives  the  same  right 
to  the  grantee  to  avail  himself  of 
the  defense  of  usury  as  any  other 
could.  The  right  to  set  up  the  de- 
fense by  the  grantee  cannot  be  de- 
feated by  inadequacy  of  considera- 
tion, but  only  by  showing  an  agree- 
ment on  the  part  of  the  grantee, 
either  to  assume  and  pay  the  debt 
by  the  usurious  mortgage,  or  that  it 
should  be  paid  out  of  the  land.  If 
the  deed  on  its  face  conveys  only 
the  equity  of  redemption,  or  the  land 
subject  to  the  mortgage,  then  the 


2064 


THE  LAW  OF  DEEDS. 


[chap.    XXX. 


may  prove  a  payment  by  the  mortgagor,  which  decreases 
the  amount  of  the  encumbrance  upon  the  land.^ 

§  1067.     Intention  of  grantee  to  assume  should  be  clear. 

To  render  the  grantee  personally  liable  to  pay  a  mort- 
gage upon  the  lands  embraced  in  his  deed,  it  should  clearly 
appear  that  such  was  the  intention  of  the  parties.  A  mere 
statement  in  the  deed  that  the  conveyance  is  made  subject  to 
such  mortgage  is  not  sufficient  to  fix  this  liability  upon  him. 
To  effect  this  result,  the  deed  should  contain  some  language 
clearly  importing  that  an  obligation  is  intended  to  be  created 
by  one  party,  and  is  knowingly  assumed  by  the  other,  such  as, 
"subject  to  payment  of  the  mortgage,"  or  that  such  mortgage 
"forms  a  part  of  the  purchase  money,  which  the  grantee  in 
the  deed  assumes  to  pay,"  or  some  other  equivalent  expres- 


grantee,  by  accepting  the  deed, 
agrees  that  the  mortgage  debt  shall 
be  paid  out  of  the  land.  And  if  it 
appeared  by  competent  evidence 
that  the  land  was  sold  to  the  gran- 
tee for  a  consideration  exceeding 
the  amount  mentioned  in  the  mort- 
gage, and  the  mortgage  debt  was 
actually  deducted  from  the  con- 
sideration agreed  to  be  paid  by  the 
grantee,  this  would,  as  to  him,  ren- 
der the  land  liable  to  the  payment 
of  the  usurious  mortgage.  But  no 
agreement  to  pay  or  take  the  land 
subject  to  the  usurious  mortgage 
should  be  inferred  from  the  mere 
inadequacy  of  the  consideration,  or 
from  the  premises  being  conveyed 
by  a  quitclaim  deed.  The  authori- 
ties, we  think,  lead  to  the  conclu- 
sion, that  if  the  purchaser  acquired 
the  interest  in  the  estate  which  the 
mortgagor  would  have  had  if  the 
conveyance  by  him  to  the  purchaser 
had  not  been  made,  then  the  grantee 


is  in  a  position  to  avail  himself  of 
the  defense." 

2  Williams  v.  Thurlow,  31  Me. 
392.  And  see,  also,  as  to  the  right 
of  the  grantee  to  contest  the  va- 
lidity of  a  mortgage,  Smith  v. 
Cross,  16  Hun,  487;  Pearsall  v. 
Kingsland,  3  Edw.  Ch.  195 ;  Stevens' 
Institute  v.  Sheridan,  30  N.  J.  Eq. 
23.  Where  a  deed  recites  that  it 
is  subject  to  a  mortgage  given  to 
secure  the  payment  of  specific  bond- 
ed indebtedness,  and  contains  a 
covenant  to  pay  all  of  the  present 
indebtedness  "above  specified,"  the 
specific  language  will  not  be  con- 
trolled by  any  following  general 
terms  in  which  the  grantee  under- 
takes to  perform  all  the  "lawful 
obligations"  of  the  grantor.  The 
effect  of  the  specific  covenants  is 
not  limited  to  lawful  obligations: 
Alvord  V.  Spring  Valley  Gold  Co., 
106  Cal.  547. 


CHAP.  XXX.]         DEED   SUBJECT   TO   MORTGAGE. 


2065 


sion.'  The  grantee  does  not  become  personally  liable  to  pay 
mortgages  by  accepting  a  deed,  with  full  covenants,  which 
recites  a  consideration  of  a  certain  amount,  with  a  habendum 
clause,  reciting  that  the  grantee  is  to  hold  the  land  subject  to 
four  mortgages,  which  are  described  as  amounting  to  a  cer- 
tain sum,  which  sum,  it  is  stated,  "has  been  estimated  as  a 
part  of  the  consideration  money  in  this  conveyance,  and  has 
been  deducted  therefrom."  *  "Where  the  words  inserted  in 
the  deed,  and  which  it  is  claimed  impose  a  legal  obligation  on 
the  grantee  to  pay  the  existing  encumbrances,  are  of  doubtful 
meaning  or  ambiguous,  evidence  showing  the  value  of  the 
premises,  or  the  agreed  consideration  therefor,  and  whether 
a  sufficient,  or  any,  part  of  the  same  was  retained  by  the 
grantee  for  the  purpose  of  paying  the  mortgage  indebtedness, 


»Stebbins  v.  Hall,  29  Barb.  524. 
Bacon,  J.,  said:  "Whenever  a  party 
is  thus  sought  to  be  charged  with  a 
duty  primarily  resting  upon  another* 
it  must  arise  either  from  his  ex- 
press assumption  or  from  an  obli- 
gation which  the  law  implies,  and 
casts  upon  him,  from  the  words  of 
his  contract  or  the  language  of  his 
acts.  This  conclusion,  I  think,  is 
borne  out  by  the  whole  current  of 
the  authorities  to  which  we  were 
referred  on  the  argument,  and  some 
to  which  no  allusion  was  made.  I 
am  aware  that  in  several  reported 
cases  the  marginal  notes  state  in 
general  terms,  and  sometimes  with- 
out any  qualification,  that  where  a 
mortgagor  sells  the  mortgaged 
premises  subject  to  the  mortgage, 
the  purchaser  is  bound  in  equity  to 
pay  off  the  mortgage.  But  in  nearly 
every  case,  perhaps  in  all,  where 
such  a  liability  has  been  expressed, 
could  we  be  furnished  with  the 
exact  language  employed  in  the  con- 
Deeds,  VoL  IL— 130 


veyance,  we  should  probably  find 
that  something  more  was  added 
than  the  mere  statement  that  the 
deed  was  subject  to  the  mortgage." 
The  learned  justice  then  proceeds 
to  examine  a  number  of  authorities 
in  support  6f  the  conclusions  which 
he  had  stated.  See,  also,  Walker 
V.  Goldsmith,  7  Or.  161;  Lewis  v. 
Day,  53  Iowa,  575;  Dunn  v. 
Rodgers,  43  111.  260;  Strong  v.  Con- 
verse, 8  Allen,  557,  85  Am.  Dec. 
732;  Foster  v.  Atwater,  42  Conn. 
244;  Tillotson  v.  Boyd,  4  Sand.  515; 
Trotter  v.  Hughes,  12  N.  Y.  74,  62 
Am.  Dec.  137;  Moore's  Appeal,  88 
Pa.  St.  450,  32  Am.  Rep.  469;  Drury 
V.  Tremont  Improvement  Co.,  13 
Allen,  168;  Fowler  v.  Fay,  62  111. 
375;  Comstock  v.  Hitt,  37  111.  542; 
Winans  v.  Wilkie,  41  Mich.  264. 

*  Belmont  v.  Coman,  22  N.  Y. 
438,  78  Am.  Dec.  213.  See,  also, 
Lang  v.  Caldwell,  13  MouL  458,  34 
Pac.  Rep.  957, 


2066 


THE  LAW   OF   DEEDS. 


[chap.  XXX. 


would  be  material  as  aids  in  the  construction  thereof."  ^  A 
covenant  to  pay  the  mortgage  is  a  covenant  that  the  grantee 
will  pay  the  debt  secured  thereby.^  The  grantee's  assent  to 
assume  the  mortgage  must  appear  in  some  manner.'^  It  is 
competent  to  show  by  oral  testimony  the  assumption  of  the 
mortgage  by  the  grantee,^  and  the  assumption  of  course  may 
be  by  a  separate  written  contract.^  If  the  deed  contains  an 
assumption  clause,  but  the  grantee  never  saw  the  deed  and 
did  not  know  this  fact  at  the  time  of  his  conveyance  to  an- 
other in  accordance  with  a  prior  agreement,  a  ratification  of 
the  promise  to  assume  is  not  effected  by  such  conveyance.* 
Evidence  of  the  value  of  the  property  or  of  the  consideration 
agreed  upon  is  admissible  when  it  is  doubtful  whether  a  deed 
binds  the  grantee  to  pay  existing  incumbrances.^  But  while 
a  mortgage  debt  may  be  assumed  by  the  grantee,  without  a 
statement  to  that  effect  in  the  deed,  it  must  appear  from  the 
evidence  that  such  assumption  was  actually  made.'     Where 


6  Winans  v.  Wilkie,  41  Mich.  264, 
266,  per  Marston,  J.  A  covenant 
against  encumbrances  was  followed 
by  the  language:  "Except  a  mort- 
gage of  $2,170,  and  one  interest 
mortgage  of  $195,  both  mortgages 
given  to  C,  which  mortgages  of 
said  second  party  accept  and  agree 
to  pay."  It  was  held  that  this  lan- 
guage, entirely  unexplained  by 
other  evidence,  was  insufficient  to 
show  that  the  grantee  assumed  the 
mortgages:  Hopper  v.  Calhoun,  52 
Kan.  703,  39  Am.  St.  Rep.  363.  But 
it  might  have  been  shown  by  proper 
pleadings  and  evidence  that  the  mis- 
take was  due  to  the  scrivener : 
Hopkins  v.  Calhoun,  52  Kan.  703, 
39  Am.  St.  Rep.  363.  Where  there 
are  no  other  words  to  show  an  as- 
sumption of  a  mortgage  than  that 
the  land  is  purchased  "subject  to" 
a  mortgage,  the  vendee  will  not  be 


personally  charged  with  its  pay- 
ment: Walker  v.  Goodsill,  54  Mo. 
App.  651. 

SHine  v.  Myrick,  60  Minn,  518, 
62  N.  W.  1125. 

7  Boisot  v.  Chandler,  82  III.  App. 
261. 

8  Bossingham  v.  Syck,  118  Iowa, 
192,  91  N.  W.  1047;  Ordway  v. 
Downey,  18  Wash.  412,  51  Pac. 
1047;  Bensieck  v.  Cook,  110  Mo. 
173,  19  S.  W.  642,  33  Am.  St.  Rep. 
422. 

sWyatt  V.  Dufrene,  106  111.  App. 
214. 

1  Schmitt  V.  Merriman,  211  111. 
263,  71  N.  E.  986,  affirming  101  IlL 
App.  443. 

2  Winans  v.  Wilkie,  41  Mich.  264, 
1  N.  W.  1049. 

8  Assets  Realization  Co.  v.  Hei- 
den,  215  111.  9,  74  N.  E.  56. 


CHAP.  XXX.]         DEED   SUBJECT   TO    MORTGAGE.  2067 

suit  is  brought  by  the  mortgagee  and  the  grantee  claims  that 
the  clause  to  assume  was  inserted  in  the  deed  fraudulently 
and  without  his  knowledge,  the  fact  that  he,  for  ten  months 
after  notice  of  the  fraud  failed  to  disaffirm,  will  estop  him 
from  setting  up  the  fraud.*  Such  a  clause  binds  the  grantee, 
although  the  deed  containing  it  was  executed  by  his  agent, 
where  the  deed  is  accepted  and  placed  on  record  with  knowl- 
edge of  its  contents.®  So,  where  a  deed  is  taken  by  an  agent 
without  the  knowledge  or  authority  of  the  grantee,  but  the 
grantee  subsequently  executes  a  deed  of  the  property  cove- 
nanting that  he  is  the  owner  of  the  property  and  he  knew  of 
the  clause  assuming  the  mortgage  and  paid  interest  on  the  debt 
secured,  he  will  be  estopped  from  asserting  that  he  did  not  as- 
sume the  mortgage.®  If  it  is  sought  to  prove  by  parol  evi- 
dence that  the  grantee  assumed  the  payment  of  a  mortgage, 
such  evidence  should  be  clear  and  conclusive.' 

'     §  1068.     Intention  to  be  gathered  from  the  whole  deed. 

— In  arriving  at  the  intention  of  the  parties  to  the  deed 
as  to  the  assumption  of  a  mortgage,  the  whole  instrument 
must  be  examined,  and  any  part  which  is  repugnant  to  or 
inconsistent  with  the  intent  of  the  whole  deed,  as  is  mani- 
fested to  a  certainty  by  other  parts,  must  be  rejected  or  modi- 
fied so  as  to  conform  to  such  intent.  Thus  A  agreed  to 
convey  to  B  certain  premises,  and  B  directed  A  to  execute 
the  deed  to  C.  A,  in  compliance  with  this  direction,  executed 
a  deed  of  the  property  to  C,  and  delivered  it  to  B  for  C. 
The  deed  conveyed  the  land  "subject  to  a  certain  mortgage 
made  by  A,  which  said  mortgage  the  party  hereto  of  the  first 

'     *  Sutter  V.  Rose,  169  111.  66,  48  "'Ordway  v.  Downey,   18  Wash. 

N.   E.  411,  affirming  64  III.   App.  412,  51  Pac  1047.    In  this  case  the 

263.  only  evidence  was  that  of  the  grant- 

8  Gage  V.  Cameron,  212  111.   146,  or  and  the  grantee  and  the  evidence 

72  N.  E.  204.  was  contradictory. 

8Ver   Planck  v.  Lee,   19  Wash. 
492,  53  Pac  724 


2068  ^HE  LAW   OF  DEEDS.  [CHAP.  XXX. 

part  assumes  and  agrees  to  pay  as  part  of  the  consideration 
hereinbefore  expressed."  Subsequently  C  conveyed  by  deed 
this  property  to  D,  who  assumed  and  agreed  to  pay  such 
mortgage  as  a  part  of  the  consideration.  It  was  held  that 
B  was  C's  agent  for  the  purpose  of  accepting  the  deed,  and 
C  was  bound  to  perform  any  agreement  contained  therein, 
and  the  word  "first"  in  the  clause  of  assumption  was  construed 
to  read  and  mean  "second,"  by  which  construction  an  agree- 
ment was  constituted  on  the  part  of  the  grantee  to  pay  the 
encumbrance.' 

§  1069.  Contemporaneous  agreement. — A  clause  ab- 
solute in  its  terms  in  the  deed  binding  the  grantee  to  pay 
a  mortgage  may  be  modified  by  a  contemporaneous  agree- 
ment. An  owner  of  land  conveyed  it  by  deed,  subject  to 
two  mortgages.  The  deed  contained  this  clause:  "Both 
of  which  mortgages,  and  the  notes  secured  thereby,  and  the 
interest  thereon,  the  said  grantee,  by  the  acceptance  of  this 
deed,  assumes  and  agrees  to  pay,  and  save  me  and  my  legal 
representatives  forever  harmless  therefrom,  the  same  forming 
part  of  the  consideration  of  this  deed."  At  the  same  time 
at  which  this  deed  was  executed  the  grantee  agreed  in  writ- 
ing under  seal  with  the  grantor  to  save  the  latter  harmless 
from  certain  notes  aggregating  a  certain  sum,  and  to  convey 
to  the  grantor,  by  good  and  sufficient  deeds,  at  any  time 
within  one  year,  upon  the  payment  of  that  sum,  the  land 
embraced  in  his  deed,  free  from  all  encumbrances,  except 
the  mortgages  mentioned  in  such  deed.    Afterward,  and  with- 

8  FaiVchilds   v.   Lynch,  42   N.   Y.  the  mortgage.     Theresa  Lynch  was 

Sup.  Ct.  (10  Jones  &  S.)  265.    Said  to  pay  it,  and  she  was,  by  an  error 

the  court    (p.   278)  :      "There   was  that    happens    often    in    speech,    in 

plainly  a  mistake  of  the  pen.    There  writing,  and  in  printing,  designated 

is  no  ambiguity  in  the  words,  but  as  the  party  of  the  first  part.    There 

there  is  a  mistake.     The  manifest  is  no  doubt  as  to  who  was  meant  to 

intent    was    that    whoever    was    to  be  designated." 
pay  the  consideration  agreed  to  pay 


CHAP.  XXX.]         DEED   SUBJECT   TO   MORTGAGE.  2069 

in  the  year,  the  land  was  sold  under  a  power  of  sale  contained 
in  the  second  mortgage  for  an  amount  less  than  the  mortgage. 
It  was  held  that  the  duty  imposed  upon  the  grantee  must 
be  construed  in  connection  with  the  terms  of  the  agreement 
of  reconveyance,  and  that  the  grantor  could  not  maintain 
an  action  brought  within  the  year  against  tlie  grantee  for 
the  balance  due  on  the  second  mortgage.® 

§  1070.     Implying    obligation    on    part    of    grantee. — 

Doubtful  or  ambiguous  expressions  will  not  ordinarily  be 
sufficient  to  make  the  grantee  personally  liable,  as  the  lan- 
guage used  in  the  deed  is  that  of  the  grantor.  The  law  will 
not  imply  an  obligation  on  his  part  where  such  is  not  clearly 
the  intention  of  the  parties.  A  and  B  exchanged  lands, 
the  land  conveyed  by  A  being  subject  to  two  mortgages,  one  of 
ten  thousand  dollars,  and  the  other  of  five  thousand  dollars. 
The  deed  described  the  land  and  specified  mortgages,  and  con- 
'^eed  described  the  land  and  specified  mortgages,  and  con- 
tained this  clause:  "The  above-described  property  is  alone 
to  be  holden  for  the  payment  of  both  the  above  debts."  The 
covenant  against  encumbrances,  inserted  in  the  deed,  excepted 
"the  above  mortgages  of  fifteen  thousand  dollars,  which  are 
a  part  consideration  of  this  deed."  A  was  afterward  com- 
pelled to  pay  the  second  mortgage,  and  brought  suit  against 
B  to  recover  the  amount  paid,  but  the  court  held  that  the  clause 
which  we  have  quoted  could  not  be  given  the  construction 
that  B  assumed  a  personal  obligation  to  pay  the  mortgages.* 

9  Gaffney  v.  Hicks,  124  Mass.  301.  considering  this  question  it  is  im- 

The    agreement    to    assume    is    an  portant  to  ascertain  the  intentions 

original    undertaking,    and   may  be  of  the  parties.    In  this,  as  in  other 

contained  either  in  the  deed,  in  a  transactions,   when   that  is   discov- 

separate  writing,  or  rest  in  parol :  ered,  effect  will  be  given  to  it  if  it 

Moore  v.   Booker,  4  N.  Dak.   543,  can  be   done  consistently   with  the 

62  N.  W.  Rep.  607.  rules  of  law.     We  are  looking  now 

1  Hubbard    v.    Ensign,    46    Conn.  for  evidence  of  that  intention  in  the 

576.     Carpenter,   J.,    who   delivered  language  of  the  deed.    In  interpret- 

the  opinion  of  the  court,  said :    "In  ing     that     language,     we     are     to 


2070 


'    THE  LAW   OF  DEEDS. 


[chap.  XXX, 


§  1071.  Grantee's  liability  for  attorney's  fee. — A  gran- 
tee who,  in  the  deed,  has  assumed  the  payment  of  a  mortgage 
which  contains  a  covenant  that  a  reasonable  attorney's  fee 
shall  be  paid  in  case  of  foreclosure  of  the  mortgage,  becomes 
personally  liable  for  the  payment  of  the  attorney's  fee  in 
the  event  of  foreclosure.  By  assuming  the  mortgage  he 
assumes  all  its  incidents.^ 

§  1072.  Assumption  of  mortgage  under  contract  of 
sale,  when  deed  made  to  another. — The  agreement  to 

assume  the  mortgage  may  be  contained  in  an  instrument  sepa- 
rate from  the  deed.  A  person  entered  mto  a  written  contract 
for  the  purchase  of  a  piece  of  real  estate,  agreeing  to  pay 
therefor,  partly  in  cash  and  partly  by  assuming  the  payment 
of  a  mortgage  on  the  premises.  By  the  purchaser's  request, 
the  deed  was  made  to  his  wife.    The  agreement  of  the  vendee 


place  ourselves  in  the  position 
of  the  parties  as  nearly  as  may  be. 
The  parties  have  agreed  upon  the 
terms  of  an  exchange,  and  have 
come  together  to  execute  deeds  and 
other  writings  to  carry  their  agree- 
ment into  effect.  One  thing  agreed 
upon  is,  that  the  defendant  should 
personally  obligate  himself  to  pay 
the  two  mortgages  amounting  to 
fifteen  thousand  dollars,  and  the 
scrivener  is  instructed  to  incor- 
porate that  agreement  in  the  deed. 
We  expect  him  to  write  in  plain, 
unambiguous  language  substantially 
as  follows :  'The  grantee,  by  ac- 
cepting this  deed,  agrees  to  pny 
both  said  mortgages,  and  indemnify 
and  save  the  grantor  harmless.' 
That  expresses  the  intention  of  the 
parties  fully,  and  leaves  no  room 
for  question  or  doubt.  That  is  a 
natural,  obvious,  and  easy  thing  to 
do.    But  instead  of  that,  he  writes: 


'The  above-described  property  is 
alone  to  be  holden  for  the  payment 
of  both  of  the  above  debts.'  Is 
it  to  be  supposed  that  any  intelligent 
man,  especially  if  he  had  the  advice 
of  an  able  and  astute  lawyer,  would 
accept  that  as  an  evidence  of  such 
an  agreement?  In  this  connection, 
it  must  be  borne  in  mind  that  the 
deed  is  his  instrument,  is  being  pre- 
pared under  his  instructions,  and, 
assuming  such  a  contract  to  have 
been  made,  he  will  have  no  dif- 
ficulty in  having  it  inserted  in  clear 
and  intelligible  language.  The  fact 
that  he  did  not  do  so,  but,  in  lieu 
thereof,  had  a  clause  inserted  that 
will  bear  another  meaning  equally 
well,  if  not  better,  is  pretty  con- 
clusive evidence  that  no  such  agree- 
ment was  in  fact  made." 

8  Johnson    v.    Harder,    45    Iowa, 
677. 


Chap,  xxx.]       deed  subject  to  mortgage. 


2071 


under  the  contract  of  purchase,  to  assume  the  mortgag-e  it 
was  held,  inured  to  tlie  benefit  of  the  owner  of  the  mortgage, 
and  the  fact  that  the  deed,  at  the  vendee's  request,  was  made 
to  his  wife,  did  not  affect  his  liabiHty.' 


§  1073.  Grantee's  verbal  promise  to  assume. — It  is  not 
necessary  that  the  promise  of  the  grantee  to  assume  the 
payment  of  an  encumbrance  as  a  part  of  the  consideration 
for  which  the  de^ed  is  made,  should  be  in  writing.  A  verbal 
promise  to  do  so  is  valid,  and  equity  will  enforce  it  either 
at  the  instance  of  the  grantor  or  the  holder  of  the  mortgage.* 
A  promise  on  the  part  of  the  grantor,  made  at  the  time  of 
the  delivery  of  a  deed  by  him,  to  pay  an  assessment  upon  the 
property  when  due,  if  the  grantee  will  accept  the  deed  and 
pay  the  purchase  money,  is  valid  and  binding,  an  agreement 
of  this  character  not  being  merged  in  the  deed,  nor  affected 
by  the  statute  of  frauds.^    The  consideration  of  a  deed  may 


3  Pike  V.  Seiter,  15  Hun  (22  N. 
Y.  Sup.  Ct.),  402. 

4  Lamb  v.  Tucker,  42  Iowa,  118; 
Bolles  V.  Beach,  2  Zab.  (22  N.  J. 
L.)  680,  53  Am.  Dec.  263;  Putney 
V.  Farnham,  27  Wis.  187;  Merri- 
man  v.  Moore,  90  Pa.  St.  78 ;  Wil- 
son V.  King,  23  N.  J.  Eq.  150;  Tut- 
tle  V.  Armstead,  53  Conn.  175; 
Wright  V.  Briggs,  99  Ind.  563; 
Groce  v.  Jenkins,  28  S.  C.  172; 
Indiana  Yearly  Meetings  v.  Haines, 
47  Ohio  St.  423;  Burnham  v.  Dorr, 
72  Me.  198,  See  Brosseau  v.  Lowy, 
209  III.  405,  70  N.  E.  901 ;  Lang  v. 
Dietz,  191  111.  161,  60  N.  E.  841; 
Brossingham  v.  Syck,  118  la.  192, 
91  N.  W.  1047;  Moore  v.  Booker, 
4  N.  D.  543,  62  N.  W.  607;  Ord- 
way  V.  Downey,  18  Wash.  412,  5i 
Pac.  1047,  52  Pac.  228,  63  Am.  St. 
Rep.  892  (quoting  text). 

'  Remington  v.  Palmer,  62  N.  Y. 


31.  Miller,  J.,  speaking  for  the 
court,  said :  "It  is  said  that  ill 
agreements  preceding  the  delivery 
of  the  deed  were  merged  in  the 
same.  This  position  is  not  a  sound 
one,  for  while  all  prior  agreements 
may  be  merged  in  the  deed  when 
executed,  it  by  no  means  follows 
that  before  the  contract  is  fulfilled 
by  delivery  and  acceptance  of  the 
deed,  that  condition  may  not  be 
made  which  are  obligatory  upon  the 
parties.  The  deed  being  ready  for 
delivery,  and  the  plaintiffs  ready  to 
pay  the  money,  they  had  a  perfect 
right  to  exact,  as  a  condition  for 
fulfilling  the  contract,  that  the  de- 
fendant should  pay  the  assessment 
when  it  became  due.  This  is  not 
contradicting  a  written  agreement 
by  parol,  but  evidence  of  the  terms 
upon  which  the  money  was  paid 
and  the  conveyanee  delivered.     As 


2072 


THE  LAW   OF  DEEDS. 


[chap.  XXX. 


always  be  inquired  into,  and  an  agreement  to  pay  a  mortgage 
is  independent  of  the  contract  contained  in  the  deed.  It  is 
in  addition  to  the  terms  of  the  contract  as  embraced  in  the 
deed,  and  does  not  vary  or  contradict  them.^  As  a  question 
of  proof,  it  has  been  held  that  the  grantee's  denial,  under 
oath,  that  he  assumed  the  mortgage,  corroborated  by  the 
testimony  of  the  scrivener,  the  consideration  expressed  in 
the  deed,  and  the  omission  of  a  clause  of  assumption  in  it, 
will  not  be  overcome  by  the  testimony  of  two  witnesses  that 
the  grantee  admitted  the  assumption  after  the  sale.''  "Such 
a  promise  is  not  within  the  statute  of  frauds,  because  it  is 
a  promise  implied  by  law  from  the  acceptance  of  the  deed, 
and  because  it  is  a  promise  to  pay  the  promisee's  own  debt 
to  another  person." '    "A  parol  agreement  by  the  grantee,  at 


the  agreement  in  regard  to  the  con- 
sideration was  made  after  the  deed 
was  executed  and  before  delivery, 
there  could  be  no  merger  of  this 
agreement  in  the  deed:  Murdock 
V.  Gilchrist,  52  N.  Y.  242.  It  is 
urged  that  this  agreement  by  Har- 
ris was  void  within  the  statute  of- 
frauds,  because  it  related  to  lands 
and  was  not  in  writing.  The  agree- 
ment was  executed  and  carried  into 
effect  by  the  payment  of  the  money, 
and  hence  the  defendant  became  lia- 
ble to  pay  the  assessment.  He  had 
reaped  the  benefit  of  the  contract, 
and  he  cannot  thus  claim  that  he 
is  not  bound  to  pay  what  he  agreed 
to  pay  because  the  agreement  was 
not  in  writing.  The  statute  of 
frauds  has  no  application  to  an 
executed  agreement,  and  is  no  de- 
fense in  an  action  brought  to  re- 
cover the  money  which  the  party  is 
bound  by  the  contract  to  pay.  Nor 
can  it  be  said,  I  think,  that  the 
agreement  was  partially  in  wriling 
and  partially  by  parol,   and   there- 


fore it  is  inoperative.  This  is,  no 
doubt,  the  true  rule  in  cases  where 
there  is  a  contract  which  by  the 
statute  of  frauds  is  required  to  be 
in  writing:  Wright  v.  Weeks,  25 
N.  Y.  153.  But  where  there  is 
no  written  contract,  and,  as  in  this 
case,  where  a  deed  was  delivered 
and  the  money  paid  under  an  agree- 
ment to  pay  an  assessment  when 
due,  neither  the  rule  referred  to  nor 
the  statute  of  frauds  has  any  ap- 
plication." 

8  See  Barker  v.  Bradley,  42  N. 
Y.  316,  1  Am.  Rep.  521 ;  Murray  v. 
Smith,  1  Duer,  413;  Bowen  v. 
Kurtz,  37  Iowa,  239;  Taintor  v. 
Hemmingway,  18  Hun  (25  N.  Y. 
Sup.   Ct.),  458. 

'Conover  v.  Brown,  29  N.  J. 
Eq.  510. 

8  Locke  V.  Homer,  131  Mas<^.  93, 
102,  41  Am.  Rep.  199,  per  Gray, 
J.  See,  also,  Alger  v.  Scoville,  1 
Gray,  391;  Huborn  v.  Park,  116 
Mass.  541:  Goodwin  v.  Gilbert,  9 
Mass.  510;  Pike  v.  Brown,  7  Cush. 


CHAP.  XXX.]  DEED    SUBJECT    TO    MORTGAGE. 


2073 


the  time  of  taking  a  deed  of  conveyance  to  real  estate,  that 
he  will  assume  the  mortgage  indebtedness  upon  the  property 
as  a  part  of  the  consideration  of  the  conveyance,  may  be  en- 
forced in  equity  by  the  mortgagee."  ^  "A  promise  by  the  pur- 
chaser of  lands  that  are  subject  to  a  mortgage  to  assume 
and  pay  off  the  incumbrance  as  a  part  of  the  consideration 
or  purchase  price  is  not  required  to  be  in  writing,  because 
it  is  not  a  promise  to  pay  the  debt  of  another,  but  it  is  a 
promise  to  pay  to  a  third  party  the  debt  the  grantee  owes 
to  the  grantor.  The  fact  that  in  thus  paying  his  own  debt 
the  grantee  incidentally  discharges  the  debt  of  his  grantor 
does  not    bring  the  promise  within  the  statute  of  frauds."  ^ 

§  1074.  Acceptance  of  deed. — A  grantee  by  accepting 
a  deed  which  provides  that  he  shall  assume  a  mortgage,  is 
as  much  bound  as  he  would  be  if  he  had  executed  a  special 
contract  for  that  purpose.  "The  principle  is  well  settled, 
that  where  one,  by  deed-poll,  grants  land  and  conveys  any 

133.    In  the  case  last  cited  the  court  performance  of  it,  it  would  satisfy 

said:     "It    was    insisted   that   this  ise  to  the  plaintiff,  because,  in  the 

promise,  if  it  existed  at  all,  was  a  a  debt  due  to  another."    Where  the 

promise  to  pay  the  debt  of  another,  deed    recites    the    existence    of    a 

and  so  void  by  the  statute  of  frauds.  mortgage  merely,  a  subsequent  oral 

if   not  made  in  writing;   also  that  promise  without  consideration,  made 

it  concerned  real  estate,  and  so  was  by    the   grantee   to    pay   the   mort- 

void   under   another   clause   of    the  gage,  is  insufficient  to  establish  an 

same  statute.    We  think  neither  ob-  agreement  binding  on  him  :     Green 

jection  tenable.     Although  the  con-  v.  Hall,  45  Neb.  89,  63  N.  W.  Rep. 

sideration  of    this   promise   was   a  119. 

conveyance   of   real   estate,    it   was  9  Herrin  v.  Able,  55  Fla.  769,  18 

a  consideration  past  and  executed,  L.R.A.(N.S.)  907.  46  So.  183;  Wil- 

and  the  promise  remained  a  simple  son    v.    Kmg,    23    N.    J.    Eq.    150; 

obligation  to  pay  money.    As  to  the  Wright    v.    Briggs,    99    Tnd.    563; 

other  objection,  that  it  was  a  prom-  Lamb  v.  Tucker,  42  la.  118;  Jones, 

ise  to  pay  the  debt  of  another,  the  Mortg.  sec.  741,  et  seq ;   Pom.  Eq. 

substance  of  the  contract  with  the  Jur.    1206. 

plaintiff    was    on    a    consideration,  i  Herrin  v.  Abbe    (supra)     West 

moving  from  him,  to  pay  his  debt,  v.  Granger,  46  Fla.  257,  35  ba  yi ; 

for    his   benefit,    and    to    exonerate  Craft  v.   Kendrick.  39  Fla,  90,  21 

him,  and  was  no  less  a  direct  prom-  So.  803. 


2074  THE  LAW   OF   DEEDS.  [CIIAP.  XXX. 

right,  title,  or  interest  in  real  estate  to  another,  and  where 
there  is  any  money  to  be  paid  by  the  grantee  to  the  grantor, 
or  any  other  debt  or  duty  to  be  performed  by  the  grantee  to 
the  grantor,  or  for  his  use  and  benefit,  and  the  grantee  ac- 
cepts the  deed  and  enters  on  the  estate,  the  grantee  becomes 
bound  to  make  such  payment,  or  perform  such  duty,  and 
not  having  sealed  the  instrument  he  is  not  bound  by 
it  as  a  deed;  but,  it  being  a  duty,  the  law  implies 
a  promise  to  perform  it,  upon  which  promise,  in  case  of  failure, 
assumpsit  will  lie."  ^  "Such  an  undertaking  is  a  contract  in 
writing,  and  the  statute  of  limitation  does  not  begin  to  run 
upon  such  a  contract  until  the  execution  of  the  deed.  Nor 
is  it  material  that  this  contract  is  not  signed  by  the  grantee. 
The  acceptance  of  the  deed  makes  it  a  contract  in  writing 
binding  upon  the  grantee,  just  as  the  acceptance  by  a  lessee 
of  a  lease  in  writing  signed  by  only  the  lessor  makes  it  a 
written  contract  binding  upon  such  lessee;  and  suit  can  be 
instituted  upon  it,  and  the  same  rights  maintained,  as  though 
it  were  also  signed  by  the  grantee."  '     A  executed  a  deed- 

8  Pike  V.  Brown,  7  Cush.  133,  per  Mass.  182,  37  Am.  Rep.  316;  Wales 
Shaw,  C.  J;  Gaffney  v.  Hicks,  131  v.  Sherwood,  1  Abb.  N.  C  101; 
Mass.  124;  Furnas  v.  Durgin,  119  Klein  v.  Isaacs,  8  Mo.  App.  568; 
Mass.  500,  20  Am.  Rep.  341;  Bra-  Unger  v.  Smith,  44  Mich.  22;  Mil- 
man  V.  Dowse,  12  Cush.  227;  Locke  Icr  v.  Thompson,  34  Mich.  10;  Car- 
V.  Homer,  131  Mass.  93,  41  Am.  ley  v.  Fox,  38  Mich.  388;  Higman 
Rep.  199;  Crawford  v.  Edwards,  v.  Stewart,  38  Mich.  523;  Patton 
33  Mich.  354;  Schmucker  v.  Sibert,  v.  Gove,  44  N.  J.  L.  252.  See,  also, 
18  Kan.  104,  26  Am.  Rep.  765 ;  Hadley  v.  Clark,  8  Ida.  497,  69  Pac 
Trotter  v.  Hughes,  12  N.  Y.  74,  319;  Beeson  v.  Green,  103  Iowa, 
62  Am.  Dec.  137;  Finley  v.  Simp-  406,  72  N.  W.  555;  Windle  v. 
son,  2  Zab.  (22  N.  J.  L.)  311,  53  Hughes,  40  Or.  1,  65  Pac.  1058; 
Am.  Dec.  252;  Huyler  v.  Atwood,  Connor  v.  Jones  (S.  D.)  72  N,  W. 
26    N.    J.    Eq.    504;    Fairchild    v.  463. 

Lynch,  46  N.  Y.  Sup.  Ct.  1 ;  Taylor  ^  Schmucker   v.    Sibert,    18   Kan. 

V.  Whitmore,  35   Mich.  97;  Urqu-  104,  111,  26  Am.  Rep.  765;  Ricard 

liart    V.    Brayton,    12    R.    I.    169;  v.  Sanderson,  41  N.  Y.  179 ;  Atlantic 

Spaulding  v.  Hallenbeck,  35  N.  Y.  Dock  Co.  v.  Leavitt,  54  N.  Y.  35, 

204;    Bishop  v.   Douglass,  25  Wis.  13  Am.  Reo.  556 
696;    Dickason    v.    Williams,     129 


CHAP.  XXX.]  DEED   SUBJECT    TO    MORTGAGE.  2075 

poll  to  B,  and  he,  B,  subsequently  executed  a  deed  to  C, 
in  which  it  was  recited  that  the  property  was  the  same  that 
was  conveyed  by  A  to  B.  A  brought  an  action  against  B 
on  a  contract  contained  in  their  deed,  and  it  was  held  that  the 
deed  executed  by  B  to  C  was  admissible  to  prove  the  acceptance 
by  B  of  the  deed  from  A.*  Where  a  grantee  accepts  a  deed 
inter  partes,  by  which  an  estate  is  conveyed,  the  deed,  in  legal 
effect,  is  the  deed  of  both  parties.  If  the  deed  contains  a 
stipulation  that  the  grantee  will  assume  and  pay  a  debt  se- 
cured by  a  mortgage  on  the  property  conveyed,  for  the  pay- 
ment of  which  the  grantor  is  personally  responsible,  such 
stipulation  becomes  a  contract  by  the  grantee  with  the  grantor 
to  pay  the  mortgage  debt.  This  is  especially  so,  where  the 
debt  secured  by  the  mortgage  is  computed  as  a  part  of  the 
consideration  price  and  the  contract  being  with  the  grantor 
for  his  indemnity,  the  obligation  inures  in  equity  for  the 
benefit  of  the  mortgagee  and  he  is  entitled  to  enforcement 
against  the  grantee,  so  far  as  the  unpaid  part  of  the  mort- 
gage debt  remains  due  after  the  application  thereon  of  the 
proceeds  of  the  mortgaged  estate.^ 

§  1075.  Mistake  in  deed. — If  the  scrivener  by  mistake 
inserts  a  clause  in  the  deed  binding  the  grantee  to  assume  a 
mortgage,  where  neither  of  the  parties  intended  to  place  this 
liability  upon  the  grantee,  and  did  not  know  of  the  insertion 
of  this  clause,  the  mortgagee  cannot  avail  himself  of  it.^ 

4  Locke  V.  Homer,  131  Mass.  93,  164;  Halsey  v.  Reed,  9  Paige,  446; 
41  Am.  Rep.  199.  This  agreement  King  v.  Whitely,  10  Paige,  465; 
of  a-.sumption  inures  to  the  benefit  Curtis  v.  Tyler,  9  Paige,  432. 
of  the  mortgagee:  Thompson  v.  &  Green  v.  Stone,  54  N.  J.  Eq. 
Bertram,  14  Iowa,  476;  Corbett  v.  387,  55  Am.  St.  Rep.  577. 
Waterman,  11  Iowa,  86;  Lennig's  6  Stevens' Institute  of  Technology 
Estate,  52  Pa.  St.  135,  138;  Hoff's  v.  Sheridan,  30  N.  J.  Eq.  23.  Re- 
Appeal,  24  Pa.  St.  200;  Burr  v.  lief  may  be  granted  where  the  as- 
Beers,  '24  N.  Y.  178,  80  Am.  Dec.  sumption  clause  is  inserted  through 
327;  Blyer  v.  Monholland,  2  Sand.  fraud  or  mutual  mistake  if  relief 
Ch.  478;   Converse  v.  Cook,  8  Vt.  is  properly  and  seasonably  sought: 


2076  THE  LAW   OF  DEEDS.  [CHAP.  XXX. 

§  1076.  Acceptance  by  agent. — If  the  agent  has  power 
to  accept  the  deed  for  the  principal,  the  same  rule  as  to 
assumption,  of  course,  applies.  The  grantee  named  in  the 
deed  is  bound  by  an  acceptance  on  the  part  of  an  agent  duly 
constituted  with  power  to  accept  the  d^ed  for  his  principal."'^ 

§  1077.  Deed  without  grantee's  knowledge. — The  rea- 
son that  a  grantee  is  bound  by  accepting  the  deed  is,  that 
he  cannot  accept  the  benefit  without  at  the  same  time  accept- 
ing the  burden.  If  he  retains  the  deed  and  acquires  the 
title,  he  takes  it  subject  to  such  restrictions,  and  on  such  con- 
ditions, as  the  grantor  has  seen  fit  to  impose.  But  if  the  deed 
is  made  without  the  grantee's  knowledge  or  consent,  he 
naturally  cannot  be  held  bound  by  an  obligation  which  the 
grantor  desired  to  impose,  but  which  the  grantee  never  agreed 
to  assume.  In  such  a  case  the  grantee  is  not  bound  by  a 
clause  of  assumption,  when  he  repudiates  the  deed  as  soon 
as  he  learns  of  its  existence.' 

§  1078.  Grantee's  implied  promise  to  indemnify  gran- 
tor.— Notwithstanding  that  the  grantee  has  not  made  any 

Logan    V.    Miller,    106    la.    511,    76  stipulation  that  the  grantee  assumed 

N.   W.    1005;   Jones   v.    Wilson,   6  the  mortgage,  and  the  latter  when 

Ariz.   125,  53   Pac.  583;   Bogart  v.  informed   of   the   facts  procured  a 

Phillips,   112  Mich.  697,  71    N.  W.  release  from  the  vendor,  it  was  held 

320;  Clifford  v.  Minor,  76  Minn.  12,  that  he  was  not  liable  on  the  cove- 

78  N.  W.  861 ;  Southern  etc.  Ass'n  nant  to  the  mortgagee,  who  had  not 

V.  Winans,  24  Tex.  Civ.  App.  544,  accepted   it  before  its   release,  and 

60  S.  W.  825;   Hull  v.  Vining,    17  who  had  in  the  meantime  become 

Wash.  352,  49  Pac.  537.  entitled    to    no    equities:      Gold    v. 

7  Fairchild  v.  Lynch,  42  N.  Y.  Ogden,  61  Minn.  88.  63  N.  W.  Rep. 
Sup.  Ct.  265.  266.    Grantee  must  have  knowledge 

8  Stevens'  Institute  of  Technology  of  assumption  clause.  See  Merri- 
v.  Sheridan,  30  N.  J.  Eq.  23;  Cordts  man  v.  Schmitt,  211  111.  263,  71  N. 
v.  Hargrave,  29  N.  J.  Eq.  446 ;  Cul-  E.  986.  Grantee  must  repudiate 
ver  v.  Badger,  29  N.  J.  Eq.  74.  promptly  upon  discovery  of  the 
Where  a  purcha.ser  took  a  deed  in  clause.  See  Ver  Planck  v.  Lee,  19 
the    name   of   another    without    his  Wash.  492. 

knowledge,   the    deed   containing   a 


CHAP.  XXX.]         DEED   SUBJECT   TO    MORTGAGE.  2077 

agreement  to  pay  a  mortgage  upon  the  property,  yet  if  the 
mortgage  forms  a  part  of  the  consideration  for  which  the 
land  is  purchased,  the  law  imphes  a  promise,  from  the  nature 
of  the  transaction,  on  the  part  of  the  grantee  to  indemnify 
the  grantor.  "It  may  be  laid  down  as  a  general  rule  that  a 
purchaser  who  buys,  subject  to  a  subsisting  mortgage,  and 
the  mortgage  debt  forms  a  part  of  the  price  or  consideration 
which  he  is  to  pay,  and  which  he  accordingly  assumes,  and 
he  takes  his  deed  subject  to  the  mortgage  and  enters  into  the 
possession  of  the  premises,  is,  in  equity,  bound  to  indemnity 
his  grantor  against  the  mortgage  debt,  although  he  enters 
into  no  bond  or  express  covenant  to  that  effect;  and  if  he 
should  leave  his  grantor  to  pay  off  the  mortgage,  it  appears 
to  me  that  he  would  be  personally  liable  in  an  action  at  law 
by  his  grantor  for  the  money  so  paid.  It  is  true,  he  may 
not  be  liable  personally  to  the  mortgagee  without  something 
passing  between  them.  If  there  should  have  been  an  express 
promise  to  the  mortgagee,  by  the  purchaser,  to  pay  the  debt, 
I  do  not  see  why  there  would  not  be  sufficient  consideration  to 
support  such  a  promise."  ® 

9  The  Vice-Chancellor  in  Dorr  v.  La  Ann.   125;  Ferns  v.  Crawford, 

Peters,  3  Edw.  Ch.  132;  Klapworth  2  Denio,  595. 

V.  Dressier,  2  B'easl.  (13  N.  J.  Eq.)  In    Thompson    v.    Thompson,    4 

62,  78  Am.  Dec.  69;  Cornell  v.  Pres-  Ohio  St.  333,  349;  Thurman,  C  J., 

cott,    2    Barb.     16 ;     Stevenson    v.  says :     "It  seems  to  be  a  well-set- 


Black,  1  N.  J.  Eq.  (Sax.)  338 
Townsend  v.  Ward,  27  Conn.  610 
Flagg   V.    Thurber,    14   Barb.    196 


tied  principle  that  the  purchaser  of 
encumbered  estate,  if  he  agree  to 
take  it  subject  to  the  encumbrance, 


Moore's  Appeal,  88  Pa.  St.  450,  32  and  an  abatement  is  made  in  the 
Am.  Rep.  469;  Marsh  v.  Pike,  1  price  on  that  account,  is  bound  to 
Sand.  Ch.  210;  Thompson  v.  indemnify  his  grantor  against  the 
Thompson,  4  Ohio  St.  333;  Blyer  encumbrance,  whether  he  expressly 
V.  Monholland,  2  Sand.  Ch.  478;  promise  to  do  so  or  uot,  a  promise 
Crowell  V.  Hospital  of  St.  Bama-  to  that  effect  being  implied  from  the 
has,  27  N.  J.  Eq.  650;  Scott  v.  nature  of  the  transaction:  Twed- 
Featherston,  5  La.  Ann.  306;  Wood  dell  v.  Tweddell,  2  Brown  Ch.  154, 
V.  Smith,  51  Iowa,  156;  Hartshorne  margin;  Woods  v.  Huntingford,  3 
V.  Hartshorne,  2  N  J.  Eq.  (1  Ves.  Jr.  (Sumner's  ed.)  132,  mar- 
Green)  349;  Schlatre  v.  Greaud,  19  gin;   Waring  v.  Ward,  7  Ves.  Jr. 


2078  THE  LAW  OF  DEEDS.  [CHAP.  XXX. 

§  1079.  Extent  of  grantee's  liability. — The  grantee's 
liability  in  the  case  mentioned  in  the  preceding  section  does 
not  extend  beyond  the  value  of  the  property.  He  may,  when- 
ever he  pleases,  surrender  the  property  in  satisfaction  of  the 
encumbrance.  "If  he  would  retain  and  enjoy  the  premises, 
then  he  must  pay  off  the  encumbrance,  and  unite  the  legal 
title  with  his  equitable  interest.  He  may,  therefore,  safely 
be  said  to  be  liable  to  the  extent  of  the  value  of  the  premises, 
and  not  beyond  it.  He  takes  them,  it  is  true,  cum  onere,  but 
may  relinquish  them  cum  onere."  ^ 

§  1080.  Release  of  covenant  against  encumbrances  by 
grantee's  subsequent  assumption. — A  deed  may  be  made 
subject  to  a  mortgage,  and  may  contain  a  general  covenant 
against  all  encumbrances  except  the  specified  mortgage,  and 
though  the  consiaeration  expressed  in  the  deed  may  be  simply 
the  value  of  the  equity  of  redemption,  still,  if  a  part  of  the 
true  consideration  was  that  the  grantee  should  pay  the  mort- 
gage debt,  it  becomes  his  duty,  as  between  him  and  his  grantor, 
so  to  discharge  it.  A  portion  of  a  large  lot  of  land  subject 
to  a  mortgage  was  conveyed  by  the  owner,  who  executed  a 
deed  with  covenants  of  warranty  against  the  mortgage.  The 
grantee,  some  time  afterward,  made  an  offer  for  the  purchase 
of  the  residue,  at  a  specified  price,  and  in  his  offer  agreed  to 

(Sumner's  ed.)   337,  margin;  Earl  also,    Mount   v.   Van    Ness,   33   N. 

of  Oxford  V.  Lady  Rodney,  14  Ves.  J.    Eq.    262 ;    Cumberland    v.    Cod- 

Jr.    (Sumner's    ed.)    423,   margin."  rington,   3   Johns.   Ch.  229,  8  Am, 

See,  also,  in  this  connection,  in  Re  Dec.  492.     Where  the  grantor  was 

May  218  Ta.  64,  67  Atl.  120.  not    liable    for    the    mortgage,    the 

iTichenor  v.  Dodd,  3  Green  Ch.  recital  in   a   deed  that  the   land  is 

(4  N.  J.  Eq.)  446,  454.     In  Crowd?  subject   to   a   mortgage,    which   the 

V.  Hospital  of  St.  Barnabas,  27  N.  grantee  assumes  and  agrees  to  pay 

J.   Eq.  650,  655,  it  was  said:     "If  as    a   part   oi   the   purchase   price, 

the  purchaser  buys  the  mere  equity  will  not  make  the  grantee  personal- 

of   redemption,  he  is   liable  to  the  ly    liable    for   the    mortgage    debt: 

extent  of  the  lands  purchased  and  Carrier  v.  United  States  Paper  Co., 

no  farther,  and  he  will  be  discharged  7Z  Hun,  287. 
on  releasing  the  lands."     And  see. 


CHAP.  XXX.]  DEED    SUBJECT    TO    MORTGAGE.  2079 

assume  the  debt  secured  by  the  mortgage,  and  to  pay  the  re- 
mainder in  money.  On  the  aceptance  of  this  offer  the 
owner  executed  a  deed,  which  conveyed  the  land  subject  to 
the  mortgage,  and  named  an  amount  as  consideration  which 
was  simply  the  value  of  the  equity  of  redemption.  This  second 
deed  also  contained  a  covenant  against  encumbrances,  except 
the  mortgage  we  allude  to.  Under  these  circumstances,  it 
became  the  duty  of  the  grantee  to  pay  the  mortgage  debt, 
and  the  grantor  was  released  from  the  covenant  contained  in 
his  first  deed  against  the  mortgage.^ 

§  1081.     When  grantee  is  a  married  woman. — By  the 

statutes  of  many,  if  not  most  of  the  States,  as  incidental  to 
her  right  to  acquire  property  and  hold  it  for  her  sole  and 
separate  use,  a  married  woman  may  buy  property  upon  credit, 
and  enter  into  a  valid  obligation  to  pay  the  purchase  price. 
When,  therefore,  as  a  grantee  in  a  deed,  she  assumes  and 
agrees  to  pay  a  mortgage  upon  the  property,  she  is  per- 
sonally liable  for  the  mortgage  debt.^  "The  law,  in  giving 
married  women  the  right  to  acquire  and  hold  land,  did  not 
intend  that  their  capacity  to  make  contracts  to  secure  the 
purchase  money  should  be  so  limited  and  restricted  that  they 
could  get  the  land  without  paying  for  it.    Whether  they  secure 

2  Drury  v.  Tremont  Improvement  the  covenants  cannot  be  shown  by 
Co.,  13  Allen,  168.  When  the  deed  oral  evidence,  because  such  evi- 
ls made  su1)ject  to  a  mortgage  and  dence  would  vary  the  terms  of  the 
the  amount  is  deducted  from  the  deed:  Spurr  v.  Andrew,  6  Allen, 
purchase  price,  with  the  understand-  420.  See  Harlow  v.  Thomas,  15 
ing  that   the   grantee   shall   pay   it.  Pick.  66. 

the   mortgage    should  be   made   an  3  Cashman    v.    Henry,   75    N.    Y. 

exception  in  the  covenants,  else  it  103,   31    Am.   Rep.  437;   Huyler  v. 

may  be  said  that  the  grantor  cove-  Atwood,  26  N.  J.  Eq.  504,  s.  c.  28 

nanted    acainst    the    encumbrance,  N.  J.  Eq.  275 ;  Vrooman  v.  Turner, 

and  thereby  it  became  his  duty  to  8  Hun,  78,  s.   c.  69  N.  Y.  280,  25 

pay    if      Estabrook    v.    Smith,    6  Am.    Rep.    195;    Ballm   v.   Dillaye, 

Gray,  572,  66  Am.  Dec.  445.     That  Zl  N.  Y.  35.     But  see  Kitchell  v. 

the   encumbrance   was   intended   to  Mudgett,  37  Mich.  81. 
be  excepted  from  the  operation  of 


2080  THE  LAW   OF   DEEDS.  [CHAP.  XXX. 

the  payment  of  the  purchase  money  by  bond  and  mortgage, 
note,  or  contract  to  assume  the  payment  of  a  mortgage,  it  is 
a  contract  they  have  a  capacity  to  make,  and  must  be  en- 
forced." *  But  if  the  deed  is  made  to  a  married  woman 
without  her  consent  and  is  never  dehvered  to  her,  she  is 
not  bound  by  a  clause  in  the  deed  in  which  it  is  recited  that 
she  assumes  the  payment  of  a  mortgage  upon  the  property 
described  in  the  deed.^ 

§  1082.  Legislation  in  New  York. — In  New  York,  the 
common-law  restrictions  placed  upon  the  power  of  a  married 
woman  to  purchase  property,  and  to  bind  hereslf  by  agree- 
ments, have,  by  statute,  been  very  greatly  if  not  entirely  re- 
moved. The  court  of  appeals  of  that  State,  in  a  well  consid- 
ered case,  reviews  the  legislation  upon  the  subject  of  the 
capacity  of  a  married  woman  to  bind  herself  by  contract,  and 
particularly  with  reference  to  her  power  to  assume  the  pay- 
ment of  a  mortgage,  by  accepting  a  deed  in  which  she  is 
named  as  grantee,  and  in  the  language  of  Mr.  Justice  An- 
drews, who  delivered  the  opinion  of  the  court,  say :  "It  will 
be  observ^ed  that  these  statutes  confer  upon  a  married  woman 
the  broadest  and  most  comprehensive  powers  over  her  separate 
real  and  personal  property.  Her  power  of  disposition  is 
absolute  and  unqualified.  She  may  sell  or  give  it  away.  She 
may  enter  into  any  contract  in  respect  to  her  separate  real 
property  'with  the  same  effect  and  in  all  respects  as  if  she 
were  unmarried,'  and  this  court  has  held  that,  as  incident  to 
her  separate  ownership,  she  is  liable  for  torts  committed  in 
its  management,  and  for  the  fraud  of  her  agent  in  dealing 
with  third  persons  in  respect  to  it.^  She  may  engage  in  busi- 
ness and  incur  the  most  dangerous,  and  even  ruinous,  liabil- 

4  Huyler  v.  Atwood,  26  N.  J.  Eq.  «  Citing  Rowe  v.  Smith,  45  N.  Y. 

504,   506,   per  the   Vice-Chancellor.  230;    Baum   v.    Mullen.   47    N.   Y. 

6  Culver  V.  Badger,  29  N.  J.  Eq.  557. 
74. 


CHAP.  XXX.]         DEED   SUBJECT   TO    MORTGAC^L  2081 

ities  in  its  prosecution,  and  they  will  be  enforced  against 
her  to  the  same  extent  as  if  she  was  unmarried.  She  is  no 
longer  regarded  as  under  the  tutelage  of  the  court,  but  the 
new  legislation  assumes  that  she  is  capable  of  managing  her 
own  interests.  .  .  .  The  conclusion  is  that  under  the 
statutes  as  they  now  exist,  a  married  woman,  as  incident  to 
her  right  to  acquire  real  and  personal  property  by  purchase, 
and  hold  it  to  her  sole  and  separate  use,  may  purchase  prop- 
erty upon  credit,  and  bind  herself  by  an  executory  contract 
to  pay  the  consideration  money,  and  that  her  bond,  note,  or 
other  engagement  given  and  entered  into  to  secure  the  pay- 
ment of  the  purchase  price  of  property  acquired  and  held 
for  her  separate  use,  may  be  enforced  against  her  in  the 
same  manner  and  to  the  same  extent  as  if  she  was  a  feme 
sole,  and  that  her  liability  does  not  depend  upon  the  proof 
or  existence  of  special  circumstances,  but  is  governed  by  the 
ordinary  rules  which  determine  the  liability  of  persons  sui 
juris  upon  their  contracts."  ' 

§  1083.  Agreement  for  assumption  in  unusual  place  in 
deed. — A  clause  binding  the  grantee  to  pay  a  mortgage 
was  not  written  in  its  usual  place  in  the  deed,  at  the  end 
of  the  description  of  the  property,  but  was  contained  among 
the  covenants,  a  part  of  the  deed  where  such  a  clause  is  very 
seldom  found.  The  grantee  examined  the  deed  and  expressed 
his  satisfaction  with  it,  but  was  not  aware  that  it  contained 
this  clause.  It  was  not  a  part  of  the  agreement  for  the 
purchase  of  the  property  that  the  grantee  should  personally 
assume  the  payment  of  the  mortgage.  At  the  end  of  tlie 
description  of  the  property  there  was  a  statement  that  the 
property  was  conveyed  subject  to  the  mortgage,  but  no  lan- 
guage importing  that  the  grantee  assumed  its  payment.    When 

7  Cashman   v.   Henry,   75    N.    Y.  Yale  v.  Dederer,  18  N.  Y.  265,  72 

103,  31  Am.  Rep.  437.     See  Ballin  Am.   Dec.   503,   22   N.    Y.   450.   78 

V.  Dillaye,  37  N.  Y.  35.     But  see  Am.  Dec  21^ 
^  Deeds,  Vol.  H.— 131 


2082  THE   LAW    OF   DEEDS.  [CHAP.  XXX. 

he  subsequently  discovered  that  his  deed  contained  this  clause, 
he  went  to  the  agent  of  the  grantor  through  whom  he  had 
purchased  the  property  and  complained  of  it,  and  then  de- 
clared to  him  that  he  would  not  be  bound  by  it,  and  soon 
afterward  he  made  the  same  declaration  to  the  grantor.  He 
offered  to  surrender  the  deed  on  a  return  of  the  consideration, 
and  on  the  grantor  stating  that  he  was  unable  to  make  the 
-eturn,  he  offered  to  surrender  the  deed  for  a  smaH  sum,  which 
offer  the  grantor  refused  to  accept.  The  mortgagee  was  not 
allowed  to  derive  any  advantage  from  the  clause  of  assump- 

tiCML* 

§  1084.  Verbal  agreement  that  grantor  should  advance 
money. — A  verbal  agreement  inconsistent  with  the  terms 
of  the  deed  cannot  be  enforced.  A  and  B  made  an  exchange 
of  certain  real  estate.  In  the  deed  from  A  to  B,  a  dause 
was  inserted  that  the  deed  was  subject  to  a  mortgage  described 
in  the  deed,  "which  said  mortgage  the  said  party  of  the 
second  part  hereby  agrees  to  pay."  B  paid  the  amount  of 
the  mortgage,  and  brought  an  action  against  A  to  recover 
the  amount  so  paid,  in  accordance  with  the  contract  under 
which  the  exchange  was  made,  by  which  it  was  claimed  that 
A,  the  grantor,  agreed  to  furnish  the  money  to  pay  the  mort- 
gage. But  the  alleged  verbal  agreement  was  held  to  be  in- 
consistent with  the  terms  of  the  deed,  and  the  grantee  was 
not  allowd  to  recover  upon  it  against  the  grantor.* 

§  1085.  Fraudulent  representations  of  grantor  as  to 
title. — If  the  grantor  had  no  title  to  the  property,  and 
the  grantee  was  induced  to  take  a  deed,  and  to  assume  the 
payment  of  a  mortgage  by  the  false  and  fraudulent  repre- 
sentations of  the  grantor  as  to  his  title,  these  matters  con- 

8  Bun  ▼.  Titsworth,  29  N.  J.  Eq.  »Unger  v.  Smith,  44  Mkh.  22. 

73. 


CHAP.  XXX.]  DEED   SUBJECT   TO    MORTGAGE.  2083 

stitute  a  g-ood  defense  in  an  action  by  the  mortgagee  against 
the  grantee,  to  recover  the  amount  of  the  mortgage.* 

§  1086.  Mistake  in  description. — If  the  premises  are 
not  correctly  described  in  the  deed,  a  grantee  who  has  ac- 
cepted a  deed  by  which  he  assumes  the  payment  of  a  mortgage, 
cannot  free  himslf  from  hability  on  the  ground  that  by  rea- 
son of  the  mistake  he  acquired  no  legal  title,  where  by  virtue 
of  his  deed  he  obtained  possession  of  the  proper  property, 
and  the  right  to  have  the  error  rectified,  but  instead  of  tak- 
ing the  proper  course  to  accomplish  this,  allowed  the  premises 
to  be  fraudulently  conveyed  and  delivered  to  a  third  person, 
for  the  purpose  of  cutting  off  the  mortgage.^ 

§  1087.  Intermediate  grant  subject  to  first  mortgage. — 
In  the  absence  of  any  stipulation  in  the  deed  that  the  grantee 
shall  assume  and  pay  a  mortgage,  a  statement  in  the  deed 
from  an  intermediate  holder  of  a  part  of  the  premises  covered 
by  a  mortgage,  that  the  grant  is  subject  to  such  mortgage, 
will  not  cause  the  mortgage  to  be  a  specific  charge  upon  the 
portion  conveyed  by  such  deed,  so  as  to  affect  the  equities 
existing  between  second  and  third  mortgagees  upon  other 
portion  of  the  encumbered  premises.' 


1  Benedict  v.  Hunt,  32  Iowa,  27.  property,  and  there  was  nothing  in 
8  Crawford  v.  Edwards,  33  Mich.  the  situation  of  Spaulding  or  Mrs. 
354.  And  see  Comstock  v.  Smith,  Smith  to  influence  them  to  desire 
26  Mich.  306.  anj^thing  of  that  kind.  They  were 
3  Slater  v.  Breese,  36  Mich.  77.  not  original  mortgagors,  but  inter- 
"The  language,"  said  the  court,  mediate  holders  of  a  portion  of  the 
"neither  expressed  nor  implied  any  mortgaged  premises,  and  were  never 
assumption  by  the  grantees  of  the  liable  except  in  respect  to  the^  land, 
payment  of  the  mortgage  in  suit.  The  only  reasonable  supposition  is 
nor  any  intention  that  the  particular  that  the  real  purpose  of  the  state- 
interest  granted  should  be  con-  ment  in  the  deeds  was  to  except 
sidered  as  charged  thereafter  with  the  named  encumbrances  from  the 
the  whole  amount  of  the  old  mort-  covenants." 
gage,    in    preference    to    the   other 


2084  THE  LAW   OF  DEEDS.  [CHAP.  XXX. 

§  1088.  Collusion  of  grantee  with  mortgagee. — Where 
the  grantee  takes  the  land  subject  to  a  mortgage,  but  does 
not  enter  into  a  personal  covenant  to  pay  the  encumbrance, 
the  grantor  thus  remaining  liable  for  a  deficiency  after  a  fore- 
closure sale,  and  where  the  grantee  by  collusion  with  the  mort- 
gagee purchases  at  a  foreclosure  sale  the  land  for  a  sum 
much  below  its  real  value,  and  less  than  the  amount  of  the 
mortgage,  the  sale  may,  on  the  motion  of  the  grantor,  be 
set  aside,  if  this  be  necessary  for  the  protection  of  his  interests, 
and  the  grantor  may  avail  himself  of  the  legal  liability  for 
the  deficiency  of  this  collusion  as  an  equitable  defense.* 

§  1089.  Personal  liability  of  grantor. — If  the  grantor 
was  not  personally  liable  to  pay  the  debt,  the  mortgagee,  it 
is  held  in  some  of  the  States,  cannot  take  advantage  of  an 
assumption  to  pay  his  mortgage  contained  in  a  deed  to  a 
subsequent  grantee,  on  the  ground  that  the  mortgagee's  right 
to  relief  does  not  depend  upon  any  original  equity  existing  in 
himself,  but  upon  the  right  of  the  mortgagor  against  his 
grantee,  to  which  right  the  mortgagee  succeeds,  and  that 
when  the  grantor  was  not  himself  liable  he  does  not  become 
a  surety,  and  that  it  is  necessary  that  he  should  be  a  surety 
to  enable  the  mortgagee  to  avail  himself  of  the  agreement  be- 
tween the  surety  and  principal.*     In  cases  of  this  kind  it  is 

*  Cleveland  v.  Southard,  25  Wis.  ron,  92  111.  583.     See  also,  in  this 

479.  connection.  Ward  v.  De   Oca,   120 

6  Norwood  V.  De  Hart,  30  N.  J.  Cal.   102,  52  Pac.  130;  Williams  v. 

Eq.  412;  King  v.  Whitely,  10  Paige,  Van  Geison,  79  N.  Y.  Supp.  95,  76 

465;    Crowell    v.    Hospital    of    St.  App.     Div.     592;     Young     Men's 

Barnabas,  27  N.  J.  Eq.  650;  Trot-  Christian  Ass'n  v.  Croft,  34  Or.  106, 

ter  V.  Hughes,  12  N.  Y.  74,  62  Am.  55  Pac.  439,  75  Am.   St.  Rep.  568, 

Dec.  137;  Mount  v.  Van  Ness,  33  in  which  it  is  held  that  a  grantee 

N.  J.  Eq.  262;  Crowell  v.  Currier,  of  mortgaged  premises  who  agrees 

27  N.  J.  Eq.  152.     See  Johnson  v.  to   pay   the   mortgage   debt   is   not 

Harder,  45  Iowa,  677;  Anthony  v.  personally    answerable    therefor    if 

Herman,    14    Kan.    494;    Ream    v.  his  immediate  grantor  was  not  per- 

Jack,  44  Iowa,  325 ;  Rogers  v.  Her-  sonally   bound.      See,   also,   to   the 


CHAP.  XXX.]         DEED   SUBJECT   TO    MORTGAGE. 


2085 


considered  that  the  grantee  does  not  become  personally  liable 
through  the  grantor  to  the  holder  of  the  mortgage  to  pay 
the  debt  to  him.  It  results  as  a  general  rule,  therefore,  that 
a  prior  mortgagee  cannot  enforce  any  personal  liability  upon 
a  subsequent  mortgagee  where  the  agreement  to  assume  a 
mortgage  is  contained  in  a  mortgage.'  This  rule  is  not 
changed  by  the  fact  that  the  assumption  of  the  prior  mort- 
gage is  contained  in  an  absolute  deed  intended  as  a  mort- 
gage.' In  several  of  the  States  a  mortgagee  may  enforce 
the  promise  of  a  grantee  to  assume  the  payment  of  a  mortgage 
as  if  it  had  been  made  to  him  directly.'    But  notwithstanding 


same  effect :  Kramer  v.  Gardner, 
104  Minn.  370,  22  L.R.A.(N.S.)  492, 
116  N.  W.  925,  and  note;  Bonhoff 
V.  Wiehorst,  108  N.  Y.  Supp.  437, 
57  Misc.  456;  Howard  v.  Robbins, 
73  N.  Y.  Supp.  172,  67  App.  Div. 
245,  aff'd  in  170  N.  Y.  498,  63  N.  E. 
530;  Biddle  v.  Pugh,  59  N.  J.  Eq. 
480,  45  Atl.  626.  And  see,  Clement 
V.  Willett,  105  Minn.  267,  17  L.R.A. 
(N.S.)  1094,  117  N.  W.  491,  127 
Am.  St.  Rep.  562;  Ross  v.  Kenni- 
son,  38  Iowa,  396. 

6  Garnsey  v.  Rogers,  47  N.  Y. 
233,  7  Am.  Rep.  440. 

■'^Garnsey  v.  Rogers,  47  N.  Y. 
233,  7  Am.  Rep.  440;  Gaffney  v. 
Hicks,  131  Mass.  124;  Arnaud  v. 
Grigg.  29  N.  J.  Eq.  482.  But  see 
Ricard  v.  Sanderson,  41  N.  Y.  179. 

8  Thorp  V.  Keokuk  Coal  Co.,  48 
N.  Y.  253 ;  Lawrence  v.  Fox,  20  N. 
Y.  268;  Campbell  v.  Smith,  8  Hun, 
6.  The  doctrine  that  when  a  person 
makes  a  promise  for  the  benefit  of 
a  third  person,  though  at  one  time 
questioned,  now  generally  prevails: 
Lamb  v.  Tucker,  42  Iowa,  118;  Bas- 
sett  V.  Hughes,  43  Wis.  319;  Miller 
V.  Winchell,  70  N.  Y.  437;  Ecrr  v. 


Beers,  24  N.  Y.  178,  80  Am.  Dec. 
327.  See,  also,  Ross  v.  Kennison, 
38  Iowa,  396;  Moses  v.  Dallas  Dist. 
Ct.,  12  Iowa,  139;  Hand  v.  Ken- 
nedy, 83  N.  Y.  149;  Corbett  v. 
Waterman,  11  Iowa,  86;  Fitzgerald 
V.  Barker,  70  Mo.  685;  Heim  v. 
Vogel,  69  Mo.  529;  Center  v.  Mc- 
Questen,  18  Kan.  480;  McDowell  v. 
Laev,  35  Wis.  171;  Scott  v.  Gill, 
19  Iowa,  187.  The  rule  is  laid 
down  in  Enos  v.  Sanger,  96  Wis. 
150,  37  L.R.A.  862,  70  N.  W.  1069, 
65  Am.  St.  Rep.  38,  as  follows: 
"Where  a  grantee  in  the  conveyance 
to  him,  assumes  and  agrees  to  pay 
the  debt  of  a  third  person  as  part 
of  the  consideration  for  his  pur- 
chase, there  is  no  necessity  for  any 
consideration  to  pass  from  such 
third  person  or  his  creditor  to  such 
grantee  to  support  such  agreement; 
a  portion  of  the  consideration  for 
the  purchase  being  left  in  such  gran- 
tee's hands,  appropriated  by  the 
grantor  to  the  payment  of  the  debt 
which  such  grantee  agrees  to  pay  in 
consideration  of  the  conveyance  and 
of  such  appropriation  of  the  pur- 
chase money,  he  cannot  be  heard 


2086  iHE  LAW  OF  DEEDS.  [CHAP.  XXX. 

this  rule,  it  is  necessary  that  the  grantee  be  personally  liable 
upon  the  mortgage,  which  the  grantee  has  assumed,  to  en- 
ble  the  holder  of  the  mortgage  to  enforce  the  liability  of  the 
grantee  upon  his  covenant.* 

§  1090.  In  Pennsylvania. — It  is  held  that  although  the 
grantor  may  not  be  personally  liable,  yet  if  the  grantee  as- 
sume the  payment  of  a  mortgage,  the  mortgagee  may  en- 
force this  liability  against  him.  A  conveyed  land  to  B  "under 
the  subject"  to  the  payment  of  a  mortgage  to  C.  The  deed 
under  which  A  held  contained  no  clause  that  it  was  "under 
and  subject"  to  a  mortgage.  C  brought  an  action  against 
B  to  recover  the  amount  of  the  mortgage,  and  offered  to 
prove  that  B,  when  he  accepted  the  deed  from  A,  made  an 
express  agreement  that  he  would  assume  the  payment  of  the 
mortgage,  and  that  the  mortgage  formed  part  of  the  consider- 
ation. The  lower  court  held  that  because  the  grantor  was 
under  no  obligation  to  pay  the  mortgage,  his  grantee  was 
not  liable  upon  his  promise.  But  the  supreme  court  said: 
"This  was  clearly  error.  The  consideration  was  the  price  of 
the  land.  It  was  nothing  to  Cochran's  vendees  what  the 
former  did  with  the  purchase  money.  He  saw  proper  to  ap- 
ply a  portion  of  it  to  the  payment  of  the  mortgages,  which 
bound  the  land  conveyed,  although  they  imposed  no  per- 
sonal liability  upon  him.  A  vendor  may  direct  how  the  pur- 
chase money  shall  be  paid.  He  may  reserve  it  to  himself, 
donate  it  to  a  public  charity,  or  may  make  such  other  disposi- 
tion of  it  as  may  best  meet  his  views,  and  if  his  vendee  agrees 

to  object  to  the  performance  of  his  grantee   thereby  becomes    liable   to 

contract   because    his    grantor    was  such    creditor;    and    such    liability 

not  liable  for  such  debt.    When  the  rests   solely  on   such  consideration 

grantor  makes   such   an  appropria-  and  such  promise." 

tion,   and  the  grantee,  for  a  suffi-  » Vrooman   v.   Turner,  69  N.   Y. 

cien't  consideration,  promises  to  pay  280,   25   Am.    Rep.    195.      See   Real 

the  amount  so  appropriated  to  tlie  Estate  Trust  Co.  v.  Balch,  45  N.  Y. 

creditor  of  such  third  person,  such  Sup.   Ct.   528. 


CfiAP.  XXX.]  DEED   SUBJECT    TO    MORTGAGE. 


2087 


to  pay  it  according  to  such  directions,  he  cannot  set  up  as  a 

defense  that  his  vendor  was  under  no  duty  to  apply  it  in  such 
»>  1 


manner. 


§  1091.  Enforcing  grantee's  promise  before  payment 
by  grantor. — When  the  grantee  has  assumed  the  payment 
of  a  mortgage,  the  grantor  may  maintain  an  action  on  this 
promise  without  first  having  paid  the  debt  which  the  grantee 
assumed  and  agreed  to  pay.^     Mr.  Justice  Day  says  that  the 


*Merriman  v.  Moore,  90  Pa.  St 
78,  per  Paxon,  J.,  See,  also,  in 
this  connection,  Marble  etc.  Bank 
V.  Mesarvey,  101  la.  285,  70  N.  W. 
198;  Crane  v.  Stinde,  156  Mo.  262, 
55  S.  W.  863,  55  S.  W.  907;  Hare 
V.  Murphy,  45  Neb.  809,  29  L.R.A. 
851,  64  N.  W.  211;  McGregor  v. 
Bldg.  etc.  Ass'n  (Neb.)  99  N.  W. 
509;  McKay  v.  Ward,  20  Utah, 
149,  46  L.R.A.  623,  57  Pac.  1024; 
Enos  V.  Sanger,  96  Wis.  150,  37 
L.R.A.  862,  70  N.  W.  1069,  65  Am. 
St.  Rep.  38.  For  cases  that,  as 
a  general  principle,  a  promise  by 
one  to  pay  the  debt  of  another  can- 
not be  directly  enforced  by  the 
creditor,  see  Mellen  v.  Whipple,  1 
Gray,  317 ;  Prentice  v.  Brimhall,  123 
Mass.  291;  Second  Nat.  Bank  v. 
Grand  Lodge,  98  U.  S.  123,  25  L. 
ed.  75;  Gautzert  v.  Hoge,  73  III. 
30;  Crowell  v.  Currier,  27  N.  J. 
Eq.  152 ;  Crowell  v.  Hospital  of  St. 
Barnabas,  27  N.  J.  Eq.  650;  Ex- 
change Bank  v.  Rice,  107  Mass. 
37,  9  Am.  Rep.  1 ;  Coffin  v.  Adams, 
131  Mass.  133;  Locke  v.  Homer,  131 
Mass.  93,  41  Am.  Rep.  199;  Pettee 
V.  Peppard,  120  Mass.  522;  Brewer 
V.  Dyer,  7  Cush.  337;  Bohanan  v. 
Pope,  42  Me.  93 ;  Motley  v.  Manu- 
facturers' Ins.  Co.,  29  Me.  337,  50 


Am.  Dec.  591 ;  Klapworth  v.  Dress- 
ier, 13  N.  J.  Eq.  62,  78  Am.  Dec. 
69;  Stuart  v.  Worden,  42  Mich. 
154;  Booth  v.  Connecticut  Mut. 
Life  Ins.  Co.,  43  Mich.  299;  Unger 
V.  Smith,  44  Mich.  22;  Higman  v. 
Stewart,  38  Mich.  513 ;  Hicks  v.  Mc- 
Garry,  38  Mich.  667.  For  cases 
contra,  see  Merriam  v.  Moore,  90 
Pa.  St.  78;  Urquhart  v.  Brayton,  12 
R.  I.  169.  And  see,  also.  Justice  v. 
Tallman,  86  Pa.  St.  147 ;  Hofif's  Ap- 
peal, 24  Pa.  St.  200;  Townsend  v. 
Long,  77  Pa.  St.  143,  18  Am.  Rep. 
438. 

2  Locke  V.  Homer,  131  Mass.  93, 
41  Am.  Rep.  199 ;  Brewer  v.  Worth- 
ington,  10  Allen,  329;  Furnas  v. 
Durgin,  119  Mass.  500,  20  Am.  Rep. 
341 ;  Foster  v.  Atwater,  42  Conn. 
244;  Wilson  v.  Stilwell,  9  Ohio  St. 
467,  75  Am.  Dec.  477;  Valentine  v. 
Wheeler,  122  Mass.  566;  Stout  v. 
Folger,  34  Iowa,  71,  11  Am.  Rep. 
138;  Gregory  v.  Hartley,  6  Neb. 
356;  Snyder  v.  Summers,  1  Lea 
(Tenn.),  534,  27  Am.  Rep.  778; 
Gaffney  v.  Hicks,  124  Mass.  301; 
Fiske  V.  Tolman,  124  Mass.  254,  26 
Am.  Rep.  659;  Cilley  v.  Fenton, 
130  Mass.  323.  And  see  Braman 
V.  Dowse,  12  Cush.  227;  Belloni 
V.  Freeborn,  63  N.  Y.  683 ;  Lathrop 


2088  THE  LAW   OF  DEEDS.  [CHAP.  XXX. 

following  doctrines  will  be  found  to  underlie  the  authorities : 
"That  if  a  condition  or  promise  be  only  to  indemnify  and 
save  harmless  a  party  from  some  consequence,  no  action  can 
be  maintained  until  actual  damage  has  been  sustained  by 
the  plaintiff.  But  if  the  covenant  or  promise  be  to  perform 
some  act  for  the  plaintiff's  benefit,  as  well  as  to  indemnify 
and  save  him  harmless  from  the  consequences  of  nonper- 
formance, the  neglect  to  perform  that  act  is  a  breach  of  con- 
tract, and  will  give  an  immediate  right  of  action.'"  In  a 
case  in  Maine,  A  mortgaged  a  tract  of  land  to  B,  and  subse- 
quently conveyed  the  same  land  to  C  by  a  deed  of  warranty, 
thus  acknowledging  that  the  consideration  was  paid.  A  re- 
ceived C's  note  and  mortgage  for  part  of  the  consideration, 
and  left  the  balance  in  the  hands  of  C,  who  promised  to  pay 
the  same  to  B,  and  take  up  A's  note  and  mortgage.  C,  how- 
ever, neglected  to  do  this,  and  the  note  and  mortgage  to  B 
remained  unpaid.  The  court  declared,  however,  that  as  the 
note  and  mortgage  had  not  been  taken  up,  A  could  not  re- 
cover the  money  placed  in  the  hands  of  C,  but  only  nominal 
damages.* 

§  1092.  Discharge  of  mortgage  by  grantor. — Where 
a  grantee  of  land  subject  to  a  mortgage  takes  a  bond  from 
the  grantor  that  the  latter  will  keep  the  former  harmless  from 
a  second  mortgage,  and  will  cause  it  to  be  assigned  to  him 
within  six  months,  the  grantee  is  entitled  upon  a  failure  to 
receive  such  assignment  within  six  months,  to  maintain  an 
action,  even  after  the  foreclosure  of  the  first  mortgage,  and, 
in  case  the  property  is  not  worth  more  than  the  aggregate 
of  the  two  mortgages,  to  recover  the  difference  between  the 

V.  At  wood,  21  Conn.  117.    See,  also,  3  In    Stout   v.    Folger,    34   Iowa, 

Kreling   v.    Kreling,   118   Cal.   413,       71,  74,  11  Am.  Rep.  138. 

50   Pac.   546;    Stichter   v.   Cox,   52  *  Burbank  v.  Gould,  15  Me.  11& 

Neb.  532,  72  N.  W.  848;  CoUander 

V.  Edmison,  8  S.  D.  81,  65  N.  W. 

425. 


CHAP.  XXX.]  DEED   SUBJECT    TO    MORTGAGE.  2089 

value  of  the  land  and  the  amount  due  on  the  first  mortgage.* 
Where  the  grantor  has  executed  a  warranty  deed,  and  has 
covenanted  to  pay  off  a  mortgage  upon  the  land  conveyed, 
he  cannot,  by  allowing  the  mortgage  to  be  foreclosed  and  re- 
deeming the  land,  take  the  title  to  himself.  A  conveyed  to 
B  a  portion  of  a  lot  on  which  there  was  a  mortgage,  and  then 
permitted  the  mortgage  to  be  foreclosed  upon  the  whole  lot, 
and  entered  into  a  collusive  arrangement  with  C  for  the  pur- 
pose of  defrauding  B.  The  lot  v/as  bid  in  by  C,  and  he 
refused  to  release  to  B,  except  upon  compliance  with  certain 
terms.  The  court  held  that  C  should  be  treated  as  holding 
the  portion  purchased  by  B,  as  trustee  for  B's  benefit,  and, 
so  far  as  B  was  concerned,  as  A's  mortgagee.®  A  grantee 
under  a  deed  with  covenants  of  seisin  and  warranty,  executed 
a  mortgage  for  the  purchase  money  to  his  grantor  by  a  deed 
containing  the  same  covenants.  The  grantee  was  evicted  by 
force  of  a  paramount  title.  He  was  allowed  to  maintain  an 
action  against  his  grantor  on  the  latter's  covenant  of  seisin, 
and  it  was  held  that  the  covenants  of  the  mortgagor  did 
not  operate  as  a  rebutter.'' 

§  1093.  Release  of  covenant  by  grantor. — Two  op- 
posite views  prevail  as  to  the  power  of  the  grantor  to  de- 
prive a  mortgagee  of  the  stipulation  made  by  a  grantee  to  as- 
sume a  mortgage.  Where  the  covenant  is  considered  one  of 
indemnity  only,  of  which  the  mortgagee  may  take  advantage 
by  a  species  of  equitable  subrogation,  the  parties  to  the  cov- 
enant may  at  any  time  before  a  bill  for  foreclosure  is  filed, 
discharge  the  liability  by  a  reconveyance,  and  as  there  is  then 
no  longer  any  contract  of  indemnity,  there  can  be  no  right 
to  which  the  mortgagee  can  be  subrogated.^     And  this  may 

6  Coombs  V.  Jenkins,  16  Gray,  153.  'Sumner    v.    Barnard,    12    Met. 

See  Wilcox   v.   Musche,   39   Mich.  459. 

101.  *  Youngs   V.   Trustees   of   Public 

«  Huxley    v.    Rice,   40    Mich.    7Z.  Schools,  31  N.  J.  Eq.  290;  Crowell 

See  Colby  v.  Cato,  47  Ala.  247.  v.  Hospital  of  St.  Barnabas,  27  N. 


2090 


THE  LAW   OF   DEEDS. 


[chap.  XXX. 


be  done  under  this  view  by  a  simple  release.'  But  on  the 
other  hand,  in  other  courts,  the  promise  is  regarded  as  ir- 
revocable, and  it  is  held  that  where  the  deed  to  the  grantee 
is  absolute,  he  incurs  an  absolute  obligation  for  its  payment 
by  assuming  it,  and  that  without  the  consent  of  the  mortgagee, 
the  grantor  cannot  release  this  obligation.^ 

§  1094.  Rights  of  grantor. — If  the  grantor  is  compelled 
to  pay  the  amount  of  a  mortgage  which  the  grantee  has  as- 
sumed and  agreed  to  pay,  he  may  recover  the  amount  so 
paid  from  the  grantee.^  The  grantor  may  have  the  mortgage 
assigned  to  himself  and  foreclose  it,  and  sue  for  the  deficiency 
as  well  as  sue  on  the  agreement.^  A  mortgagor  who  in  a 
case  of  this  kind  is  forced  to  pay  the  mortgage,  is  subrogated 
to  the  benefit  of  the  security,  and  becomes  an  equitable  as- 
signee of  it.*    The  grantor  is  entitled  to  recover  as  damages 


J.  Eq.  650;  Laing  v.  Byrne,  34  N. 
J.  Eq.  52. 

8  Youngs  V.  Trustees  of  Public 
Schools,  31  N.  J.  Eq.  290;  Trustees 
for  Support  of  Public  Schools  v. 
Anderson,  30  N.  J.  Eq.  366.  See, 
also,  Gold  V.  Odgen,  61  Minn.  88, 
63  N.  W.  266. 

1  Douglass  V.  Wells,  18  Hun,  88; 
Campbell  v.  Smith,  71  N.  Y.  26, 
27  Am.  Rep.  5;  Hartley  v.  Harrison, 
24  N.  Y.  170;  Kelly  v.  Roberts,  40 
N.  Y.  432;  Bassett  v.  Hughes,  43 
Wis.  319;  Whiting  v.  Gearty,  14 
Hun,  498;  Flagg  v.  Munger,  9  N. 
Y.  483.  See,  also,  Judson  v.  Dada, 
79  N.  Y.  273;  Durham  v.  Bischof, 
47  Ind.  211.  See,  also,  Starbird  v. 
Cranston,  24  Colo.  20,  48  Pac.  652. 
Cannot  release  after  adoption  of 
contract  by  mortgagee.  See  Gibson 
V.  Hambleton,  52  Neb.  601,  72  N. 
W.  1033;  Field  v.  Thistle,  58  N. 
J.  Eq.  339,  43  Atl.  1072. 


2  Wood  V.  Smith,  51  Iowa,  156; 
Lappen  v.  Gill,  129  Mass.  349.  See, 
also,  Haas  v.  Dudley,  30  Or.  355,  48 
Pac.  168;  Devine  v.  Mortgage  Co., 
(Tex.)  48  S.  W.  585;  In  re  May. 
218  Pa.  64,  67  Atl.  120. 

8  Braman  v.  Dowse,  12  Cush.  227 ; 
Furnas  v.  Durgin,  119  Mass.  500, 
20  Am.  Rep.  341 ;  Strohauer  v. 
Voltz,  42  Mich.  444;  Crowell  v. 
Hospital  of  St.  Barnabas,  27  N.  J. 
Eq.  650;  Jewett  v.  Draper,  6  Allen, 
434;  Bolles  v.  Beach,  22  N.  J.  L. 
680,  53  Am.  Dec.  263;  Mills  v. 
Watson,  1  Sweeny,  374.  See,  also, 
Bank  v.  Snow,  197  Mass.  339,  83 
N.  E.  1099. 

*Ayers  v.  Dixon,  78  N.  Y.  318; 
Kinnear  v.  Lowell,  34  Me.  299; 
Risk  V.  Hoflfman,  69  Ind.  137; 
Baker  v.  Terrell,  8  Minn.  195.  See, 
also,  Rubens  v.  Prindle,  44  Barb. 
336;  Marsh  v.  Pike,  1  Sand.  Ch. 
210;    Cornell  v.    Prescott,  2  Barb. 


CHAP.  XXX.]  DEED   SUBJECT    TO    MORTGAGE.  2091 

the  amount  of  the  mortgage,  and  the  interest  due  thereon,^ 
or  the  amount  which  he  has  paid  where  he  has  discharged 
it  before  commencing  his  action.® 

§  1095.     Deed  to  tenants  in  common. — If  the  grantees 

assuming  the  payment  of  a  mortgage  are  tenants  in  common, 
they  are  jointly  liable  for  a  breach  of  the  agreement.  Thus, 
three  grantees  were  held  to  be  jointly  liable  under  a  deed 
which  conveyed  land  to  them,  one-half  to  one  and  the  other 
half  to  the  other  two,  the  habendum  being  in  the  same  form, 
and  the  deed  stating  that  the  land  was  subject  to  the  mortgage, 
which  "the  said  grantees  are  to  assume  and  pay."  '  A  and 
B  were  each  the  owners  of  an  undivided  one-half  of  a  tract 
of  land.  A  mortgaged  his  interest  in  the  land  to  C,  and 
subsequently,  with  his  cotenant  B,  conveyed  the  land  to  D 
and  E,  D  receiving  two-thirds  and  E  one-third,  by  two  separate 
deeds,  in  each  of  which  the  grantee  agreed  to  assume  and 
pay  the  mortgage.  After  the  mortgage  became  due,  A  com- 
menced suit  against  D  and  E  for  foreclosure,  and  it  was  held 
that  it  was  not  necessary  for  him  to  first  pay  off  the  mortgage 
before  bringing  his  suit,  and  that  the  assumption  of  the 
mortgage  by  D  and  E  did  not  extend  it  over  the  whole  tract 
of  land,  nor  was  it  equivalent  to  an  understanding  that  it 
should  be  a  part  of  the  purchase  money  so  as  to  entitle  the 
grantors  to  claim  a  vendor's  lien  on  the  whole  tract.' 

16;   Marshall  v.  Davies,   78  N.  Y.  part,  will  not  prevent  the  enforce- 

414.  ment   of   the   mortgage   as   against 

6  Locke  V.  Homer,  131  Mass.  93,  that  part:     Groves   v.   Sentell,   153 

41    Am.    Rep.    199.      See    Cilley   v.  U.  S.  465. 

Fenton,    130   Mass.    123.  8  Abell   v.  Coons,  7  Cal.   105,  68 

6Toun  V.  Wood,  37  111.  512.    See  Am.  Dec.  229.     Where  a  purchaser 

Hall  V.  Way,  47  Conn.  467;  Elmer  of   a  half   interest   in   land   agrees 

V.  Welch,  47  Conn.  46.  to  pay  half  of  the  mortgage  debt 

'  Fenton  v.  Lord,  128  Mass.  466.  resting  on  it,  he  is  not  entitled  to  a 
Where  property  is  covered  by  an  release  of  his  half  interest  on  ten- 
indivisible  mortgage,  the  voluntary  dering  the  amount  of  one-half  of 
partition  of  it,  and  a  subsequent  the  debt:  Ward  v.  Green  (Tex. 
execution   of    a   mortgage   on   one  Civ.  App.,  Dec.  5,  1894),  28  S.  W. 


2092  THE   LAW   OF   DEEDS.  [CHAP.  XXX. 

§  1096.  Notice  of  rights  of  mortgagee  from  assumption 
clause  in  deed. — A  statement  contained  in  a  deed  which  is 
duly  recorded,  that  the  deed  is  made  subject  to  a  mortgage 
held  by  a  third  person,  is,  it  seems,  constructive  notice  to 
all  persons  claiming  under  such  deed  of  the  rights  of  the 
holder  of  the  mortgage  referred  to.' 

§  1097.  Grantee's  right  to  deduct  mortgages. — A  gran- 
tee who  has  received  a  deed,  and  has  executed  a  mortgage 
upon  the  same  property  to  secure  the  payment  of  the  pur- 
chase  money,  may  pay  off  encumbrances  upon  the  land,  the 
existence  of  which  he  knew  at  the  time  he  made  the  contract, 
and  may  deduct  the  amount  so  paid  from  the  amount  due 
upon  the  mortgage  made  by  him.* 

§  1098.     Grantee's  purchase  of  outstanding  title. — If, 

subsequently  to  the  execution  of  the  mortgage,  the  grantee 
from  the  mortgagor  purchases  a  paramount  title  outstanding 
in  a  third  person,  the  mortgagee  cannot  claim  the  benefit  of 
this  purchase,  nor  will  it  operate  as  a  confirmation  of  his 
title.* 

§  1099.  Deeds  subject  to  two  mortgages. — When  there 
are  two  mortgages  upon  the  property,  and  the  grantee,  at 
the  time  of  the  purchase,  agrees  with  the  mortgagor  to  pay 
the  mortgages,  and  retains  a  part  of  the  consideration  money 
for  that  purpose,  and  enters  into  possession,  he  is  not  per- 
mitted, by  taking  a  conveyance  from  the  first  mortgagee,  to 
set  it  up  against  the  second  mortgagee,  notwithstanding  the 
mortgagor  deceived  him  as  to  the  amount  due.* 

Rep.  574.     A  purchaser  of  a  half  » Campbell  v.  Vedder,  1  Abb.  N. 

interest  subject  to  a  mortgage,  one-  Y.   App.   295;    Crofut   v.   Wood,  3 

half  of  which  he  assumes,  is  liable  Hun,  571. 

on  a  deficiency  judgment  after  fore-  l  Wolbert   v.    Lucas,    10    Pa.    St 

closure  only  to  the  extent  of  half  73,  49  Am.  Dec.  578. 

the  mortgage  debt,  after  deducting  ^  Knox  v.  Easton,  38  Ala.  345. 

half  of  the  price  for  which  the  land  "  Converse  v.  Cook,  8  Vl  164. 

&old :    Blass  v.  Terry,  87  Hun,  563. 


CHAPTER  XXXI. 


DEED    WHEN    A   MORTGAGE. 


§  1100. 

In  general. 

§  1117. 

Absolute  deed  made  upon 

1101. 

Rule  at  law. 

application  for  loan. 

1102. 

Requirements    as   to   time 

1118. 

Presumption  of  loan. 

of   execution. 

1119. 

Sale  may  have  been  made. 

1103. 

Deed  and  defeasance  may 

1120. 

Delivery  of   deed  in  pay- 

be shown  by  parol  evi- 

ment of  debt. 

dence  to  be  parts  of  same 

1120a. 

Note    for   deficiency   after 

transaction. 

payment  of  a  pre-exist- 

1104. 

Condition     in    deed    con- 

ing debt. 

strued  as  lien. 

1121. 

Purchase     of     mortgaged 

1105. 

Cancellation  of  defeasance. 

premises  by  mortgagee. 

1106. 

Transfer  of  absolute  title. 

1122. 

Liability  for  taxes. 

1107. 

Waiver    of    right    of    re- 

1123. 

Comments. 

demption. 

1124. 

Third  person  as  purchaser. 

1108. 

Confidential   relations. 

1125. 

Agreement     to      reconvey 

1109. 

Notice  given  by  recording. 

showing  absolute  sale. 

1110. 

Conditional  sale  or  mort- 

1126. 

Agreement     that     grantee 

gage. 

may  sell. 

nil. 

Purchase  money  mortgage 

1127. 

Surplus   after   sale. 

by  married  woman. 

1128. 

Agreement     that     grantee 

Ilia. 

Same   by   natural   guardian 

may  buy. 

of  minors. 

1129. 

Where  no  note  is  given. 

1112. 

Absolute     deed     as     con- 

1130. 

Quitclaim  deed. 

sidered     in     equity     when 

1131. 

Continued     possession    of 

executed  as  security  for 

grantor. 

money. 

1132. 

Payment  of  interest. 

1113. 

Administrators'     and     ju- 

1133. 

Inadequacy  of  price. 

dicial  sales. 

1134. 

Character    of    transaction 

1114. 

Third      person      disputing 

fixed   in  beginning. 

character  of   instrument. 

1135. 

Sale  and  resale. 

1115. 

Whenever      debt      exists, 

1136. 

Parol  evidence. 

transaction    is    a    mort- 

1137. 

Declarations    of    party    as 

gage. 

evidence. 

1116. 

Voluntary  deed  and  agree- 

1138. 

Effect  of  delay  in  seeking 

ment  for  mortgage. 

relief. 

2093 

2094 


THE  LAW   OF   DEEDS. 


[chap.  XXX. 


S  1139.    Judgment     creditor     may 
show  that  debtor's  deed 
is   a  mortgage. 
Sheriff's  deed. 
Absolute  owner  as  to  third 

parties. 
Notice  in  bankruptcy  pro- 
ceedings. 
Payment  of  debt 


1140. 
1141. 

1142. 

1143. 


Parol  evidence  to  show  a 
mortgage  a  conditional 
sale. 

Proof  of  other  conditions. 

Time  for  redemption. 

Presumption    in    doubtful 
cases. 
1147a.  Trend  of  authority. 


§  1144. 


1145. 
1146. 
1147. 


§  1100.  In  general. — An  absolute  deed  in  form  may 
not  in  reality  be  such,  because  there  exists  either  a  written 
agreement  for  a  reconveyance,  or  a  parol  understanding  that 
it  was  made  solely  as  security  for  a  debt.  On  the  issue  as  to 
whether  a  deed  was  intended  as  a  conveyance  or  a  security,  the 
intention  of  the  parties  is  the  infallible  test,  such  intention 
to  be  gathered  from  all  the  surrounding  circumstances.^  The 
law  will  declare  the  transaction  as  it  really  is.  But  equity 
will  consider  an  absolute  deed  a  mortgage,  when  at  law 
it  would  not  be  so  treated.  Hence,  there  will  be  found  a 
difference  between  the  rules  of  law  and  equity  as  to  the 
character  of  the  instrument. 

§  1101.  Rule  at  law. — At  law,  to  constitute  a  mortgage, 
the  grantor  himself,  and  not  a  third  person,  must  be  en- 
titled to  the  benefit  of  a  defeasance.^     But  this  is  not  the 


iReavis  v.  Reavis,  103  Fed.  813; 
Miller  v.  Miller,  101  Md.  600,  61 
Atl.  210;  Saunders  v.  Ayres,  63 
Neb.  271,  88  N.  W.  526;  Luesenhof 
V.  Einsfeld,  93  App.  Div.  68,  87 
N.  Y.  S.  268,  reversed  184  N.  Y. 
590,  77  N.  E.  1191;  Weiseham  v. 
Hocker,  7  Okla.  250,  54  Pac.  464; 
Rubo  V.  Bennett,  85  111.  App.  473; 
Gillespie  v.  Hughes,  86  111.  App. 
202;  Johnson  v.  Prosperity  Loan  & 
Bldg.  Ass'n,  94  111.  App.  260;  Ho- 
wat  V.  Howat,  101  III  App.  158; 
In  re  Schmidt,  114  La.    78,  38  So. 


26;  Flynn  v.  Holmes,  145  Mich. 
606,  11  L.R.A.(N.S.)  209,  108  N. 
W.  685,  13  Detroit  Leg.  N.  448; 
Boork  v.  Beasley,  138  Mo.  455,  40  S. 
W.  101 ;  Chance  v.  Jennings,  159 
Mo.  544,  61  S.  W.  177;  Harrison  v. 
Mowry,  47  So.  724;  Beidleman  v. 
Koch,  85  N.  E.  977 ;  Elliott  v.  Bozo- 
Rit,  97  Pac.  632 ;  Brown  v.  Bank  of 
Sumter,  55  S.  C.  51,  32  S.  E.  816; 
Sadler  v.  Taylor,  49  W.  Va.  104, 
38  S.  E.  583. 

2  Treat  v.  Strickland,  23  Me.  234 ; 
Stephenson    v.    Thompson,    13    111. 


CHAP.  XXXI.]  DEED   WHEN   A   MORTGAGE. 


2095 


rule  in  equity,  and  the  defeasance  may  be  in  favor  of  some 
person  other  than  the  grantor,  and  the  transaction  will  be 
a  mortgage.^  It  is  not  necessary  that  there  be  an  express 
provision  avoiding  the  deed  upon  the  performance  of  the 
condition.  If  the  instrument  itself  supplies  the  evidence  that 
it  was  intended  to  secure  the  payment  of  a  debt  or  the  per- 
formance of  an  obligation,  it  is  a  mortgage.^  When,  at  the 
time  of  the  execution  of  an  absolute  conveyance  a  separate 
defeasance  or  agreement  to  reconvey  is  also  executed,  the 
transaction,  at  law,  will  constitute  a  mortgage.^     Where  the 


186;  Bickford  v.  Daniels,  2  N.  H. 
71;  Payne  v.  Patterson,  11  Pa.  St. 
134;  Warren  v.  Lovis,  S3  Me.  463; 
Shaw  V.  Erskine,  43  Me.  371 ;  Penn- 
sylvania Life  Ins.  Co.  v.  Austin, 
42  Pa.  St.  257;  Marvin  v.  Tits- 
worth,  10  Wis.  320;  Carr  v.  Rising, 
62  111.  14;  Magnusson  v.  Johnson, 
11  111.  156;  Micou  v.  Ashurst,  55 
Ala.  607;  Hill  v.  Grant,  46  N.  Y. 
496;  Flagg  v.  Mann,  14  Pick.  467, 
479;  Low  v.  Henry,  9  Cal.  538; 
Beebe  v.  Wisconsin  etc.  Co.,  117 
Wis.  328,  93  N.  W.  1103. 

SReigard  v.  McNeil,  38  111.  400; 
Stinchfield  v.  Milliken,  71  Me.  567; 
Sahler  v.  Signer,  37  Barb.  329;  s.  c. 
44  Barb.  606;  Umfreville  v.  Keeler, 
1  Thomp.  &  C.  486;  Weed  v.  Stev- 
enson, Clarke  Ch.  166;  Barton  v. 
May,  3  Sand.  Ch.  450;  Spicer  v. 
Hunter,  144  Abb.  Pr.  4;  McBurney 
V.  Wellman,  42  Barb.  390;  Ryan  v. 
Dox,  34  N.  Y.  307,  90  Am.  Dec. 
696;  Jeffrey  v.  Hursh,  58  Mich. 
246,  25  N.  W.  176;  27  N.  W.  7; 
Martin  v.  Pond,  30  Fed.  15;  Lind- 
say v.  Matthews,  17  Fla.  575;  First 
Nat.  Bank  v.  Ashmead,  23  Fla. 
379,  2  So.  657.  See,  also,  Robinson 
V.  Robinson,  9  Gray,  447,  69  Am. 
Dec.  301 ;  Chase  v.  Peck,  21  N.  Y. 


581;  Balduff  v.  Griswold,  9  Okla. 
438,  60  Pac.  223;  Fisk  v.  Steward, 
24  Minn.  97;  Robinson  v.  Lincoln 
Sav.  Bank,  85  Tenn.  363,  3  S.  W. 
656;  Thacker  v.  Morris,  52  W.  Va. 
220,  43  S.  E.  141,  94  Arn.  St.  Rep. 
928;  Clark  v.  Seagraves,  186  Mass. 
430,  71  N.  E.  813. 

*  Lanfair  v.  Lanfair,  18  Pick. 
299;  Steel  v.  Steel,  4  Allen,  417; 
Adams  v.  Stevens,  49  Me.  362 ;  Old- 
ham V.  Halley,  2  Marsh.  J.  J.  113; 
Taylor  v.  Weld,  5  Mass.  109 ;  Scott 
V.  McFarland,  13  Mass.  309;  Aus- 
tin V.  Downer,  25  Vt.  558.  See, 
also,  Ferguson  v.  Miller,  4  Cal.  97; 
Whitcomb  v.  Sutherland,  18  111. 
578;  Goddard  v.  Coe,  55  Me.  385; 
Nugent  V.  Riley,  1  Met.  117,  35 
Am.  Dec.  355;  Kent  v.  Allbrittain, 
5  Miss.  (4  How.)  317;  Perkins  v. 
Dibble,  10  Ohio,  433,  36  Am.  Dec. 
97 ;  Whitney  v.  French,  25  Vt.  663 ; 
Skinner  v.  Cox,  15  N.  C.  59;  Baker 
V.  Firemens  Fund  Ins.  Co.,  79  Cal. 
34,  21  Pac.  357;  Johnson  v.  Pros- 
perity Law  &  Bldg.  Ass'n,  94  111. 
App.  260;  Renton  v.  Gibson,  148 
Cal.  650,  84  Pac.  186;  lodence  v. 
Peters,  64  Neb.  425,  89  N.  W.  1041. 

5  Shaw  V.  Erskine,  43  Me.  371; 
Warren    v.    Lovis,    53    Me.    4d3; 


2096 


THE  LAW  OF  DEEDS. 


[chap.  XXXI. 


deed  and  defeasance  have  been  executed  and  delivered  at 
the  same  time  and  form  parts  of  one  transaction,  the  courts 
have  universally  considered  them  as  constituting  a  legal  mort- 


Clement  v.  Bennett,  70  Me.  207; 
Mills  V.  Darling,  43  Me.  565;  Um- 
benhower  v.  Miller,  101  Pa.  St.  71 ; 
Blaney  v.  Bearce,  2  Me.  132 ;  Deck- 
er V.  Leonard,  6  Lans.  264;  Bayley 
V.  Bailey,  5  Gray,  505;  Nicolls  v. 
McDonald,  101  Pa.  St.  514;  Murphy 
V.  Caley,  1  Allen,  107;  Judd  v. 
Flint,  4  Gray,  557;  Lane  v.  Shears, 

1  Wend.  433;  Clark  v.  Henry,  2 
Cow.  324;  Peterson  v.  Qark,  15 
Johns.  205;  Henry  v.  Davis,  7 
Johns  Ch.  40;  Hall  v.  Van  Cleve, 
11  N.  Y.  Leg.  Obs.  281;  Brown  v. 
Dean,  3  Wend.  208 ;  Weed  v.  Stev- 
enson, Clarke  Ch.  166;  Lanahan  v. 
Scars,  102  U.  S.  318,  26  L.  ed.  180; 
Dow  V.  Chamberlin,  5  McLean, 
281;  Baxter  v.  Dear,  24  Tex.  17, 
76  Am.  Dec.  89;  Hammonds  v. 
Hopkins,  3  Yerg.  525;  Caruthers  v. 
Hunt,  18  Iowa,  576;  Enos  v.  Suth- 
erland, 11  Mich.  538;  Freeman  v. 
Baldwin,  13  Ala.  246;  Sims  v. 
Gaines,  64  Ala.  392;  Marshall  v. 
Stewart,  17  Ohio,  356;  Reynolds  v. 
Scott,  Brayt.  75;  Clark  v.  Lyon,  46 
Ga.  202;  Walker  v.  Tiffin  Min.  Co., 

2  Colo.  89;  Friedley  v.  Hamilton, 
17  Serg.  &  R.  70,  17  Am.  Dec.  638; 
Manufacturers  &  Mechanics'  Bank 
V.  Bank  of  Pennsylvania,  7  Watts 
&  S.  335,  42  Am.  Dec.  240;  Guthrie 
v.  Kahle,  46  Pa.  St.  331 ;  Jaques  v. 
Weeks,  7  Watts,  261 ;  Johnston  v. 
Gray,  16  Serg.  &  R.  361,  16  Am. 
Dec.  577 ;  Houser  v.  Lament,  55 
Pa.  St.  311,  93  Am.  Dec.  755;  Kerr 
V.  Gilmore,  6  Watts,  405;  Colwell 
V.  Woods,  .3  Watts,  188.  27  Am. 
Dec.    345;    Stocver    v.    Stoever,    9 


Serg.  &  R.  434;  Plato  v.  Roe,  14 
Wis.  453;  Second  Ward  Bank  v. 
Upmann,  12  Wis.  499;  Knowlton 
v.  Walker,  13  Wis.  264;  Brinkman 
V.  Jones,  44  Wis.  498;  Sharkey  v. 
Sharkey,  47  IMo.  543;  Copeland  v. 
Yoakum,  38  Mo.  349;  Preschbaker 
V.  Feaman,  32  111.  475 ;  Ewart  v. 
Walling,  42  111.  453;  Crassen  v. 
Swoveland,  22  Ind.  427;  Harbison 
V.  Lemon,  3  Blackf.  51,  23  Am. 
Dec.  376;  Watkins  v.  Gregory,  6 
Blackf.  113;  Mason  v.  Heame,  1 
fiusb.  Eq.  88;  Robinson  v.  Wil- 
loughby,  65  N.  C.  520;  Ogden  v. 
Grant,  6  Dana,  473 ;  Edrington  v. 
Harper,  3  Marsh.  J.  J.  353,  20  Am. 
Dec.  145 ;  Honore  v.  Hutchings,  8 
Bush,  687;  Archambau  v.  Green,  21 
Minn.  520;  Benton  v.  Nicoll,  24 
Minn.  221;  Hill  v.  Edwards,  11 
Minn.  22;  Bunker  v.  Barron,  79 
Me.  62,  1  Am.  St.  Rep.  282,  8  At!. 
253;  Snow  v.  Pressey,  82  Me.  552, 
20  Atl.  78;  Stowe  v.  Merrill,  11  Me. 
550 ;  Knight  v.  Dyer,  57  Me.  174,  99 
Am.  Dec.  765;  Cosby  v.  Buchanan, 
81  Ala.  574,  1  So.  898;  Rogers  v. 
Jones,  92  Cal.  80,  28  Pac.  97;  Smith 
V.  Smith,  80  Cal.  323;  Malone  v. 
Roy,  94  Cal.  341,  29  Pac.  712; 
Gaither  v.  Clarke,  67  Md.  18,  8  Atl. 
740;  Short  v.  Caldwell,  155  Mass. 
57,  28  N.  E.  1124;  Gunn's  Appeal, 
55  Conn.  149,  10  Atl.  498;  Morrison 
V.  Markham,  78  Ga.  161,  1  S.  E.425; 
Jackson  v.  Lynch,  129  111.  72,  22 
N.  E.  246;  Kelley  v.  Lachman,  2 
Idaho,  1111,  29  Pac.  849;  Radford 
V.  Folsom,  58  Iowa,  473,  12  N.  W 
536;   Short   v.  Caldwell,   155   Mass. 


CHAP.  XXXI.]  DEED   WHEN  A   MORTGAGE. 


2097 


gage.  Thus,  in  legal  effect,  a  lease  in  which  the  lessor 
acknowledges  the  receipt  in  advance  of  the  stipulated  rent 
of  the  leased  premises  during  the  terms,  and  in  which  the 
lessee  agrees  to  reconvey  upon  the  payment  of  the  sum  ad- 
vanced as  rent  and  interest  thereon,  is  a  mortgage.*  The 
law  presumes  a  legal  mortgage  from  the  fact  that  the  con- 
veyance and  defeasance  are  executed  or  agreed  upon  at  the 
same  time.'  If,  however,  the  grantee  had  no  knowledge 
of  the  execution  of  the  deed,  a  defeasance  made  by  him  upon 
being  informed  of  it  is  sufficient.'  At  law,  to  constitute  a 
mortgage,  an  agreement  for  reconveyance,  even  though  it 
is  made  simultaneously  with  the  deed,  must  be  under  seal, 
or  of  as  high  a  nature  as  the  deed  itself,'  If  the  agreement 
is  not  under  seal,  the  transaction  will  be  treated  as  a  mortgage 


57,  20  Atl.  78;  Clark  v.  Landon,  90 
Mich.  83,  51  N.  W.  357;  Ferris  v. 
Wilcox,  51  Mich.  105,  47  Am.  Rep. 
551;  Martin  v.  Pond,  30  Fed.  15; 
Butman  v.  James,  34  Minn.  547,  27 
N.  W.  66 ;  Moores  v.  Wills,  69  Tex. 
109,  5  S.  W.  675 ;  Connolly  v.  Gid- 
dings,  24  Neb.  131,  Z7  N.  W.  939. 
See  Sims  v.  Gaines,  64  Ala.  392; 
Barthell  v.  Syverson,  54  Iowa,  160; 
Brush  V.  Peterson,  54  Iowa,  243; 
Lewis  V.  Small,  71  Me.  552;  Cope- 
land  V.  Yoakum's  Adm'r,  38  Mo. 
349;  Essex  County  Nat.  Bank  v. 
Harrison,  57  N.  J.  Eq.  91,  40  Atl. 
209;  Kerr  v.  Gilmore,  6  Watts, 
405 ;  Thacker  v.  Morris,  52  W.  Va. 
220,  43  S.  E.  141,  94  Am.  St.  Rep. 
928;  Kyle  v.  Hamilton,  136  Cal. 
xix.,  68  Pac.  484;  Johnson  v.  Pros- 
perity Loan  &  Bldg.  Ass'n,  94  111. 
App.  260 ;  Reilly  v.  Cullen,  159  Mo. 
322,  60  S.  W.  126;  Porter  v.  White, 
128  N.  C.  42,  38  S.  E.  24. 

6  Nugent  V.  Riley,  1  Met.  117,  35 
Am.  Dec.  355.     See,  also,  Scott  v. 
McFarland.  13  Mass.  398 ;  Lanfair  v 
Deeds,  Vol.  IL— 132 


Lanfair,  18  Pick.  299;  Erskine  v. 
Townsend,  2  Mass.  493,  3  Anv  Dec. 
71;  Taylor  v.  Weld,  5  Mass.  109; 
Newhall  v.  Burt,  7  Pick.  157;  Stock- 
ing V.  Fairchild,  5  Pick.  181 ;  Eaton 
V.  Whiting,  3  Pick.  484;  Clark  v. 
WoodrufiF,  9  Mich.  83,  51  N.  W. 
357. 

■^  Wilson  V.  Shoenberger,  31  Pa. 
St.  295;  Reitenbaugh  v.  Ludwick, 
31  Pa.  St.  131 ;  Clark  v.  Woodruff, 
90  Mich.  83,  51  N.  W.  357;  Waters 
V.  Crabtree,  105  N.  C.  394,  11  S.  E. 
240;  Jeffrey  v.  Hursh,  58  Mich. 
246,  25  N.  W.  176,  27  N.  W.  7; 
Kyle  V.  Hamilton,  135  Cal.  19,  68 
Pac.  484;  Johnson  v.  Prosperity 
Loan  &  Bldg.  Ass'n,  94  111.  App. 
260. 

8  Harrison  v.  Phillips  Academy, 
12  Mass.  456. 

sjewett  V.  Bailey,  5  Me.  87; 
French  v.  Sturdivant,  8  Me.  246; 
Warren  v.  Lovis,  53  Me.  463;  Mur- 
phy V.  Calley,  1  Allen,  107;  Flint 
V.  Sheldon,  13  Mass.  443,  7  Am. 
Dec    162;    Kelleran   v.    Brown,   4 


2098 


THE  LAW  OF  DEEDS. 


[chap.  XXXL 


only  by  a  court  of  equity.*  A  defeasance,  to  have  the  effect 
of  transforming  an  absolute  deed  into  a  mortgage,  must 
be  unqualified  and  absolute  in  its  provisions  for  reconveyance. 
Where  the  instrument  allows  the  grantee  an  election  between 
a  reconveyance  and  the  payment  of  a  sum  of  money,  he  has 
the  option  of  considering  the  fee  absolute.* 


Mass.  443 ;  Flagg  v.  Mann,  14  Pick. 
467;  Scituate  v.  Hanover,  16  Pick. 
222;  Cutler  v.  Dickinson,  8  Pick. 
386.  And  see  Runlet  v.  Otis,  2  N. 
H.  167;  Harrison  v.  Phillips  Acad- 
emy, 12  Mass.  456;  Miller  v.  Quick, 
158  Mo.  495,  59  S.  W.  955 ;  Huston 
V.  Regn,  184  Pa.  St.  419,  39Atl.208; 
Crotzer  v.  Bittenbender,  199  Pa. 
504,49  Atl.266;  Lohrer  v.  Russell, 
207  Pa.  105,  56  Atl.  333 ;  Rockwell's 
Estate,  29  Pa.   Super.  Ct.  28. 

1  Eaton  V.  Green,  22  Pick.  526; 
Flagg  V.  Mann,  14  Pick.  467 :  Cut- 
ler V.  Brown,  8  Pick.  386. 

2  Fuller  V.  Pratt,  10  Me.  197. 
Equity  will  treat  a  deed  which  has 
been  given  and  accepted  as  security 
for  the  payment  of  a  debt,  or  the 
performance  of  some  act  as  a  mort- 
gage. Hughes  V.  Edwards,  9 
Wheat,  489,  6  L.  ed.  142;  Russell 
V.  Southard,  12  How.  139,  13  L.  ed. 
927;  Cooper  v.  Whitney,  3  Hill 
(N.  Y.)  95;  Odell  v.  Montross,  68 
N.  Y.  499;  Matter  of  Holmes,  79 
N.  Y.  App.  Div.  264,  79  N.  Y.  Supp. 
592;  Kerrigan  v.  Fielding,  47  N.  Y. 
App.  Div.  246,  62  N.  Y.  Supp.  115; 
Kyle  V.  Hamilton  (1902)  68  Pac. 
4S4;  Bettis  v.  Townsend,  61  Cal. 
333;  Combs  v.  Hawes  (1885)  8 
Pac.  597 ;  Broughton  v.  Vasquez,  73 
Cal.  325,  11  Pac.  806,  14  Pac.  885; 
Moisant  v.  McPhee,  92  Cal.  76,  28 
Pac.  46;  Locke  v.  Moulton,  96  Cal. 
21,  30  Pac.  957;  Ahern  v.  McCar- 


thy, 107  Cal.  382,  40  Pac.  482; 
Adams  v.  Hopkins  (1902)  69  Pac. 
228;  French  v.  Burns,  35  Conn. 
359;  Sheldon  v.  Bradley,  37  Conn. 
324;  Angell  v.  Jewett,  58  111.  App. 
596;  Bernhard  v.  Bruner,  65  III. 
App.  641 ;  Howat  v.  Howat,  101  111. 
App.  158;  Wilson  v.  Rehm,  117  111. 
App.  473;  Delahay  v.  McConnel,  5 
111.  156;  Bishop  v.  Williams,  18  111. 
101;  Tillson  v.  Moulton,  23  111.  648; 
De  Wolf  V.  Strader,  26  111.  225,  79 
Am.  Dec.  371;  Shaver  v.  Wood- 
ward, 28  111.  277;  Shays  v.  Norton, 
48  111.  100;  Hallesy  v.  Jackson,  66 
111.  139;  Westlake  v.  Horton,  85  111. 
228;  Pearson  v.  Pearson,  131  111. 
464,  23  N.  E.  418;  Keithley  v. 
Wood,  151  III.  566,  38  N.  E.  149, 
42  Am.  St.  Rep.  265;  Graham  v. 
Graham,  55  Ind.  23;  Ilanlon  v. 
Doherty,  109  Ind.  37,  9  N.  E.  782 ; 
Ashton  V.  Shepherd,  120  Ind.  69,  22 
N.  E.  98;  Grapes  v.  Grapes,  106 
Iowa,  316,  76  N.  W.  796;  Richard- 
son V.  Barrick,  16  Iowa,  407 ;  Holi- 
day V.  Arthur,  25  Iowa,  19;  Wilson 
V.  Patrick,  34  Iowa,  362;  Johnson 
V.  Smith,  39  Iowa,  549;  New  York 
Piano  Forte  Co.  v.  Mueller,  42 
Iowa,  467;  Otto  v.  Doty,  61  Iowa. 
23,  15  N.  W.  578;  Dunton  v.  Mc- 
Cook,  93  Iowa,  258,  61  N.  W.  977. 
Davis  V.  Starks,  6  Ky.  L.  Rep.  442; 
Oberdorfer  v.  White,  78  S.  W.  436, 
25  Ky.  L.  Rep.  1629 ;  Garvin  v.  Vin- 
cent, 87  S.  W.  804,  27  Ky.  L.  Rep. 


CHAP.  XXXI.]  DEED   WHEN   A   MORTGAGE. 


2099 


§  1102.     Requirement  as  to  time  of  execution. — At  law 

the  delivei-y  of  the  deed  and  defeasance  should  be  made  at 
the  same  time,  but  it  is  of  no  consequence  that  they  bear 


1076;  Wolf  V.  Wolf,  12  La.  Ann. 
529;  Ware  v.  Morris,  23  La.  Ann. 
665;  In  re  Schmidt,  114  La.  78,  38 
So.  26;  Libby  v.  Clark,  88  Me.  32, 
33  Atl.  657;  Howe  v.  Russell,  36 
Me.  115;  Reed  v.  Reed,  75  Me.  264; 
Westminster  Bank  v.  Whyte,  1 
Md.  Ch.  536;  Thompson  v.  Banks, 
2  Md.  Ch.  430,  3  Md.  Ch.  138; 
Dougherty  v.  McColgan,  6  Gill  & 
J.  275,  Artz  V.  Grove,  21  Md.  456; 
BrowTi  V.  Reilly,  72  Md.  489,  20 
Atl  239;  Bodwell  v.  Webster,  13 
Pick  411;  Parks  v.  Hall,  2  Pick. 
206;  McDonough  v.  Squire,  111 
Mass.  217;  Wadsworth  v.  Loran- 
ger,  Harr.  113;  Emerson  v.  At- 
water,  7  Mich.  12;  Cowles  v.  Mar- 
ble, Z1  Mich.  158;  Hurst  v.  Beaver, 
50  Mich.  612,  16  N.  W.  165;  Mc- 
Millan V.  Bissell,  63  Mich.  66,  29 
N.  W.  m ;  Stahl  v.  Dehn,  72  Mich. 
645,  40  N.  W.  922;  Sibley  v.  Ross, 
88  Mich.  315,  50  N.  W.  379;  Dar- 
ling V.  Darling,  123  Mich.  307,  82 
N.  W.  48;  Flynn  v.  Holmes,  145 
Mich.  606,  108  N.  W.  685 ;  Phoenix 
V.  Gardner,  13  Minn.  430;  Holton 
V.  ]\Ieighen,  15  Minn.  69 ;  Everest  v 
Ferris,  16  Minn.  26;  Madigan  v 
Mead,  31  Minn.  94,  16  N.  W.  539 
Littlewort  v.  Davis,  50  Miss.  403 
Wilson  V.  Drumrite,  21  Mo.  325 
Turner  v.  Kerr,  44  Mo.  429 
O'Neill  V.  Cappelle,  62  Mo.  202 
Schradski  v.  Albright,  9Z  Mo.  42,  5 
S.  W.  807;  Morrison  v.  Jones,  31 
Mont.  154,  n  Pac.  507;  Eisman  v. 
Gallagher,  24  Neb.  79,  37  N.  W. 
941;  Tower  v.  Fct/.  26  Neb.  706, 
\2  N.  W.  884,  18  Am.  St.  Rep.  795 ; 


Kemp  V.  Small,  32  Neb.  318,  49  N. 
W.  169;  Bingham  v.  Thompson,  4 
Nev.  224;  Vanderhaize  v.  Hugues, 
13  N.  J.  Eq.  244;  Clark  v.  Condit, 
18  N.  J.  Eq.  358;  Phillips  v.  Hul- 
sizer,  20  N.  J.  Eq.,  308;  Van  Keu- 
ren  v.  McLaughlin,  21  N.  J.  Eq. 
163 ;  Crane  v.  Decamp,  21  N.  J.  Eq. 
414;  Judge  v.  Reese,  24  N.  J.  Eq. 
387;  Piatt  v.  McCIong  (Ch.  1901) 
49  Atl.  1125;  Miami  Exporting  Co. 
V.  U.  S.  Bank,  Wright,  249; 
Cotterell  v.  Long,  20  Ohio,  464; 
Yingling  v.  Redwine,  20  Okla.  64, 
69  Pac.  810;  Adair  v.  Adair,  22 
Oreg.  115,  29  Pac.  193;  Winton  v. 
Mott,  4  Luz.  Leg.  Reg.  71;  Perry 
V.  Perry,  31  Leg.  Int.  372;  Pattison 
V.  Horn,  1  Grant.  301 ;  Cole  v.  Bo- 
lard,  22  Pac.  St.  431;  Todd  v. 
Campbell,  32  Pac.  St.  250;  Nichols 
v.  Reynolds,  1  R.  I.  30,  36  Am.  Dec. 
238;  Yarbrough  v.  Newell,  10  Yerg. 
376;  Hinson  v.  Partee,  11  Humphr. 
587;  Lapowski  v.  Smith,  1  Tex.  Civ. 
App.  391,  20  S.  W.  957;  Butler  v. 
Carter  (Tex.  Civ.  App.  1900)  58 
S.  W.  632;  Hamilton  v.  Flume,  2 
Tex.  Unrep.  Cas.  694 ;  Mann  v.  Fal- 
con, 25  Tex.  271 ;  Loving  v.  MilH- 
ken,  59  Tex.  423 ;  McCamant  v. 
Roberts,  80  Tex.  316,  15  S.  W.  580, 
1054;  Catlin  v.  Chittenden,  Brayt. 
163 ;  Bigelow  v.  Topliff,  25  Vt.  273, 
60  Am.  Dec.  264;  Chowning  v. 
Cox,  1  Rand.  306,  10  Am.  Dec.  530 ; 
Plummer  v.  Use,  41  Wash.  5,  82 
Pac.  1009,  111  Am.  St.  Rep.  997,  2 
L.R.A.(N.S.)  (ill;  Klinck  v.  Price, 
4  W.  Va.  4,  6  Am.  Rep.  268;  Zane 
V.  Fink,  18  W.  Va.  693;  Hoffman  v. 


2100 


THE  LAW  OF  DEEDS. 


[chap.  XXXI. 


different  dates.'  All  that  is  essential  is  that  they  become  oper- 
ative at  the  same  time,  and  are  parts  of  the  same  transaction.* 
And  where  there  is  a  variance  in  the  dates,  it  may  be  shown 
by  parol  evidence  that  they  were  delivered  at  the  same  time.** 
Where  a  deed  was  dated  on  July  20th,  and  a  bond  for  a  re- 
conveyance was  dated  July  30th,  and  both  were  acknowledged 
on  the  31st  of  July,  the  two  instruments  were  held  to  have 
been  executed  concurrently  as  parts  of  the  same  transaction.* 
If  there  is  a  verbal  agreement  for  a  subsequent  defeasance  at 
the  time  of  the  execution  of  the  deed,  operation  is  given  to 
the  defeasance  by  considering  it  is  as  relating  back  to  the 
deed.'     But  if  it  is  delivered  to  a  third  person  to  hold  as 


Ryan,  21  W.  Va.  415;  Mcllory  v. 
Hawke,  5  Grant  Ch.  (U.  C.)  516; 
See  35  Cent.  Dig.  tit.  "Mortgages" 
§  60;  Campbell  v.  Worthington, 
6  Vt.  448;  Houser  v.  Lament,  55 
Pa.  St.  311,  93  Am.  Dec.  755; 
Lance's  Appeal,  112  Pa.  St.  456,  4 
Atl.  375 ;  Roddy  v.  Brick,  42  N.  J. 
Eq.  218,  6  Atl.  806;  Smith  v. 
Sackett,  15  111.  528;  Tantor  v.  Keys, 
43  111.  332;  McDonald  v.  Kellogg, 
30  Kan.   170,  2   Pac.   507. 

3  Kelly  V.  Thompson,  7  Watts, 
401 ;  Haines  v.  Thomson,  70  Pa.  St. 
434 ;  Cotton  v.  McKee,  68  Me.  486 ; 
Kelleran  v.  Brown,  4  Mass.  443; 
Harrison  v.  Phillips  Academy,  12 
Mass.  456.  Requirements  as  to  time 
see  1102;  Kyle  v.  Hamilton,  136 
Cal.  xix.,  68  Pac.  484;  Copeland  U. 
Yoakum's  Adm'r,  38  Mo.  349;  Es- 
sex County  Nat.  Bank  v.  Harrison, 
57  N.  J.  Eq.  91,  40  Atl.  209;  Kerr 
V.  Gilmore,  6  Watts,  405;  Johnson 
V.  Prosperity  Loan  &  Building 
Ass'n,  94  111.  App.  260;  Miller  v. 
Quick,  158  Mo.  495.  59  S.  W.  955 ; 
Reilly  v.  Cullen,  159  Mo.  322,  60 
S.   W.    126;    Huston   t.   Regn,   184 


Pa.  St.  419,  39  Atl.  208 ;  Crotzer 
V.  Bittenbender,  199  Pa.  504,  49  Atl. 
266;  Kelton  v.  Brown,  39  S.  W. 
541 ;  Turner  v.  Cochran,  30  Tex. 
Civ.  App.  549,  70  S.  W.  1024;  Jor- 
dan V.  Warner's  Estate,  107  Wis. 
539,  83  N.  W.  946 ;  Adams  v.  Hop- 
kins, 69  Pac.  228;  Nat.  Bank  of 
Columbus  V.  Tenn.  Coal,  Iron  &  R. 
Co.,  62  Ohio  St.  564,  57  N.  E.  450. 

*  Bennock  v.  Whipple,  12  Me. 
346,  28  Am.  Dec.  186;  McLaughlin 
V.  Shepherd,  32  Me.  153,  52  Am. 
Dec.  646 ;  Waters  v.  Crabtree,  105 
N.  C.  394,  11  S.  E.  240. 

6  Brown  v.    Holyoke,   53    Me.  9. 

•Lentz  V.  Martin,  75  Ind.  228. 

■^  Lovering  v.  Fogg,  18  Pick.  540. 
See,  also,  Scott  v.  Henry,  13  Ark. 
112;  Pearson  v.  Dancy,  144  Ala. 
427,  39  So.  474.  But  see  contra, 
Lund  V.  Lund,  1  N.  ?I.  39,  8  Am. 
Dec.  29;  Waters  v.  Crabtree,  105 
N.  C.  394,  11  S.  E.  240,  1  So.  Rep. 
898;  Cosby  v.  Buchanan,  81  Ala. 
574.  Where  there  has  been  a  re- 
conveyance and  a  second  deed  ex- 
ecuted between  the  same  parties, 
there  may  be  a   redelivery  of   the 


CHAP.  XXXI.]  DEED   WHEN   A   MORTGAGE.  2101 

an  escrow  until  the  discharge  of  the  indebtedness,  it  is  not 
considered  as  executed  and  delivered  at  the  same  time  as  the 
deed,  nor  as  forming  part,  of  the  same  transaction,  and  a 
mortgage  is  not  thereby  created.*  Where  an  absolute  deed 
and  an  agreement  for  reconveyance  on  condition  that  the 
money  advanced  was  to  be  repaid  in  a  specified  time,  were 
placed  in  the  hands  of  a  third  person,  with  instructions  to 
deliver  them  both  to  the  grantee  if  the  repayment  was  not 
made  in  the  time  limited,  and  it  not  being  so  made,  they  were 
delivered  at  the  grantor's  direction  to  the  grantee,  it  was  held 
that  upon  the  delivery  of  the  deed  the  grantee  took  an  ab- 
solute fee.*  When  the  deed  and  agreement  to  reconvey  are 
free  from  ambiguity,  their  construction  and  legal  effect  are 
matters  of  law  for  the  court  to  determine.^  Even  at  law,  if 
there  is  a  separate  contemporaneous  agreement  in  writing  to 
reconvey  the  premises  upon  the  payment  of  the  debt,  a  deed 
absolute  upon  its  face,  but  intended  as  security  for  the  pay- 
ment of  such  money,  is  a  mortgage.' 

§  1103.  Deed  and  defeasance  may  be  shown  by  parol 
evidence  to  be  parts  of  same  transaction. — That  the  part- 
ties  intended  by  the  execution  of  the  deed  and  defeasance  to 
create  a  mortgage,  may  be  shown  by  parol  evidence.  Such 
evidence  is  received  to  show  their  connection  with  each  other, 
that  they  were  agreed  upon  at  one  time  and  are  in  fact  one 
contract,  and  not  to  vary  or  contradict  the  written  instru- 
ments.'   The  loss  or  destruction  of  the  defeasance  occasioned 

same      defeasance:       Mclntier    v.  41  Cal.  22,  28;  Leggett  v.  Edwards, 

Shaw,   6   Allen,  83.     See   Judd   ▼.  Hopk.   Ch.  530. 

Flint,  4  Gray,  557.  i  Keith  v.  Catchings,  64  Ga.  473. 

SBodwell    V.    Webster,    13    Pick.  2  Teal  v.  Walker,  111  U.  S.  242, 

411.     But  see  Carey  v.  Rawson,  8  28  L.  ed.  415. 

Mass.  159;  Exton  v.  Scott,  6  Sim.  3  ReJtenijaugh  v.  Ludwick,  31  Pa. 

51.  St.   131,   138;   Preschbaker  v.   Fea-. 

'Glendenning     v.     Johnston,     33  man,  32  111.  475;  Kelly  v.  Thomp- 

WIs.  347.     See  Henley  v.  Hotaling,  son,     7     Watts,     401;     Wilson     v. 


2102  THE  LAW  OF  DEEDS.  [CHAP.  XXXI. 

by  fraud  or  mistake  may  also  be  shown  by  evidence  of  this 
character.*  When  it  appears  that  the  transaction  was  origin- 
ally a  sale,  and  it  is  claimed  that  its  character  has  been  changed, 
the  burden  of  proof  to  establish  this  is  upon  the  grantor.^  A 
mortgage  is  conclusively  presumed  from  the  circumstance  that 
the  deed  and  defeasance  bear  the  same  date,  and  parol  evi- 
dence is  inadmissible  to  show  a  different  understanding  be- 
tween the  parties  for  the  purpose  of  converting  the  transac- 
tion into  a  conditional  sale.®  Where  there  is  a  variance  in 
the  dates,  but  the  agreement  to  reconvey  contains  a  recital 
that  it  and  the  deed  were  delivered  on  the  same  day,  the 
presumption  is  that  they  constitute  a  mortgage;  but  this  pre- 
sumption may  be  rebutted  by  evidence  showing  that  the  deed 
was  executed,  not  as  a  security  for  the  performance  of  an  obli- 
gation, but  as  the  completion  of  a  sale.'  In  California,  where 
the  grantee  agreed  that  if  he  should  not  procure  the  testimony 
of  two  witnesses  to  a  certain  state  of  facts  the  deed  should 
be  null  and  void,  it  was  held  that  the  transaction  did  not  con- 
stitute a  mortgage;  the  legal  estate  had  once  vested  in  the 
grantee,  and  as  it  could  not  be  divested  by  his  default  in 
performing  an  illegal  agreement,  the  deed  to  him  became 
absolute." 

§  1104.     Condition  in  deed  construed  as  lien. — Where 
a  deed  contains  the  clause  "nevertheless,  this  deed  of  con- 

Schoenberger,  31  Pa.  St.  295;  Gay  6  Kerr  v.  Gilmore,  6  Watts,  405; 

V.   Hamilton,  33   Cal.  686;   Tillson  Brown  v.  Nickle,  6  Pa  St  390. 

V.    Moulton,   23   111.   648;    Franklin  '  Haines  v.  Thompson,  70  Pa.  St. 

V.    Ayer,   22    Fla.   654;    Gassert   v.  434.      See    Gubbings   v.    Harper,   7 

Bogk,  7  JMont.  585,  1  L.R.A.  240,  19  Phila.   276;   Baisch  v.   Oakeley,  68 

Pac.  281;  Waters  v.  Crabtree,  105  Pa.  St.  92. 

N.  C.  394,  11  S.  E.  240;  First  Nat.  »  Patterson    v.    Donner,    48    Cal. 

Bank  V.  Ashmead,  23  Fla.  379,  2  So.  369;  Porter  v.  White,  128  N.  C  42, 

657.  38  S.  E.  24. 

4  Marks  v.  Pell,  1  Johns.  Ch.  594. 

6  Haines  v.  Thompson,  70  Pa.  St. 
434. 


CHAP.  XXXI.]  DEED   WHEN   A   MORTGAGE.  2103 

veyance  is  null  and  void,  and  of  no  effect  until  all  the  purchase 
money  is  paid,  then  of  full  force  and  effect,"  a  noncompliance 
with  the  condition  will  not  be  treated  as  operating  as  an  ab- 
solute avoidance  of  the  title  of  the  grantee.  It  will  be  con- 
strued as  giving  to  the  grantor  merely  a  lien  or  mortgage  to 
secure  the  unpaid  purchase  money.* 

§  1105.  Cancellation  of  defeasance. — In  those  States 
in  which  the  mortgage,  irrespective  of  its  form,  is  simply  a 
lien  or  charge  upon  the  mortgaged  premises,  the  mortgagor 
retaining  the  legal  title,  the  title  is  not  transferred  to  the 
mortgagee  by  the  surrender  or  cancellation  of  the  defeasance.* 

§  1106.  Transfer  of  absolute  title. — If  an  absolute  deed 
is  executed,  and  the  grantee  therein  at  the  same  time  executes 
to  the  grantor  a  bond  for  reconveyance  upon  the  payment  of 
a  certain  sum,  and  if  after  default  in  payment  has  occurred, 
the  bond  by  the  mutual  consent  of  the  parties  is  destroyed, 
and  the  possession  of  the  land  is  transferred  to  the  grantee 
by  virtue  of  a  new  contract,  in  which  by  a  parol  agreement 
the  grantor  is  to  surrender  all  claim  upon  the  land,  the  title 
does  not  pass  by  such  delivery  of  possession.*  The  destruc- 
tion of  the  bond  does  not  estop  the  grantor  from  denying  that 
the  title  passed  by  the  deed.^  But  where  this  equitable  doctrine 
does  not  prevail,  an  absolute  title  may  be  vested  in  the  mort- 
gagee, if  the  rights  of  others  have  not  intervened  by  the 
subsequent  cancellation,  upon  sufficient  consideration  of  the 

9  Miskelly     v.      Pitts,     9     Baxt.  ing  the  surrender,  may  redeem  up- 

(Tenn.)    193.  on  making  the  payment :   Clark  v. 

iSage    V.    McLaughlin,   34   Wis.  Finlon,  90  111.  245. 

550;    Thompson    v.    Mack,    Harr.  2  Howe  v.  Carpenter,  49  Wis.  697. 

Mich.   150;   Bringham  v.  Jones,  44  As  to  whether  a  deed  absolute  on 

Wis.     498.       Where     the     grantee  ils  face  but  intended  as  a  mortgage 

agrees  to  reconvey  upon  the  pay-  passes  the  legal  title:  See  11  L.R.A. 

ment   by   the   grantor   of    the    sum  (N.S.)  209. 

due,  and  the  defeasance  is  surren-  »  Howe  v.  Carpenter,  49  Wis.  697. 
dered,  the  mortgagor,  notwithstand- 


2104  THE  LAW  OF  DEEDS.  [CHAP.  XXXI. 

agreement  for  reconveyance.  But  this  must  be  done  after 
the  creation  of  the  mortgage,  for  an  agreement  made  at  the 
time,  allowing  the  mortgagee  at  his  option  to  declare  his  estate 
absolute,  and  depriving  the  mortgagor  of  his  right  of  redemp- 
tion, is  invalid.*  If  at  the  time  the  deed  is  executed  a  bond 
of  defeasance  is  given,  which  at  the  expiration  of  the  time 
limited  is  surrendered  and  destroyed,  and  if  upon  a  considera- 
tion exceeding  the  former  one  in  amount  a  new  bond  is  given, 
by  which  the  grantee  agrees  to  reconvey  the  premises  upon 
the  payment  within  an  additional  time  of  the  increased  sum, 
the  grantor  thereby  surrenders  and  abandons  his  title  as  mort- 
gagor, and  the  fee  is  vested  in  the  grantee.  The  second  bond 
is  considered  merely  a  personal  contract  on  the  part  of  the 
grantee.**  Where  the  original  transaction  is  confirmed  as  a 
sale,  after  the  delivery  for  a  sufficient  consideration  of  the  de- 
feasance for  cancellation,  and  is  so  treated  as  a  sale  by  the 
grantor  and  his  heirs,  it  cannot  subsequently  be  dealt  with  as 
a  mortgage,  and  foreclosed.^ 

4  Trull  V.  Skinner,  17  Pick.  213;  performed     at     a     different     time. 

Harrison  v.   Phillips   Academy,    12  They    were   therefore   merely   per- 

Mass.   456;    Waters   v.    Randall,   6  sonal     contracts;     and     not    being 

Met.  479;   Cramer   v.   Wilson,   202  made   at   the   same   time   with   the 

111.  83,  66  N.  E.  869,  affirmed  195  U.  conveyance    of    the    land,    or    pro- 

S.  408,  49  L.  ed.  256,  25  Sup.  Ct.  vided   for  in  any  agreement  made 

p4_  at  that  time,  did  not  create  any  es- 

6  Palis   V.   Conway   Mut.   F.   Ins.  tate  in  the  land.    The  plaintiff  had 

Co.,  7  Allen,  46,  in  which  Hoar,  J.,  surrendered     and     abandoned     the 

says :  "The  bond  of  defeasance,  the  title  which  he  held  as  mortgagor, 

only    contract    made    with    him    at  and   made    a   contract   to  purchase 

the    time    when    he    conveyed    the  the  land  upon  a  new  condition  and 

land,  had  been  surrendered,  and  by  for  a  new  consideration":  Carpen- 

the  agreement   of   the  parties   had  ter  v.  Carpenter,  70  111.  457;  Max- 

the    time    when    he    conveyed    the  field  v.  Patchen,  29  111.  39,  42;  Rice 

be-ome  inoperative  and  void.     The  v.  Rice,  4  Pick  349,  350,  n. 
new  bonds  given  in  succession  were  ^  Shubert  v.  Stanley,  52  Ind.  46 ; 

in    every    essential   particular    new  McMillan   v.   Jewett,   85   Ala.   476. 

and    independent    contracts;     they  5  So.  145;  Cramer  v.  Wilson,  202 

were   different  in  amount,   upon   a  III.   83,   66   N.   E.   869;    Cassem   v. 

consideration  partly  new  and  to  be  Heutis,  201  111.  208,  66  N.  E.  283, 


CHAP.  XXXI.]  DEED   WHEN  A   MORTGAGE. 


2105 


§  1107.  Waiver  of  right  of  redemption. — When  the 
transaction  is  a  mortgage,  the  mortgagor  cannot,  by  any  con- 
tract made  at  the  time,  waive  his  right  of  redemption.'  The 
fact  that  the  deed  is  mentioned  as  an  absohite  conveyance  in 
the  receipts  and  accounts  between  the  parties  cannot  affect  the 
right  of  redemption.*  Where  it  is  agreed  that  the  deed  shall 
be  absolute  "with  no  right  of  redemption,"  if  the  grantor 
fails  to  pay  the  sum  specified  in  an  agreement  for  reconvey- 
ance under  seal,  made  at  the  same  time  with  the  deed,  the 
transaction  is  regarded  as  a  mortgage,  of  which  the  right 
of  redemption  is  an  inseparable  incident.^  An  agreement  to 
restrict  the  right  of  redemption  to  the  mortgagor  alone,  or  to 
a  particular  class  of  persons,  may  be  equivalent  to  depriving 
the  mortgagor  of  the  right  of  redemption  altogether.  A  re- 
striction of  this  character,  therefore,  is  void,  because  it  is 
inconsistent  with  the  very  nature  of  a  mortgage.^  An  agree- 
ment made  subsequently  to  convert  into  an  absolute  conveyance 
what  was  primarily  a  mortgage  is  viewed  with  disfavor,  and 


94  Am.  St.  Rep.  160;  Hursey  v. 
Hursey,  56  W.  Va.  148,  49  S.  E. 
367. 

'^  Clark  V.  Henry,  3  Cowen,  324; 
Robinson  v.  Farrelly,  16  Ala.  472; 
Youle    V.    Richards,    1    N.    J.    Eq. 
(Sax.)  534,  23  Am.  Dec.  722;  Ran- 
kin  V.    Mortimere,   7   Watts,   372 
Cherry    v.    Bowen,    4    Sneed,    415 
Pierce    v.    Robinson,    13    Cal.    116 
Clark  V.  Condit,  18  N.  J.  Eq.  358 
Rogan    V.    Walker,     1    Wis.    527 
Plato  V.  Roe,   14  Wis.  453;  Orton 
V.  Knab,  3  Wis.  576;  Knowlton  v. 
Walker,    13    Wis.    264;    Baxter    v. 
Child,  39  Me.  110;  Peugh  v.  Davis, 
96  U.  S.  332,  24  L.  ed.  775;  Fields 
V.  Helms,  82  Ala.  449,  3  So.   106; 
Nelson  v.  Kelly,  91  Ala.  569,  8  So. 
690;   McMillan   v.   Jewett,  85   Ala. 
476,  5  So.  145;  Simon  v.  Schmidt, 


41  Hun,  318;  Turpie  v.  Lowe,  114 
Ind.  37,  15  N.  W.  834;  Nelson  v. 
Fisher,  148  N.  C.  535,  62  S.  E.  622; 
Poston  V.  Jones,  122  N.  C.  536, 
29  S.  E.  951. 

8  Bayley  v.  Bailey,  5  Gray,  505 ; 
Thatcher  v.  Morris,  52  W.  Va.  220, 
43  S.  E.  141,  94  Am.  St.  Rep. 
928. 

9  Murphy  v.  Calley,  1  Allen,  107. 
1  Johnston  v.  Gray,  16  Serg.  &  R. 

361,  116  Am.  Dec.  577.  And  see 
McClurkan  v.  Thompson,  69  Pa. 
St.  305;  Howard  v.  Harris,  1  Vern, 
33 ;  Newcomb  v.  Bohnam,  1  Vern. 
8;  Spurgeon  v.  Collier,  1  Eden,  55. 
But  arrangements  of  this  character 
are  sometimes  under  peculiar  cir- 
cumstances permitted :  Stover  v. 
Bounds,  1  Ohio  St.  107;  Bonham 
V.  Newcomb,  1  Vern.  8,  2  Vent.  364. 


2106  THE  LAW  OF  DEEDS.  [CHAP.  XXXl. 

will  not  be  upheld  unless  it  appear  that  the  creditor  took  no 
undue  advantage.^  It  therefore  follows  that  the  creditor  has 
the  burden  of  proof  to  show  the  deliberate  surrender,  upon  a 
sufficient  consideration  of  the  right  of  redemption.^  When 
an  existing  debt  is  the  consideration  for  a  deed,  an  agreement 
depriving  the  debtor  of  his  right  of  redemption  is  generally 
disregarded.* 

§  1108.  Confidential  relations. — A  court  of  equity  will 
closely  watch  transactions  between  persons  occupying  confi- 
dential relations  toward  each  other.  Where  a  deed  has  been 
made  by  a  person  to  his  confidential  agent  and  advisor,  and 
the  grantor  claims  that  it  was  given  and  received  as  security 
for  a  loan,  the  whole  burden  of  sustaining  the  validity  and 
good  faith  of  the  dealings  between  the  parties  is  imposed  upon 
the  agent  and  advisor."  "Now  it  is  a  well-settled  principle  of 
equity  jurisprudence,"  said  Mr.  Justice  Potter,  "that  the  court 
will  always  look  with  jealousy  upon  all  transactions  between 
parties  so  situated ;  and  the  burden  of  proof  is  entirely  upon 
the  guardian,  trustee,  agent,  or  other  person  sustaining  this 
confidential  relation,  to  show  that  he  has  taken  no  advantage 
of  his  situation.  It  is  not  necessary  that  there  should  be  fraud 
to  justify  the  court's  interference.  In  the  present  case,  there 
«vere  all  the  elements  usually  found  in  cases  where  the  courts 

"Henry  v.  Davis,  7  Johns.  Ch.  fer  of  property  is  intended  to  se- 
40;  Wright  V.  Bates,  13  Vt.  341;  cure  the  purchase  price,  the  trans- 
Mills  V.  Mills,  26  Conn.  213.  action    is    a   mortgage :    Palmer   v. 

8  Brown  v.   Gaffney,  28  111.   149 ;  Howard,  72  Cal.  293,  1  Am.  St.  Rep. 

Villa  V.  Rodriguez,   12  Wall.  324;  60. 

Locke  V.  Palmer,  26  Ala.  312;  Shaw  6  Tappan  v.  Aylsworth,  13  R.  I. 

V.     Walbridge,     33     Ohio     St.     1;  582;   Kelso  v.  Kelso,  16  Ind.  App. 

Baugher  v.  Merryman,  32  Md.  185.  615,  44  N.  E.  1013,  45  N.  E.  1065 ; 

*  Batty   V.   Snook,    5    Mich.   231 ;  Meeker  v.  Warren,  66  N.  J.  Eq.  146, 

Enos  V.  Sutherland,  11   Mich.  538.  57  Atl.  421;  Slawson  v.  Denton,  48 

A  mere  shuffling  of  words  cannot  S.  W.  350;  Tuggle  v.  Berkeley,  101 

destroy  the  provisions  of  law  relat-  Va.  83,  43  S.  E.  199. 
ing  to  mortgages.    When  the  trans- 


CHAP.  XXXI.]  DEED   WHEN  A   MORTGAGE.  2107 

have  granted  relief.  There  was  complete  ignorance  of  busi- 
ness affairs,  complete  confidence,  and  the  dependence  resulting 
from  that  confidence  on  one  side,  and  on  the  other  side, 
superior  business  knowledge,  and  the  influence  of  his  position 
as  administrator  of  her  father's  estate."  ^ 

§  1109.  Notice  given  by  recording. —  ihe  deteasance 
without  recording  is  good  between  the  parties  themselves.'' 
Against  others,  recording  is  not  necessary  when  the  conveyance 
does  not  purport  to  be  an  absolute  deed.'  A  purchaser  with 
actual  notice  of  an  unrecorded  defeasance  takes  the  title  sub- 
ject to  the  mortgage.^  It  has  been  held  that  when  the  de- 
feasance has  not  been  acknowledged,  and  for  that  reason  is 
not  entitled  to  be  recorded,  a  purchaser  without  notice  of  the 
defeasance,  notwithstanding  that  it  has  in  fact  been  recorded, 
acquires  a  title  unaffected  by  it.^  Continuance  in  possession 
by  the  grantor  after  the  recording  of  the  deed  made  by  him 
does  not  impart  notice  of  a  bond  for  reconveyance.^  A  dis- 
tinction is  to  be  observed  throughout  this  chapter  between 
a  legal  mortgage  and  an  equitable  mortgage.  Notice  of  a 
legal  mortgage  can  be  imputed  to  a  purchaser  only  when  he 
had  sufficient  grounds  for  believing  that  the  conveyance  and 
defeasance  were  in  their  execution  and  delivery  parts  of  one 
transaction.^  On  the  one  hand,  it  is  stated  that  a  purchaser 
has  notice  when  he  has  actual  knowledge  of  such  circum- 
stances as  would  put  a  prudent  m.an  upon  inquiry,  and  that  by 

STappan  v.  Aylsworth,  13  R.  I.       rington    v.    Pierce,    38    Me.    447; 
582.  Friedley  v.  Hamilton,  17  Serg.  &  R. 

^Bayley  v.   Bailey,   5   Gray,   505,       70,  17  Am.  Dec.  638;  Manufactur- 
510;  Jackson  v.  Ford,  40  Me.  381 

8  Russell  V.  Waite,  Walk.  Ch.  31 

SNewhall  v.  Pierce,  5  Pick.  450 
Corpman  v.  Baccastow,  84  Pa.  St 
363;  Tufts  v.  Tapley,  129  Mass 
380;  Catlin  v.  Bennett,  47  Tex.  165; 


ers  &  Mechanics'  Bank  v.  Bank  of 
Pa.,  7  Watts,  335,  42  Am.  Dec.  240; 
Butman  v.  James,  34  Minn.  547,  27 
N.  W.  66. 

1  Cogan  V.  Cook,  22  Minn.  137. 

2Newhall  v.  Pierce,  5  Pick.  450. 


Newhall  v.  Burt,  7  Pick.  157 ;  Pur-  ^  Newhall  v.  Burt,  7  Pick.  157. 


2108  THE  LAW  OF  DEEDS.  [CHAP.  XXXI. 

prosecuting  such  inquiry,  he  might  ascertain  the  actual  right 
or  title.*  On  the  other  hand,  it  is  asserted  that  knowledge  of 
the  open  and  visible  possession  by  the  grantor  after  his  con- 
veyance by  absolute  deed,  is  not  sufficient  to  imply  actual 
notice.^  The  true  rule,  except  where  the  statute  is  imperative, 
would  seem  to  be  that  actual  occupation  by  the  mortgagor  is 
sufficient  to  put  a  purchaser  from  the  grantee  upon  inquiry, 
and  if  he  fails  to  prosecute  it,  to  fasten  upon  him  notice  of 
the  mortgagor's  rights.  It  is  not  to  be  presumed  that  a  pur- 
chaser in  good  faith  will  buy  land  without  ascertaining,  or 
making  an  attempt  to  ascertain,  the  claims  of  the  person  in 
open  possession.®  A  subsequent  purchaser  is  bound  only  by 
what  appears  in  the  record,  and  has  a  right  to  assume  where 
the  instruments  were  executed  on  different  days,  and  each 
is  independent  of  the  other,  that  the  transaction  was  an  ab- 
solute sale  with  an  agreement  to  repurchase."^  But  if  it  is  ap- 
parent from  the  construction  of  the  instruments  themselves 
that  the  transaction  is  a  mortgage,  as  where  there  is  a  refer- 
ence in  the  defeasance  to  the  debt  secured,  the  purchaser  is 
charged  with  notice.'  If  the  mortgagee,  who  is  apparently 
a  grantee,  conveys  to  a  person  who  has  notice  of  the  de- 
feasance, such  person  acquired  simply  an  assignment  of  the 
mortgage.* 

§  1110.  Conditional  sale  or  mortgage. — The  peculiar 
circumstances  belonging  to  each  particular  case  must  be  the 
criterion  by  which  to  determine  whether  a  conveyance  is  a 

*Bnnkman  v.  Jones,  44  Wis.  498;  434;  Story's  Eq.  Jur.,  §  399;  Jones 

Musgrove  v.  Bonser,  5  Or.  313;  20  on   Mortgages,   §§  253,   579. 

Am.  Rep.  IZl ;  Porter  v.  Sevey,  43  6  Daubenspeck   v.    Piatt,   22   Cal. 

Me.   519;    Maupin   v.   Emmons,   47  330;   Pritchard  v.  Brown,  4  N.  H. 

Mo  304;  Wilson  v.  Miller,  16  Iowa,  397,  17  Am.  Dec.  431. 

Ill  7Weide  v.  Gehl,  21  Minn.  449. 

BLamb  v.  Pierce,   113  Mass.  72;  8  Hill  v.   Edwards,   11   Minn.  22 

White    V.    Foster,    102   Mass.   375 ;  See  King  v.  Little,  1  Cush.  436. 

Crassen  v.  Swoveland,  22  Ind.  427,  »  Halsey  v.  Martin,  22  Cal.  645. 


CHAP.  XXXI.]  DEED  WHEN  A   MORTGAGE. 


2109 


mortgage  or  a  conditional  sale.^  The  difference  between  a 
mortgage  and  a  conditional  sale  lies  in  the  fact  that  a  mortgage 
is  a  security  for  a  debt  while  a  conidtional  sale  is  a  deed, 
accompanied  by  an  agreement  to  resell  in  specified  terms.^  And 
whenever  from  a  consideration  of  the  situation  of  the  parties, 
and  of  the  surrounding  facts,  together  with  the  written  in- 
struments themselves,  it  -s  apparent  the  parties  intended  to 
make  a  conditional  sale,  the  courts  will  respect  and  enforce 
their  contract.^'*  "To  deny  the  power  of  two  individuals," 
says  Chief  Justice  Marshall,  "capable  of  acting  for  themeslves, 
to  make  a  contract  for  the  purchase  and  sale  of  lands  de- 
feasible by  the  payment  of  money  at  a  future  day,  or  in  other 
words,  to  make  a  sale  with  a  reservation  to  the  vendor  of 
a  right  to  repurchase  the  same  land  at  a  fixed  price  and  at  a 
specified  time,  would  be  to  transfer  to  the  court  of  chancery, 
in  a  considerable  degree  the  guardianship  of  adults  as  well 
as  of  infants.     Such  contracts  are  certainly  not  prohibited 


lEdrington  v.  Harper,  3  Marsh 
J.  J.  353,  354,  20  Am.  Dec.  145 
Hughes  V.  Sheaff,  19  Iowa,  335 
Heath  v.  Williams,  30  Ind.  495 
Lucas  V.  Hendrix,  92  Ind.  54;  Da- 
vis V.  Stonestreet,  4  Ind.  101 ;  Cor- 
nell V.  Hall,  22  Mich.  Zll ,  383; 
Smith  V.  Crosby,  47  Wis.  160;  Hihn 
V.  Peck,  30  Cal.  280;  Horbach  v. 
Hill,  112  U.  S.  144;  Stephens  v. 
Allen,  11  Or.  188,  3  Pac.  168;  Gibbs 
V.  Penny,  43  Tex.  560;  Loving  v. 
Milliken,  59  Tex.  423;  Stamper  v. 
Johnson,  3  Tex.  1 ;  Pendergrass  v. 
Burris  (Cal.,  Sept.  22,  1888),  19 
Pac.  187;  Gray  v.  Shelby,  83  Tex. 
405,  18  S.  W.  809;  Gassert  v.  Bogk, 
7  Mont  585,  f  L.R.A.  240;  Trim- 
ble V.  McCormick  (Ky.,  Feb.  7, 
1891),  15  S.  W.  358. 

2Beidleman  v.  Koch,  85  N.  E. 
977;  Cornell  v.  Craig  (C.  C.)  79 
Fed.  685;  Knickerbocker  Trust  Co. 


V.  Penacook  Mfg.  Co.,  100  Fed. 
814;  Martin  v.  Martin,  123  Ala.  191, 
26  So.  525 ;  Rose  v.  Gandy,  137  Ala. 
329,  34  So.  239;  Land  v.  May,  1Z 
Ark.  415,  84  S.  W.  489;  Borcherd 
V.  Farn,  16  Colo.  App.  406,  66  Pac. 
251;  Crane  v.  Chandler,  190  111. 
584,  60  N.  E.  826;  Greenwood  v. 
Building  &  Loan  Ass'n,  28  Ind. 
App.  548,  63  N.  E.  574;  Heath  v. 
Williams,  30  Ind.  495;  Breenwood 
B.  &  L.  Ass'n  V.  Stanton,  28  Ind. 
App.  548,  63  N.  E.  574;  Bigler  v. 
Jack,  114  Iowa,  667,  87  N.  W.  700; 
Yost  V.  First  National  Bank,  66 
Kan.  605,  72  Pac.  209;  Fabrique  v. 
Cherokee  &  P.  Coal  &  Mining  Co., 
69  Kan.  IZZ,  77  Pac.  584;  Fulweil- 
er  V.  Roberts,  26  Ky.  Law  Rep.  297, 
80  S.  W.   1148. 

2a  Bigler  V.  Jack,  114  Iowa,  667, 
87  N.  W.  700. 


2110  THE  LAW  OF  DEEDS.  [CHAP.  XXXI. 

either  by  the  letter  or  the  policy  of  the  law.  But  the  policy 
of  the  law  does  prohibit  the  conversion  of  a  real  mortgage 
into  a  sale;  and  as  lenders  of  money  are  less  under  the  pres- 
sure of  circumstances  which  control  the  perfect  and  free  ex- 
ercise of  the  judgment  than  borrowers,  the  effort  is  frequently 
made  by  persons  of  this  description  to  avail  themselves  of  the 
advantage  of  this  superiority,  in  order  to  obtain  inequitable 
advantages.  For  this  reason  the  leading  of  courts  has  been 
against  them,  and  doubtful  cases  have  generally  been  decided 
to  be  mortgages.  But  as  a  conditional  sale,  if  really  intended, 
is  valid,  the  inquiry  in  every  case  must  be  whether  the  contract 
in  the  specific  case  is  a  security  for  the  repayment  of  money 
or  an  actual  sale."  *  As  a  court  of  equity  will  receive  any 
evidence  to  show  that  an  absolute  conveyance  was  intended  as 
a  security,  a  transaction  which  court  of  law  would  determine 
to  be  a  conditional  sale,  a  court  of  equity  may  declare  to  be  a 
mortgage.*  Yet  when  it  clearly  appears  that  the  parties  in- 
tended a  conditional  sale,  their  contract  will  be  enforced.^  But 
it  should  be  observed  that  the  contract  in  a  doubtful  case  will 
be  construed  to  be  a  mortgage  rather  than  a  conditional  sale.' 
If  a  defeasance  exists,  although  it  may  not  have  been  recorded, 
the  equity  of  redemption  under  the  former  national  bankruptcy 

8  Conway  V.  Alexander,  7  Cranch,  661;   Flagg  v.  Mann,  2  Sum.  486; 

2r8,  3  L.  ed.  321.     Language  to  the  Dougherty  v.    McColgan,  6  Gill  & 

same  effect   is   employed  by   Chief  J.   275;    Pearson   v.    Seay,   38   Ala. 

Justice   Rhodes   in    Henley  v.   Ho-  643. 

taling,  41   Cal.  22,   from  which  we  ^  Goodman  v.  Grierson,  2  Ball  & 

quote  this  sentence:   "Such  a  con-  B.    274;     Bloodgood    v.     Zeily,    2 

tract  is  not  opposed  to  public  pol-  Caines  Cas.  124;  Davis  v.  Thomas, 

icy,  nor  is  it  in  any  sense  illegal;  1    Russ.   &   M.   506;    Pennington  v. 

and  courts  would  depart  from  the  Ilanby,  4   Munf.   140.     See   Stroup 

lines   of    their   duties    should    they,  v.  Haycock,  56  Iowa,  729;  Yost  v. 

in   disregard   of  the   real   intention  First    Nat.    Bank,  66   Kan.   605,   12 

of   the   parties,   declare   it   to   be  a  Pac.    209;    Crane  v.   Chandler,    190 

mortgage."     See  Haynie  v.  Robert-  111.    584,   60    N.    E.   826. 
son,  58  Ala.  37;   Smith  v.  Crosby,  ^  Bonherdt    v.    Favor,    16    Colo. 

47  Wis.  160.  App.    406,    66    Pac.    251 ;    Stahl    v. 

*McNamara  v.   Culver,  22   Kan.  Dchn,  12  xMich.  645,  40  N.  W.  922; 


CHAP.  XXXI.]  DEED  WHEN  A  MORTGAGE. 


2111 


act  would  vest  in  the  grantor's  trustees,  and  an  attaching  cred- 
itor could  not  obtain  the  benefit  of  an  estoppel  by  reason  of 
the  nonregistration  of  the  agreement  of  defeasanceJ 


§  1111.  Purchase  money  mortgage  by  married  woman. 
— A  person  sold  a  tract  of  land  to  a  woman  whose  husband 
was  not  living  with  her.  The  vendor  supposed  that  she  was 
unmarried,  and  he  took  her  individual  note  and  mortgage  back 
for  a  part  of  the  purchase  money.  Ordinarily,  the  mortgage 
would  be  void  and  incapable  of  correction.  But  in  a  suit  by 
the  assignee  of  the  note,  the  court  held  that  the  deed  and 
void  mortgage  were  to  be  treated  as  one  transaction.  Hence, 
subsequent  purchasers  with  notice  would  acquire  the  title  in 
trust  for  the  payment  of  the  mortgage  note.*  The  grantor 
would  have  had  a  vendor's  lien  if  he  had  not  taken  the  mort- 
gage. But  he  was  entitled  also  to  have  the  more  ample  rem- 
edy of  a  trust  capable  of  assignment,  which  could  be  enforced 
against  subsequent  purchasers  with  notice.^  This  principle 
is  further  illustrated  by  a  case  that  occurred  in  California, 
where  an  owner  of  land  agreed  with  a  purchaser  to  sell  him 
a  tract  of  land.  Part  of  the  purchase  money  was  to  be  paid 
at  the  time,  and  the  balance  was  to  be  secured  by  a  mortgage 


Jones  V.  Gillett,  118  N.  W.  314; 
Tucker  v.  Witherbee,  113  S  W. 
123;  Donovan  v.  Boeck,  217  "Mo. 
70,  116  S.  W.  543;  Martin  v.  Mar- 
tin, 123  Ala.  191,  26  So.  525;  Rose 
V.  Gandy,  137  Ala.  329,  34  So.  239 ; 
Land  V.  May,  IZ  Ark.  415,  84  S.  W. 
489;  Robertson  v.  Campbell,  2 
Call,  421 ;  Poindexter  v.  McCannon, 
1  Dev.  Eq.  377,  18  Am.  Dec.  .S91 ; 
King  V.  Newman,  2  Munf.  40; 
Sears  v.  Dixon,  33  Cal.  326;  Skin- 
ner V.  Miller,  5  Litt.  84,  86;  Gray 
V.  Shelby,  83  Tex.  405,  18  S.  W. 
Rep.  809;  Cosby  v.  Buchanan,  81 
Ala.  574,  1  So.  Rep.  898;  Walker  v- 


McDonald,  49  Tex.  458;  Mitchell 
V.  Wellman,  80  Ala.  16;  Vincent  v. 
Walker,  86  Ala.  333,  5  So.  Rep. 
465;  Stephens  v.  Allen,  11  Or.  188, 
3  Pac.  Rep.  168;  Baugher  v.  Merry- 
man,  32  Md.  185;  Gilchrist  v.  Bes- 
wick,  33  W.  Va.  168,  10  S.  E.  Rep. 
371;  O'Neil  v.  Cappelle,  62  Mo. 
202;  Turner  v.  Kerr,  44  Mo.  429; 
De  Bruhl  v.  Maas,  54  Tex.  464; 
Heath  v.  Williams,  30  Ind.  495; 
Suavely  v.  Pickle,  29  Gratt.  27. 
'  Moors  v.  Albro,  129  Mass.  9. 

8  Ogle  V.  Ogle,  41  Ohio  St  359. 

9  Ogle  V.  Ogle,  41  Ohio  St.  359. 


2112 


THE  LAW  OF  DEEDS. 


[chap.  XXAl. 


on  the  land.  At  the  request  of  the  purchaser  the  deed  was 
made  to  his  wife,  and  the  notes  and  mortgage  for  the  part  of 
the  purchase  price  remaining  unpaid  were  executed  by  her. 
The  court,  without  deciding  the  point  as  to  the  loss  of  the 
vendor's  lien,  held  that,  as  in  the  beginning  the  parties  had 
agreed  that  a  mortgage  should  be  executed,  the  transaction 
would  be  treated  as  an  equitable  mortgage  to  secure  the  por- 
tion of  the  purchase  money  unpaid  and  the  interest  on  this 
sum.^  The  decision  was  placed  on  the  ground  that,  although 
the  instrument  purporting  to  be  a  mortgage  was  void,  for 
the  reason  that  the  wife  had  no  power  to  execute  a  mortgage 
of  the  community  property,  yet  that  equity  would  treat  that 
as  done  which  the  parties  agreed  to  have  done,  and  which 
ought  to  have  been  done.* 


1  Remington  v.  Higgins,  54  Cal. 
620. 

2  Mr.  Justice  Sharpstein  con- 
curred in  the  judgment,  but  was  of 
the  opinion  that  the  grantor  had 
not  lost  his  vendor's  lien,  for  the 
unpaid  purchase  money.  He  said 
on  this  point:  "Under  our  Code, 
the  effect  of  the  plaintiff's  deed  was 
the  same  as  if  it  had  been  executed 
to  the  husband.  And  the  transac- 
tion must  be  treated  as  it  would  be 
if  the  land  had  been  conveyed  to 
him,  and  his  wife  had  executed  a 
mortgage  upon  it  to  secure  the 
payment  of  the  purchase  money. 
She  purchased  nothing,  obtained  no 
title  to  anything,  and  gave  no  se- 
curity for  the  payment  of  anything. 
Under  the  circumstances,  it  seems 
to  me  that  she  might,  with  perfect 
propriety,  be  left  out  of  view  al- 
together, and  the  case  be  consid- 
ered as  one  in  which  the  husband 
purchased  the  land,  acquired  the 
title,  paid  a  part  of  the  purchase 
money,   and  gave   no   security    for 


the  payment  of  the  balance.  If  the 
plaintiff  has  done  any  act  manifest- 
ing an  intention  not  to  rely  upon 
the  land  for  security,  his  claim  to  a 
vendor's  lien  cannot  be  maintained. 
But  the  facts  as  found  by  the 
court  satisfy  me  that  the  plaintiff 
throughout  manifested  an  intention 
to  rely  upon  the  land  as  security 
for  the  payment  of  the  purchase 
money,  for  which  credit  was  given. 
The  very  instrument  which  it  is 
claimed  constituted  a  waiver  of  the 
vendor's  lien  purports  to  be  a  mort- 
gage upon  tlie  land  sold  by  the 
plaintiff.  Besides,  the  court  finds 
that  it  was  agreed  between  the 
vendor  and  the  vendee  that  the 
payment  of  so  much  of  the  pur- 
chase money  as  was  not  paid  at 
the  time  of  the  execution  of  the 
conveyance  should  be  secured  by 
a  mortgage  upon  the  land  conveyed. 
No  such  mortgage  was  ever  exe- 
cuted, but  the  agreement  to  exe- 
cute it  on  the  one  side,  and  to  ac- 
cept it  on  the  other,  shows  that  it 


CHAP.  XXXI.]  DEED  WHEN  A   MORTGAGE. 


2113 


§  1111a.  Same  by  natural  guardian  of  minors. — So, 
where  land  is  conveyed  by  deed  to  a  father  and  his  minor 
children,  and  he,  for  the  purpose  of  securing  the  balance  due 
on  the  purchase  price  of  the  land,  gives  a  mortgage  signed  by 
him  for  himself  and  as  guardian  of  his  minor  children,  the 
mortgage  may  be  enforced  as  an  equitable  mortgage  upon 
the  whole  land,  and  the  interest  of  the  minors  acquired  under 
the  deed  is  subject  to  the  lien  of  the  mortgage.'  On  the  ground 
that  a  mortgage  defectively  executed,  as  well  as  an  imperfect 
effort  to  create  a  mortgage  upon  specific  property  for  the  pur- 
pose of  securing  the  payment  of  a  debt,  will,  in  equity,  create 
a  specific  lien  upon  the  property  intended  to  be  mortgaged, 
the  court  held,  that  the  law  as  above  stated  would  apply,  though 
it  did  not  appear  whether  any  portion  of  the  money  paid 
was  the  property  of  the  minors,  or  whether  the  father  was 
or  was  not  the  guardian  of  their  estates.*     In  other  words, 


was  the  intention  of  the  vendor  to 
rely  upon  the  land  for  security." 

8  Peers  v.  McLaughlin,  88  Cal. 
294. 

*  Peers  v.  McLaughlin,  88  Cal. 
294.  The  court  referred  to  cases 
where  imperfect  instruments  were 
enforced;  and,  upon  the  subject  of 
enforcing  such  contracts  against 
minors  said,  per  Mr.  Justice  De 
Haven:  "We  have  not  overlooked 
the  fact  that  in  all  the  cases  above 
cited  the  persons  against  whom  the 
imperfect  instrument  was  enforced 
had  the  capacity  to  make  a  valid 
contract,  while  by  the  judgment 
here  it  is  the  land  of  the  minors, 
who  were  and  are  incapable  of  con- 
tracting for  land,  and  in  a  general 
sense  of  ratifying  such  a  contract, 
against  which  this  mortgage  is  en- 
forced. But  this  fact  ought  not, 
under  the  circumstances  here  dis- 
closed, to  prevent  the  application  of 
Deeds,  Vol.  IL— 133 


the  equitable  rule  which  lies  at  the 
foundation  of  these  cases.  It  must 
be  borne  in  mind  also,  that  the 
agreement  of  the  father,  and  his 
assumed  agency  in  accepting  a  deed 
in  pursuance  of  the  agreement,  is 
the  source  or  foundation  of  all  the 
right,  legal  or  equitable,  which 
these  minors  have  in  the  land.  The 
deed  was  made  to  them  solely  by 
direction  of  the  father.  That  was 
the  form  which  the  transaction 
took,  and  in  equity  the  agreement 
that  the  purchase  price  should  be 
secured  by  a  mortgage  upon  the 
land,  the  conveyance. and  the  mort- 
gage must  be  regarded  as  one 
transaction,  and  no  person,  wheth- 
er minor  or  adult,  can  be  permitted 
to  adopt  that  part  of  an  entire 
transaction  which  is  beneficial,  and 
reject  its  burdens.  This  command- 
ing principle  of  justice  is  so  well 
established  that  it  has  become  one 


2114  THE  LAW  OF  DEEDS.  [CHAP.  XXXI. 

in  all  such  cases  equity  will  consider  as  done  that  which  the 
parties  agreed  to  do,  and  which,  as  a  matter  of  fair,  conscienti- 
ous dealing,  ought  to  have  been  done.  On  the  same  principle, 
where  a  trustee  holds  land  for  the  separate  use  of  a  married 
woman  under  a  deed  reserving  to  her  the  right  to  sell,  and 
giving  her  the  power,  in  union  with  her  husband  and  trustee, 
to  convey  the  land,  and  a  trust  deed  is  executed  by  her  and 
her  husband,  to  which  the  trustee  is  not  a  formal  party,  but 
which  in  a  sealed  writing  attached  to  the  instrument  he  ap- 
proves, the  trust  deed  will  create  an  equitable  mortgage,  even 
though  the  legal  title  will  not  pass  because  the  trustee  is  not 
a  legal  party.* 

§  1112.  Absolute  deed  in  equity  when  executed  as 
security  for  money. — Where  the  transaction  is  considered 
to  possess  the  nature  of  a  mortgage,  permitting  the  grantor 
to  demand  a  reconveyance,  the  grantee  has  the  right  to  en- 
force repayment ;  but  where  it  amounts  to  a  conditional  sale, 
so  that  a  repurchase  is  optional  with  the  grantor,  the  grantee 

of   the   maxims   of   the   law.     The  effect':   Heath   v.   West,  28  N.  H. 

father  acted  for  the  children,  and  108. 

they  must  either  accept  or  repudiate  "In  this  case  the  minors  are  be- 

the  entire  contract  which  he  made;  fore  the  court,   and  have  filed   an 

they  cannot  retain  its  fruits  and  at  ^"^wer  by  their  guardian  arf  htem. 

the  same  time  deny  its  obligations.  They  have  not  disclaimed  the  title 


'A  party  cannot  apply  to  his  own 


vested   in   them   by   the   deed   pro- 

,     ,                    .  cured     under     the     circumstances 

use    that    part    of    the    transaction  ,  ,    ,    ,    .        i    *     j  r    4.  *u     r 

^     .            ,  .          ,        c.  stated,  but  seek  to  defeat  the  hen 

which  may  bring  to  him  a  benefit,  ^^   p,,i„tiffs'  mortgage,   so   far   as 

and  repudiate  the  other,  which  may  ^^^^.^    ^.^,^    .^    concerned,    by    the 

not    be    to    his    interest    to    fulfill.  ^^^^  .^^^^  ^^^^  ^^^^  ^^^  ^.^^j^^^  ^^^^ 

Thus  it  had  been  held  that  an  in-  contract  relating  to  the  sale  of  said 

fant  cannot  avoid  a  mortgage  and  i^^^  ^^^  ^^^^^  ^^^y  are  incapable  of 

affirm  a  deed,  when  both  are  made  ratifying  the  same.'     But  what  the 

at  one  and  the  same  time,  relate  to  rules   of   equity   would   not   permit 

the  same  property,  and  go  to  make  them   to    do    if    they   had    attained 

up  one   transaction.     If   the  mort-  their  majority  they  cannot  be  per- 

gage  be  avoided  under  the  plea  of  mitted    to    do    now    through    their 

infancy,   the   deed   becomes   of   no  guardian  ad  litem." 


CHAP.  XXXI.]  DEED   WHEN   A  MORTGAGE. 


2115 


cannot  compel  repayment.  In  other  words,  the  rights  of  the 
parties  must  be  reciprocal.^  The  question  to  be  solved  is 
whether  the  transaction  is  essentially  a  loan.  In  a  case  in 
West  Virginia,  the  grantee,  under  an  absolute  deed,  agreed 
that  the  grantor  might  repurchase  the  lands  conveyed  in  three, 
six,  and  twelve  months  respectively,  for  certain  fixed  sums, 
largely  in  excess  of  the  consideration  expressed  in  the  con- 
veyance, and  interest  thereon,  provided  that  the  grantor  would 
elect  to  repurchase  within  six  months  from  the  date  of  the 
agreement.  The  time  provided  for  the  grantor  to  elect  having 
elapsed  without  his  doing  so,  the  grantee  declined  to  allow 
a  repurchase.  It  appearing  that  the  transaction  was,  in  fact, 
a  loan,  the  court  permitted  the  grantor  to  redeem  by  paying 
the  sum  advanced  with  interest.'^    The  question  is  one  of  in- 


6  Bensimer  v.  Fell,  35  W.  Va.  15, 
29  Am.  St.  Rep.  774.  See,  also, 
Averett  v.  Lipscombe,  76  Va.  404. 

6  Williams  v.  Owen,  10  Sim.  386; 
Crowell  V.  Craig,  C.  C.  79  Fed. 
685 ;  Alderson  v.  White,  2  De  Gex 
&  J.  97;  McNamara  v.  Culver,  22 
Kan.  661,  669;  Hurst  v.  Beaver,  50 
Mich.  612;  Davis  v.  Thomas,  1 
Russ.  &  M.  506 ;  Tapply  v.  Sheath- 
er,  8  Jur.  N.  S.  1163;  Goodman  v. 
Grierson,  2  Ball.  &  B.  274;  Shaw  v. 
Jeffrey,  13  Moore  P.  C.  C.  432; 
Green  v.  Butler,  26  Cal.  595.  See 
People  v.  Irwin,  14  Cal.  428;  Ford 
V.  Irwin,  18  Cal.  117;  Fisk  v.  Stew- 
art, 24  Minn.  97. 

'Klinck  v.  Price,  4  W.  Va.  4; 
6  Am.  Rep.  268;  Hodgkin  v. 
Wright,  127  Cal.  688,  60  Pac.  431 ; 
Fahay  v.  State  Bank  of  O'Neill, 
1  Neb.  (unof.)  89,  95  N.  W.  505; 
Firs.t  National  Bank  v.  Sargent, 
65  Neb.  594,  59  L.R.A.  296,  91 
N.  W.  595;  Rose  v.  Gandy,  137 
Ala.  329,  34  So.  239.  The  sul>- 
stance,     not     the     form,     of     the 


transaction  must  determine  its 
nature :  Holton  v.  Meighen,  15 
Minn.  69;  Spence  v.  Steadman,  49 
Ga.  133;  Hicks  v.  Hicks,  5  Gill  & 
J.  75;  Hill  V.  Edwards,  11  Minn. 
22;  Weide  v.  Gehl,  21  Minn.  449 
Kuhn  V.  Rumpp,  46  Cal.  299 
Wheeland  v.  Swartz,  1  Yeates,  579 
Starks  v.  Redfield,  52  Wis.  349 
Leahigh  v.  White,  8  Nev.  147 ;  Cole 
V.  Bolard,  22  Pa.  St.  431 ;  Lindsay 
v.  Matthews,  17  Fla.  575;  Ehert  v. 
Chapman,  8  Baxt.  (Tenn.)  27; 
Clark  v.  Finlon,  90  111.  245 ;  Wells 
v.  Somers,  4  111.  App.  297;  Scott 
v.  Mewhirter,  49  Iowa,  487.  As  is 
said  in  Robinson  v.  Cropsey,  2 
Fdw.  Ch.  138,  144 :  "If  the  deed  or 
conveyance  be  accompanied  by  a 
condition  or  matter  of  defeasance 
expressed  in  the  deed,  or  even  con- 
tained in  a  separate  instrument  or 
exist  merely  in  parol,  let  the  con- 
sideration for  it  have  been  a  pre- 
existing debt,  or  a  present  advance 
of  money  to  the  grantor,  the  only 
inquiry    necessary    to    be   made    is. 


2116  THE  LAW  OF  DEEDS.  [CHAP.  XXXI. 

tention,  to  be  gathered  from  all  the  facts  and  circumstances 
bearing  upon  the  transaction.'  Where  land  has  been  sold, 
and  by  agreement  between  vendor  and  vendee,  after  default 
in  payment,  an  absolute  decree  of  foreclosure  is  entered  in 
the  vendor's  favor,  and  he  "thereupon  conveys  to  a  third  party, 
who  advances  the  amount  remaining  unpaid,  and  accepts  the 
conveyance  for  the  benefit  of  the  former  vendee,  he  occupies 
the  position  of  a  mere  mortgagee  of  such  former  vendee.®  A 
deed  of  land  with  a  lease  back  to  the  grantor  containing  a 
clause  for  redemption  by  the  payment  of  a  specified  amount 
within  a  specified  time  is  a  mortgage.^ 

§  1113.  Administrators  and  judicial  sales. — Two  per- 
sons occupied  the  position  of  coadministrators  of  an  estate. 
One  of  them  made  a  deed  of  land  to  the  other,  describing  him 
as  the  administrator  of  the  estate.  The  grantor  having  died, 
a  suit  was  brought  by  his  heirs  and  representatives  to  have 
the  deed  declared  to  be  a  mortgage.  The  facts  were,  that 
the  deed  was  intended  only  as  security  for  the  repayment  of 

whether  the  relation  of  debtor  and  which  the  grantor  can  defeat  only 

creditor  remains,   and   a  debt   still  by  a  repurchase,  or  performance  of 

subsists    between    the    parties;    for  the   condition   on   his   part,   within 

if    it    does,    then    the    conveyance  the  time  limited  for  the  purchase, 

must  be  regarded  as  a  security  for  and  in  this  way  entitle  himself  to  a 

the  payment,  and  be  treated  in  all  reconveyance  of  the  property."    See 

respects    as    a   mortgage.      On    the  Wilmerding  v.  Mitchell,  42  N.  J.  L. 

other  hand,  where  the  debt  forming  476. 

the   consideration   for   the  convey-  *  Stephens  v.  Allen,  11  Or.   188; 
ance    is    extinguished   at   the    time  Horbach  v.  Hill,  112  U.  S.  144,  28 
by   the   express    agreement   of   the  L.  ed.  670;  Albany  &  Santiam  Wa- 
parties,  or  the  money   advanced   is  ter  Ditch  Co.  v.  Crawford,  11  Or. 
not  paid  by  way  of  loan,  so  as  to  243;  Davis  v.  Brewster,  59  Tex.  93; 
constitute    a    debt    and    liability    to  Shear  v.  Robinson,  18  Fla.  379. 
repay  it,  but  by  the  terms  of  the  ®  Hoile  v.  Bailey,  58  Wis.  434. 
agreement     the     grantor     has     the  ^  Vliet  v.  Young,  34  N.  J.  Eq.  IS; 
privilege  of  refunding  or  not  at  his  Mobile  Building  etc.  Assoc,  v.  Rob- 
election,   then   it   must   be   deemed  ertson,    65    Ala.    382;    Blizzard    v. 
purchase   money,   and   the   transac-  Craig,  7  Lea  (Tenn,),  693. 
iion  will  be  a  sale  upon  condition, 


CHAP.  XXXI.]  DEED   WHEN   A   MORTGAGE.  2117 

funds  of  the  estate  used  in  paying  the  purchase  money;  the 
grantor  continued  to  reside  on  the  land ;  he  paid  taxes  on  the 
property,  and  erected  permanent  improvements.  After  the 
death  of  the  grantor,  the  grantee  stated  to  a  person  who 
desired  to  buy  the  property,  that  he  thought  he  had  a  mortgage 
on  the  property,  but,  after  examining  his  papers,  he  ascer- 
tained that  he  had  a  deed.  This  statement  was  not  denied  or 
explained  by  the  grantee.  The  court  held  that  while  the 
evidence  must  be  clear  and  convincing,  yet,  that  under  the 
circumstances,  the  deed  should  be  considered  to  be  a  mort- 
gage.* If  an  assignment  of  a  certificate  of  redemption  to 
secure  a  loan  of  money  which  the  assignee  has  made  to  the 
redemptioner,  with  which  to  make  a  redemption  by  means  of 
a  second  mortgage  from  a  sale  made  under  the  foreclosure 
of  a  prior  mortgage,  is,  in  reality,  a  hypothecation  of  the 
redemptioner's  interest  in  the  land,  to  the  lender,  the  latter, 
if  he  obtains  the  sheriff  deed  under  the  certificate  assigned 
to  him,  will  hold  as  mortgagee  and  not  as  absolute  owner." 
If  the  title  is  obtained  by  a  person  at  a  judgment  sale  under 
an  agreement  that  it  is  to  be  security  for  a  debt  or  for  money 
loaned,  the  transaction  is  a  mortgage.* 

§  1114.  Third  person  disputing  character  of  instru- 
ment.— A  third  person,  who  does  not  claim  title  under  any 
conveyance  or  purchase  from  the  grantee  under  an  ab- 
solute deed,  cannot  dispute  the  character  of  the  instrument 
when  it  is  claimed  to  be  a  mortgage.^  Thus,  while  a  grantor 
in  an  absolute  deed  intended  as  a  mortgage  was  absent  from 
the  State,  a  third  person  took  possession  of  the  land  without 

8  Parks   V.    Parks,    66   Ala.    326.  v.  Pierce,  134  Pa.  St.  533,  19  Atl. 

Spicer  V.  Johnson,  61   S.  W.  1041.  689;  Games  v.  BrockenhofF,  136  Pa. 

3  San  Jose   Safe  Deposit  Saving  St.    175,    19   Atl.   958;    Thacher   v. 

Bank  v.  Madera  Bank,  121  Cal.  539,  Morris,  52  W.  Va.  220,  43   S.   E. 

54  Pac.  83.  141,  94  Am.  St.  Rep.  928. 

♦Smith  V.  Doyle,  46  111.  451;  6  Parker  v.  Hubble,  75  Ind.  58a 
Kloch  V.  Walter,  70  III  416;  Jones 


eil8  THE  LAW  OF  DEEDS.  [CHAP.  XXXI. 

having  a  deed  from  the  grantee.  Such  third  person  sold  the 
land  and  deHvered  the  possession  to  another,  who  erected  a 
dwelHng-hoiise  and  made  improvements  upon  the  land,  without 
the  knowledge  of  the  grantor,  and  without  any  surrender  of 
possession  on  his  part.  A  suit  was  brought  to  recover  posses- 
sion from  the  latter  by  the  grantor.  The  defense  made  was, 
that  possession  could  not  be  recovered  on  the  mere  showing 
that  the  deed  was  a  mortgage.  But  the  court  held  that  the 
action  could  be  maintained.  The  court  said:  "Before  the 
adoption  of  the  code,  in  an  action  of  this  sort,  the  plaintiff 
would  not  have  been  permitted  to  show  that  his  deed  was  a 
mortgage.  The  action  being  an  action  at  law,  strictly,  he 
would  have  been  bound  by  the  legal  effect  of  the  deed,  ac- 
cording to  its  terms,  unless  before  suing  in  ejectment,  he  had 
obtained  a  decree  in  equity  declaring  the  true  nature  of  the 
instrument.  Equitable  principles  are  applicable  to  actions  un- 
der the  code,  which  was  designed  to  simplify  the  remedies 
of  parties,  and  to  enable  them  to  obtain  in  one  procedure 
what  before  could  have  been  accomplished  only  by  a  resort 
to  two  tribunals ;  but  it  was  not  intended  to  modify  the  rules 
of  right,  and  permit  the  recovery,  in  the  action  of  the  code, 
of  any  relief  on  terms  on  which  neither  law  nor  equity  would 
before  have  granted  it."  • 

§  1115.  Whenever  a  debt  exists,  transaction  is  a  mort- 
gage.— "It  is  essential  to  a  mortgage  that  there  should 
be  a  debt  to  be  secured.  It  may  be  antecedent  to  or  created 
contemporaneously  with  the  mortgage.'"  It  is  not  requisite, 
however,  that  there  should  be  any  note  or  agreement  to  pay 

6  Parker  v.  Hubble,  75  Ind.  580,  Lodge  v.  Turman,  24  Cal.  385 ;  Lan- 

583,  per  Woods,  J.    And  see  Healey  ders  v.   Beck,  92  Ind.  49;   Stryker 

V.    O'Brien,   66    Cal.    517.  v.  Hershy,  38  Ark.  264;  Ahem  v. 

'Snavely  v.  Pickle,  29  Gratt.  35;  McCarthy,   107   Cal.  382;   Banta  v. 

McNamara  v.  Culver,  22  Kan.  661;  Wise,    135    Cal.   277,   67   Pac.    129; 

Loving   V.    Milliken,   59   Tex.   423;  Piatt    v.    McClurg,    49    Atl.    1125; 

Glover    v.    Payn,    19    Wend.    518;  Usher    v.    Livermore,    2    Iowa    (2 


CHAF.  XXXI.]  DEED  WHEN   A   MORTGAGE. 


2119 


the  debt,  and  therefore  the  nature  of  the  transaction  must  be 
determined  bj  the  facts  and  circumstances  attending  it  if  it 
does  not  appear  that  a  debt  or  loan  was  the  consideration  for 
the  conveyance,  it  will  be  difficult  to  declare  it  a  mortgage.' 
Where  an  absolute  deed  is  made,  not  as  security  for  the  pay- 
ment of  an  existing  debt,  but  is  made  and  accepted  as  paying 
or  discharging  it,  an  agreement  to  reconvey  in  a  certain  time 
and  for  a  certain  sum  does  not  make  it  a  mortgage.  The  ar- 
rangement is  a  conditional  sale,  and  the  grantee's  title  can  be 
defeated  only  by  a  compliance  with  the  terms  of  the  agree- 
ment'   Thus,  where  the  consideration  for  a  deed  absolute  in 


Clarke)  117;  Bobb  v.  Wolf,  148  Mo. 
335,  49  S.  W.  996;  Morrison  v. 
Jones,  31  Mont.  154,  11  Pac.  507; 
Hursey  v.  Hursey,  56  W.  Va.  148, 
49  S.  E.  367;  Fabrique  v.  Cherokee 
etc.  Mining  Co.,  69  Kan  733,  11 
Pac.  584. 

8  Overstreet  v.  Baxter,  30  Kan. 
55;  Flagg  v.  Mann,  14  Pick.  467; 
Gait  V.  Jackson,  9  Ga.  151;  Conway 
V.  Alexander,  7  Cranch,  218,  3  L. 
ed.  321 ;  Lund  v.  Lund,  1  N.  H.  39, 
8  Am.  Dec.  29;  McDonald  v.  Kel- 
logg, 30  Kan.  170;  Martin  v.  Mar- 
tin, 123  Ala.  191,  26  So.  525 ;  Green- 
wood B.  &  L.  Ass'n  V.  Stanton,  28 
Ind.  App.  548,  63   N.   E.  574. 

9  Honore  v.  Hitchings,  8  Bush, 
687;  Hall  v.  Savill,  3  Greene,  G. 
37,  54  Am.  Dec.  485 ;  Stinchfield  v. 
Milliken,  71  Me.  567;  Magnusson 
V.  Johnson,  IZ  111.  156;  Spence  v. 
Steadman,  49  Ga.  133;  Morrison  v. 
Brand,  5  Daly,  40;  Ruffier  v.  Wo- 
mack,  30  Tex.  332 ;  Glover  v.  Payn, 
19  Wend.  518;  Slowey  v.  McMur- 
ray,  27  Mo.  113,  72  Am.  Dec.  251; 
O'Neill  V.  Capelle,  62  Mo.  202; 
Pius  V.  Cable,  44  111.  103;  Haynie 
V.  Robertr.on,  58  Ala.  11;  West  v. 


Hendrix,  28  Ala.  226;  French  v. 
Sturdivant,  8  Me.  246;  Smith  v. 
Crosby,  47  Wis.  160;  Snavely  v. 
Pickle,  29  Gratt.  27;  Hillhouse  r. 
Dunning,  7  Conn.  139;  Murphy  v. 
Purifoy,  52  Ga.  480;  Mobile  Build- 
ing &  Loan  Association  v.  Robert- 
son, 65  Ala.  382;  Vincent  v.  Wal- 
ker, 86  Ala.  333,  5  So.  Rep.  465; 
Booker  v.  Waller,  81  Ala.  549,  8 
So.  Rep.  225;  Perdue  v.  Bell,  83 
Ala.  396,  3  So.  Rep.  698;  Robinson 
V.  Farrelly,  16  Ala.  475;  McMillan 
V.  Jewett,  85  Ala.  476,  5  So.  Rep. 
145;  Tisdale  v.  Maxwell,  58  Ala. 
42;  Adams  v.  Pilcher,  92  Ala.  478, 
8  So.  Rep.  757;  Turner  v.  Wilkin- 
son, 12  Ala.  364;  Bridges  v.  Lind- 
ner, 60  Iowa,  190,  14  N.  W.  Rep. 
217;  Hughes  v.  Sheaff,  19  Iowa, 
335;  Union  Mut.  Life  Ins.  Co.  v. 
Slee,  110  111.  35;  Freer  v.  Lake, 
115  111.  662,  4  N.  E.  Rep.  512;  Rue 
V.  Dole,  107  111.  275;  Sutphen  v. 
Cushman,  35  111.  186;  Batcheller  v. 
Batcheller,  144  111.  471,  33  N.  E. 
Rep.  24;  Fisher  v.  Green,  142  111. 
80,  31  N.  E.  Rep.  172;  Kleinschmidt 
V.  Kleinschmidt,  9  Mont.  477; 
Stryker    v.    Hershy,    38   Ark.    264; 


2120 


THE  LAW  OF  DEEDS. 


[chap,  XXXI. 


form  was  an  old  debt,  the  amount  paid  being  a  fair  price, 
and  there  was  no  agreement  for  repurchase  at  the  time,  but 
afterward  an  agreement  was  made  for  a  reconveyance,  on 


Voss  V.  Elder,  109  Ind.  260,  10  N. 
E.  Rep.  74;  Rogers  v.  Beach,  115 
Ind.  413,  17  N.  E.  Rep.  609;  Reed 
V.  Reed,  75  Me.  264;  Gassert  v. 
Bogk,  7  Mont.  585,  1  L.R.A.  240, 
19  Pac.  Rep.  281;  Gray  v.  Shelby, 
83  Tex.  405,  18  S.  W.  Rep.  809; 
Odell  V.  Montross,  68  N.  Y.  499; 
Kraemer  v.  Adelsberger,  122  N. 
Y.  469,  25  N.  E.  Rep.  859;  Hoile 
V.  Bailey,  58  Wis.  434;  Kerr  v.  Hill, 
27  W.  Va.  576;  Davis  v.  Demming, 
12  W.  Va.  246;  Hoffman  v.  Ryan, 
21  W.  Va.  21  W.  Va.  415;  Yost 
V.  First  Nat.  Bank,  72  Pac.  209, 
66  Kan.  605 ;  Hopper  v.  Syrvester, 
90  Md.  363,  45  Atl.  206;  Blum- 
berg  V.  Beckman,  80  N.  W.  710, 121 
Mich.  647;  Frost  Mfg.  Co.  v. 
Springfield  Foundry  &  Machine  Co., 
79  Mo.  App.  652;  Smyth  v.  Reed, 
78  Pac.  478,  28  Utah,  262;  Sadler 
V  Taylor,  38  S.  E.  583,  49  W.  Va. 
104.  A  member  of  a  limited  part- 
nership, whom  we  shall  designate 
as  A,  held  the  title  to  certain  real 
estate  in  his  own  name,  but  it  con- 
stituted partnership  property,  and 
he  held  the  title  for  the  benefit  ol 
the  firm.  The  special  partner, 
whom  we  shall  designate  as  B, 
withdrew  from  the  firm,  thereby 
dissolving  it,  and  at  that  time  the 
firm  was  indebted  to  him  in  the  sum 
of  sixty  thousand  dollars.  A  exe- 
cuted to  B  a  deed  of  the  property, 
which  was  dated  March  21,  1871, 
and  was  recorded  on  the  following 
day.  This  deed  was  absolute  on 
its  face,  but  an  instrument  dated 
April   1,  1871,  was  executed  by  all 


the  members  of  the  firm,  reciting 
the  indebtedness  of  the  firm  to  B, 
and  that  the  latter  "receives  and 
takes"  from  A  the  deed  and  also 
other  deeds  of  real  estate  held  by 
A  and  conveyed  in  the  same  man- 
ner, as  security  for  the  payment  of 
thirty  thousand  dollars  of  such  in- 
debtedness; B  to  hold  the  property 
as  trustee  only  for  the  firm.  For 
the  balance  of  the  indebtedness  B 
took  the  notes  of  the  firm.  It  was 
stated  in  the  instrument  that  the 
understanding  was  that  B  should 
pay  over  to  his  copartners  what- 
ever he  realized  from  a  sale  of 
the  real  estate  transferred  to  him, 
over  this  sum  of  thirty  thousand 
dollars,  and  the  copartners  agreed 
that  if  this  sum  should  not  be 
realized  they  would  pay  the  balance, 
and  the  sale  was  to  be  made  within 
two  years.  It  was  also  agreed  that 
the  firm  was  to  retain  possession 
of  the  property,  collect  the  rents, 
and  pay  taxes  and  interest  on  a 
mortgage  resting  on  the  property. 
The  net  proceeds  were  to  be  paid 
to  B,  and  applied  toward  the  dis- 
charge of  the  secured  indebtedness. 
B  was  not  to  sell  the  lands  without 
the  consent  of  the  firm  for  a  less 
sum  than  the  sums  mentioned  in 
the  several  deeds,  as  the  considera- 
tion, and  it  was  provided  that  if 
he  should  make  a  sale  at  a  less 
sum  he  should  be  charged  with  the 
difference.  B  died,  and  his  exe- 
cutor, treating  the  deed  and  de- 
feasance as  a  mortgage,  conveyed 
B's  interest  in  them  to  Q  who  com- 


CHAP.  XXXI,]  DEED  WHEN  A   MORTGAGE. 


2121 


payment  of  the  exact  sum  to  which  the  old  debt,  if  it  had  not 
been  paid,  would  have  come,  the  presumption  was  said  to  be 
that  the  conveyance  was  not  a  mortgage.*  A  grantee  under  an 
absolute  deed  executed  an  agreement,  in  which  he  stipulated 
that  if  the  grantor  within  a  prescribed  time  should  return  the 
consideration,  with  interest,  he  would  deliver  up  the  deed, 
but  in  case  of  the  grantor's  failure  to  do  so  he  should  lose  all 


menced  an  action  for  foreclosure. 
C  obtained  judgment,  became  the 
purchaser  at  the  sale  thereunder, 
received  the  referee's  deed,  and 
subsequently  conveyed  the  property 
to  D.  A  contract  was  made  with 
E  for  the  sale  of  the  property,  but 
he  refused  to  accept  a  deed  on  the 
ground  that  the  title  was  defective, 
claiming  that  upon  the  death  of 
B  the  title  vested  in  his  heirs,  and 
that,  because  the  heirs  were  not 
made  parties  in  the  foreclosure 
suit,  they  were  not  affected  by  it. 
E  brought  an  action  to  recover  back 
the  sum  paid  by  him  upon  the 
execution  of  the  contract  of  sale 
and  expenses.  It  was  found  by  the 
referee  that  the  defeasance  was 
executed  "on  or  about  the  date  of 
the  delivery"  of  the  deed.  The 
court  held,  on  appeal,  that  it  was  to 
be  assumed  that  the  defeasance, 
and  acceptance  and  delivery  of  the 
deed,  were  contemporaneous,  and 
that  the  deed  never  took  effect  until 
the  defeasance  was  executed.  The 
two  instruments,  notwithstanding 
the  difference  in  their  dates,  it  was 
held,  were  to  be  taken  and  read 
together,  and  when  so  read  thoy 
constituted  a  mortgage,  in  a  suit  for 
a  foreclosure  to  which  the  heirs 
of  B  were  not  necessary  parties. 
Accordingly  the  title   was  held  to 


be  good,  and  the  action  brought  by 
the  purchaser  could  not  be  main- 
tained :  Kraemer  v.  Adelsberge 
122  N.  Y.  467. 

A  had  a  tax  deed  to  land,  and, 
believing  such  title  to  be  invalid, 
desired  to  secure  the  land  for  the 
purpose  of  cutting  the  timber  there- 
from and  selling  it  to  B,  who  was  a 
mill-owner  engaged  in  manufactur- 
ing lumber  in  that  vicinity.  A 
wrote  to  the  owner  of  the  land  in 
B's  name  and  with  his  consent, 
seeking  to  purchase  it.  Subsequent- 
ly B  purchased  the  land,  paid  the 
price  agreed  on  therefor,  and  took 
the  deed  in  pursuance  of  an  agree- 
ment between  him  and  A  that  the 
latter  would  cut  the  timber  thereon 
and  deliver  it  to  B  at  his  mills  at 
a  price  agreed  on,  and  that  A  should 
receive  credit  for  the  value  of  the 
lumber  so  delivered  upon  the 
amount  advanced  by  B  for  the  land 
until  full  payment  was  made,  when 
B  would  convey  the  land  to  A; 
and  it  was  agreed  that  in  the  mean- 
time B  should  hold  the  title  as 
security  for  the  moneys  advanced 
by  him.  It  was  held  that  B  was  a 
mortgagee :  Stark  v.  Redfield,  52 
Wis.  349.  See  Wells  v.  Morrow, 
38  Ala.  125. 

1  Calhoun  v.  Lumpkin,  60  Tex, 
185. 


« 


2122  THE  LAW  OF  DEEDS.  [cHAP.  XXXL 

claim  to  the  deed.  The  court  held  that  as  there  was  no  debt 
secured,  this  agreement  was  not  the  defeasance  of  a  mortgage, 
but  a  contract  to  reconvey.^  If  the  deed  absolute  in  form 
was  in  fact  intended  as  a  mortgage,  it  may  be  treated  as  a 
mortgage  in  proceedings  to  foreclose.^  And  in  the  case  of  an 
insolvent  estate,  a  deed  made  as  security  for  a  loan  may  be 
treated  as  a  mortgage,  in  a  suit  by  the  administrator  of  the 
estate  of  the  grantor,  for  the  benefit  of  the  grantor's  credit- 
ors.* If  after  the  execution  of  the  deed  the  parties  to  it  still 
understand  that  the  relation  of  debtor  and  creditor  continues, 
this  understanding  should  certainly  be  regarded  as  a  strong 
reason  for  the  belief  that  tlie  deed  was  intended  to  be  a  mort- 
gage.'* 

§  1116.     Voluntary  deed  and  agreement  for  mortgage. 

— Where  a  deed  is  made  at  the  request  of  a  husband  to  his 
wife,  and  she  parts  with  nothing  for  the  conveyance,  the 
property  is  not  to  be  protected  in  her  hands  by  those  rules 
applicable  in  ordinary  cases  to  the  property  of  married  women. 

«  Reading  v.  Weston,  7  Conn.  143,  J.  Eq.   (3  Halst.)  27.     See  Henley 

18   Am.    Dec.   89.      See    Parson   v.  v.  Hotaling,  41  Cal.  22. 

Seay,   35   Ala.  612.     But   wherever  ^  Herron  v.  Herron,  91  Ind.  278. 

there  is  a  recognition  of  a  debt  by  *  Reed  v.  Reed,  75  Me.  264 ;  Ker- 

the   parties,   an   agreement   of   this  rigan  v.  Fielding,  62  N.  Y.  S.  115, 

character    constitutes    the    transac-  rehearing  denied,  63  N.  Y  S.  1110. 

tion   a  mortgage:    Alstin   v.   Cun-  ^  Budd   v.   Van  Orden,  33   N.  J. 

diflF,   52  Tex.  453;   Montgomery  v.  Eq.   143:    Jones  v.   Gillett,   118  N. 

Qiadwick,   7   Iowa,    114.     A   bond  W.  314,  debt  may  be  implied  :   Equi- 

was  executed  by  a  grantee  reciting  table    Building    &    Loan    Assn.    v. 

the  deed  to  him  and  the  indebted-  King,  48  Fla.  252,  Zl  So.  181 ;  Wil- 

ness   of  the   grantor.     It  provided  son    v.    Rehm,    117    111.    App.   473; 

that   if    the   debt   were   discharged  Erown  v.  FoUett,   155  Ind.  316,  58 

on    or   before    a   certain    time,    the  N.  E.   197;  Mott  v.  Fiske,  155  Ind. 

bond   should   be   void,   but   that   it  597,   58   N.    E.    1053;   Tannyhill    v. 

should    continue    in    force    if    the  Pefferl,  7U  Neb.  31,  96  N.  W.  1005; 

grantee  should  refuse  to  reconvey  Balduff   v.    Griswold,  9    Okla.   438, 

the  land  upon  payment.    1  he  trans-  60  Pac.  223 ;  Yingling  v.  Redwine, 

action  was  held  to  be  a  mortgage:  12  Okla.  64,  69  Pac.  810. 
Van  Wagner  v.  Van  Wagner,  7  N. 


CHAP.  XXXI.]  (DEED   WHEN   A   MORTGAGE.  2123 

Thus,  in  such  a  case,  the  husband  gave  his  notes  for  the 
price,  and  signed  a  written  agreement,  to  which,  however, 
his  wife  was  not  a  party,  to  execute  with  her  a  mortgage  back 
after  increasing  a  prior  mortgage  to  a  sufficient  amount  to 
repair  the  buildings.  The  prior  mortgage  was  increased,  and 
the  wife  then  dechned  to  execute  a  second  mortgage  in  com- 
pliance with  the  agreement  made  by  the  husband.  It  appeared 
that  she  did  not  know  of  the  agreement  to  give  the  mortgage 
when  she  accepted  the  deed,  but  in  a  suit  to  compel  her  to 
execute  the  mortgage,  it  was  held  that  this  fact  made  no 
difference,  as,  when  she  learned  of  the  agreement,  she  could 
have  surrendered  the  property,  and  in  that  event  she  would 
have  occupied  no  worse  position  than  when  the  deed  was 
given.  If  she  did  not  wish  to  do  this  she  ought  to  perform 
the  agreement  which  formed  a  material  part  of  the  considera- 
tion for  the  deed.® 

§  1117.  Absolute  deed  made  upon  application  for  loan. 
— Where  a  person,  who  appears  to  be  a  grantor,  desired 
in  the  inception  of  the  transaction  to  borrow  money,  and  ob- 
tains the  money,  courts  are  inclined  to  say  that  the  parties 
have  made  a  mortgage,  although  the  transaction  may  have 
assumed  the  form  of  a  sale.''     "The  circumstance  that  there 


6  Hall    V.    Hall,    59    Conn.    104;  S.    W.   873;    Plummer   v.    Use,   41 

Dillon  V.  Dillon,  24  Ky.  Law  Rep.  Wash.   5,   2   L.R.A.(N.S.)    627,   82 

781,  69  S.  W.  1099.  Pac.   1009,  111  Am.   St.  Rep.  997; 

'  Russell   V.    Southard,    12    How.  Fleming   v.    Georgia  R.   Bank,    120 

139,  13  L.  ed.  927 ;  Holmes  V.  Grant.  Ga.    1023,   48   S.   E.  420;    Mott   v. 

8    Paige,   243;    Parmelee    v.    Law-  Fiske,  155  Ind.  597,  58  N.  E.  1053; 

rence,  44  III.  405 ;  Brown  v.  Nickle,  Le    Compte    v.    Pennock,    61    Kan. 

6  Pa.   St.  390 ;    Miller  v.  Thomas,  330,  59  Pac.  641 ;  Gowin's  Admx.  v. 

14  IlL  42»;  Wheeler  v.  Ruston,  19  Vincent,  27  Ky.  Law  Rep.  1076,  87 

Ind.  334;  Davis  v.  Deming,  12  W.  S.    W.    804;    Moore    v.    Universal 

Va.  246;   Cross  v.  Hepner,  7  Ind.  Elevator  Co.,  122  Mich.  48,  80  N. 

359;   Kellum  v.   Smith.   33   Pa.   St.  W.    1015;   Darling  v.   Darling,    123 

158;  Crassen  v.  Swoveland,  22  Ind.  Mich.  307,  82  N.  W.  48.    In  Miller 

427;  Sears  v.  Dixon,  33  Cal.  326;  v.  Thomas,  14  111.  428,  there  was  an 

Jones    V.    Cullen,    100   Tenn.    1,   42  absolute    deed    and    an    agreement 


2124 


THE  LAW  OF  DEEDS. 


[chap.  XXXI, 


were  negotiations  for  a  loan,  or  the  admission  by  the  grantee 
that  he  loaned  the  money  to  the  grantor,  is  a  strong  circum- 
stance to  show  that  the  real  transaction  was  a  mortgage,  and 
not  a  conditional  sale."  ' 


for  a  reconveyance  within  a 
limited  time.  The  money  not 
being  repaid  at  the  time  agreed 
upon,  possession  was  taken  by  the 
mortgagee,  and  the  land  sold  to  a 
third  person.  Says  the  court: 
"Upon  this  subject  Shephard  was 
consulted,  who  suggested  that  if 
he  took  a  mortgage  it  would  take 
as  long  to  collect  it  as  it  would  to 
sue  the  note.  He  then  said  he 
would  buy  the  land,  but  in  such  a 
way  that  he  could  sell  it  at  a  certain 
day,  for  he  would  not  have  has 
money  out  of  his  hands  beyond  his 
control.  The  result  was  a  convey- 
ance of  the  land  from  Edwards, 
and  an  agreement  for  a  resale  or 
conveyance  upon  the  payment  of  the 
amount  due  upon  a  certain  day. 
There  is  much  evidence  given  of 
the  declarations  of  the  parties  as 
to  their  intentions,  made  not  only 
at  the  time  of  the  transaction,  but 
subsequently,  which  it  is  unneces- 
sary to  recapitulate  minutely.  As 
is  generally  observed  in  such  cases, 
the  strength  of  the  declarations 
testified  to  vary  very  much  accord- 
ing to  the  inclination  of  witnesses, 
and  the  form  of  the  questions  put 
to  them  eliciting  the  answers.  Upon 
the  whole,  it  is  manifest  that  it 
was  the  intention  of  both  parties  to 
provide  the  strongest  security  pos- 
sible for  the  payment  of  the  money 
designed  to  be  secured  at  the  day 
stipulated,  but,  after  all,  it  was  only 
as  security  that  the  conveyance  was 
made.     While,   on   the   one   hand, 


Edwards  (the  grantor)  stated,  if 
he  did  not  pay  the  money  at  the 
time  agreed  upon,  he  must  lost  his 
land,  on  the  other,  Brown  stated 
that  he  held  the  land  as  security 
for  the  payment  of  the  money.  .  .  . 
In  cases  of  this  sort,  the  real  char- 
acter of  the  arrangement  may  as 
often  be  gathered  from  the  nature 
of  the  transaction  and  character  of 
the  circumstances  as  from  the  ex- 
press declarations  of  the  parties. 
These  when  considered  can  leave 
the  mind  in  but  little  doubt  on  the 
subject.  It  is  manifest  beyond  con- 
tradiction, that  Brown  did  not  wish 
to  become  the  real  purchaser  of  the 
land,  but  he  wanted  his  money  at 
the  time  agreed  upon.  Edwards  did 
not  wish  to  part  with  the  land,  but 
desired  to  give  Brown  the  most  per- 
fect security  upon  it  that  the  money 
should  be  promptly  paid." 

8  Davis  v.  Deming,  12  W.  Va. 
246,  283,  per  Green,  J,  In  Locke 
v.  Palmer,  26  Ala.  312,  the  court 
observes :  "There  are,  in  most 
cases  of  this  character,  no  tests 
which  will  enable  a  court  to  de- 
termine with  anything  like  positive 
certainty,  whether  a  mortgage  or  a 
conditional  sale  was  intended ;  but 
the  inclination  of  equity  in  such 
cases  is  always  to  lean  against  the 
latter,  for  the  reason  that  an  error 
which  converted  the  transaction 
into  a  mortgage  would  not  be  as 
injurious  as  a  mistake  which 
changed  a  mortgage  into  a  con- 
ditional  sale;    and   this    leaning   is 


CHAP.  XXXI.]  DEED  WHEN  A   MORTGAGE. 


2125 


§  1118.  Presumption  of  loan. — As  the  intention  of  the 
grantor  in  the  beginning  was  to  borrow  money,  the  presump- 
tion is  natural,  unless  an  alteration  of  this  intention  is  shown, 
that  any  transfer  made  of  his  property,  connected  with  nego- 
tiations for  borrowing  money,  was  made  as  security  for  a 
loan.®  And  this  is  true,  though  a  different  consideration  than 
the  one  first  sought  be  recited  in  the  deed.    The  parties  having 


strongly  manifested  whenever  the 
contract  had  its  origin  in  a  propo- 
sition for  a  loan,  or  the  relation  of 
debtor  and  creditor  existed  be- 
tween the  parties ;  these  circum- 
stances being  regarded  as  amongst 
the  circumstances  tending  to  show 
that  a  mortgage  was  intended." 

9  Davis  V.  Hemenway,  27  Vt.  589, 
Anon.,  2  Hayw.  (N.  C.)  26;  Crews 
V.  Treadgill,  35  Ala.  334,  344:  Beebe 
V.  Wisconsin  Mtg.  Loan  Co.,  117 
Wis.  328,  93  N.  W.  1103;  Schneider 
V.  Reed,  123  Wis.  488,  101  N.  W. 
682.  In  Crews  v.  Treadgill  (supra) 
the  court  said:  "This  case,  then, 
furnishes  most  of  the  evidences  of 
a  mortgage.  It  originated  in  a  loan 
of  money;  the  possession  of  the 
premises  remained  with  the  grantor 
by  the  permission  of  the  grantee, 
and  the  amount  of  money  advanced 
was  little,  if  any,  more  than  half 
the  then  market  value  of  the  lands." 
This  case  approves  the  earlier  de- 
cision of  Locke  V.  Palmer,  26  Ala. 
312. 

In  Smith  V.  Sackett,  15  111.  528, 
the  court  said  (p.  533),  per  Scates, 
J:  "Though  the  loan  was  refused 
in  the  usual  form  on  a  note  or 
mortgage,  yet  they  made  no  par- 
ticular objection  to  receiving  it  in 
the  form  of  a  bond  for  a  deed  from 
the  lender.    It  is  very  apparent  that 


Sackett  preferred  and  insisted  upon 
this  form,  under  the  impression 
that  upon  a  failure  of  payment  it 
gave  him  the  advantage  of  raising 
the  amount  by  sale  to  another,  sup- 
posing the  form  of  the  transaction 
conclusive  of  its  true  character.  It 
was  in  this,  if  at  all,  he  committed 
his  mistake.  Courts  will  look  be- 
hind and  outside  of  deeds  to  ascer- 
tain whether  they  were  intended  as 
mortgages,  although  absolute  upon 
their  face;  and  when  that  character 
is  established,  it  will  ever  be  treated 
as  a  mortgage." 

In  Davis  v.  Hopkins,  IS  111.  519, 
in  a  similar  case,  the  court  said: 
"Indeed  it  seems  to  be  a  device  re- 
sorted to  for  the  concealment  of 
usury,  or  hard  and  unconscionable 
terms,  but  it  is  destined  to  defeat. 
Whenever  its  true  character  may 
be  reached  and  exposed  by  proofs, 
I  do  not  perceive  that  it  opens  the 
door  any  wider  than  it  already 
stands  to  combinations  of  fraud  and 
perjury.  All  our  transactions  are 
liable  to  the  same  where  we  are 
destitute  of  evidence  for  their  ex- 
posure; and  the  remedy  proposed 
by  disregarding  would  equally  ap- 
ply and  exclude  all  testimony,  ver- 
bal or  written,  because  it  might  be 
the  result  of  combination,  fraud, 
deceit,  perjury,  and  forgery." 


2126 


THE  LAW  OF  DEEDS. 


[chap.  XXXI. 


treated  as  borrower  and  lender,  the  conveyance  will  be  con- 
sidered a  mortgage,  unless  it  appear  that  they  afterward  con- 
tracted for  a  sale  of  the  property  without  reference  to  the 
loan,*    In  a  case  in  New  York,  where  an  absolute  deed  was 


1  Morris  v.  Nixon,  1  How.  118, 
11  L.  ed.  69.  And  see  Sweetzer's 
Appeal,  71  Pa.  St  264;  Leahigh  v. 
White,  8  Nev.  147;  Dwen  v.  Blake, 
44  111.  135;  Tibbs  v.  Morris,  44 
Barb.  138;  Richardson  v.  Barrick, 
16  Iowa,  407;  Smith  v.  Doyle,  46 
111.  451;  Knowlton  v.  Walker,  13 
Wis.  264;  Phillips  v.  Hulsizer,  20 
N.  J.  Eq.  308;  Marvin  v.  Prentice, 

49  How.  Pr.  385 ;  Fiedler  v.  Darrin, 

50  N.  Y.  437,  441. 

In  Preschbaker  v.  Feaman,  Zl 
111.  475,  one  Servant  was  employed 
by  the  parties  to  draw  the  papers 
between  them.  In  his  testimony  he 
said  that  he  first  drew  a  condition- 
al deed,  but  the  parties  preferred  a 
regular  deed  with  an  agreement  for 
a  reconveyance,  and  he  drew  the 
papers  accordingly.  Several  wit- 
nesses who  were  present  at  the 
negotiations  testified  that  Presch- 
baker desired  to  sell  the  farm. 
Others  testified  that  Preschbaker 
had  frequently  said  that  he  had 
sold  the  farm.  The  lower  court 
regarded  the  transaction  a  con- 
ditional sale,  and  dismissed  the  bill 
to  redeem.  On  appeal  the  Supreme 
Court  reversed  the  judgment,  say- 
ing: "To  determine  whether  such 
a  transaction  is  a  sale,  or  a  mort- 
gage to  secure  the  payment  of  the 
money  advanced,  the  intention  of 
the  parties  at  the  time  must  control. 
To  ascertain  that  intention,  the 
transaction  must  be  viewed  in  the 
light  of  all  the  surrounding  cir- 
cumstances.    In   equity,   the    form 


of  the  transaction  is  not  regarded, 
but  the  substance  must  control. 
.  .  .  In  such  a  case  all  of  the 
attendant  circumstances  will  be 
considered  in  ascertaining  the  true 
character  of  the  transaction.  It 
is  from  them  the  intentions  of  the 
parties  can  be  ascertained.  .  .  . 
It  then  remains  to  determine  wheth- 
er the  evidence  in  this  case  brings 
it  within  the  rule;  whether  it  is 
shown  to  have  been  designed  as  a 
mortgage  or  a  conditional  sale. 
Both  instruments  having  been  exe- 
cuted at  the  same  time,  must  be 
regarded  as  forming  but  one  trans- 
action, and  they  seem  rather  to 
indicate  a  loan  and  mortgage  than 
a  purchase  and  resale.  Such  pur- 
chases and  resales  are  not  of  fre- 
quent occurrence,  while  such  mort- 
gages are  usual."  The  court,  after 
reviewing  the  evidence,  said :  "And 
whilst  the  evidence  is  somewhat 
conflicting,  yet  when  all  of  the  cir- 
cumstances are  considered,  we  can- 
not avoid  the  conclusion  that  it  was 
designed  as  a  mortgage  to  secure  a 
loan."  See,  also,  Harbison  v. 
Houghton,  41  111.  529;  Whitcomb 
v.  Sutherland,  18  111.  578;  Coates 
v.  Woodworth,  13  111.  654. 

In  Ruckman  v.  Alwood,  71  111. 
155,  one  A.  J.  Alwood  was  perse- 
cuted by  mob  violence,  which  re- 
sulted in  the  burning  of  his  crops. 
His  lands  were  new,  and  he  was 
embarrassed  for  means  to  develop 
them.  Ruckman,  a  man  of  wealth, 
was    a    cousin,    and    professed    a 


CHAP.  XXXI.]  DEED   WHEN  A   MORTGAGE. 


2127 


held  to  be  a  mortgage,  the  court,  speaking  of  the  circum- 
stances that  led  it  to  that  conclusion,  said :  "The  application 
was  for  a  loan,  and  all  the  negotiations  were,  in  respect  to 
the  form  of  the  security,  upon  the  premises  in  question;  and 
there  was  no  treaty  for  a  purchase  by  the  plaintiff,  and  no 
pretense  that  the  defendants  would  have  sold  the  premises 
for  the  sum  actually  alvanced  by  the  plaintiff,  or  for  twice 
that  amount.  The  time  of  repayment  was  the  day  fixed  by 
the  borrower  on  the  first  application;  and  the  amount  to  be 
repaid,  the  principal  sum  advanced,  and  the  ten  per  cent  pro- 
posed to  be  paid,  and  which  the  plaintiff  was  so  willing  to 


receive 


»« 2 


friendly  interest  in  Alwood.  He 
suggested  to  Alwood  the  idea  of 
conveying  the  property  to  him  as  a 
means  of  avoiding  these  persecu- 
tions. Ruckman  advanced  money, 
and  took  an  absohite  deed.  Alwood 
frequently  said  to  the  neighbors 
that,  although  he  was  still  in  pos- 
session, he  had  ceased  to  have  any 
interest  in  the  lands  or  the  products, 
but  had  sold  the  premises  to  Ruck- 
man.  Ruckman  attempted  to  treat 
the  deed  as  absolute,  but  the  court 
held  it  to  be  a  mortgage. 

2  Fiedler  v.  Darrin,  50  N.  Y.  438, 
442.  An  agreement  for  a  sale  of 
land  for  which  a  deed  is  to  be  exe- 
cuted in  two  years,  with  an  in- 
dorsed agreement  by  the  vendee  to 
cancel  the  agreement  on  repayment 
of  the  price,  with  interest,  by  the 
vendor,  within  two  years,  is  a  mort- 
gage: Brown  v.  Nickle,  6  Pa.  St. 
390.  In  Kerr  v.  Gilmore,  6  Watts, 
405,  the  court  says  (p.  407)  :  "The 
result  of  these  cases  seems  to  be 
that,  if  the  agreement  is  in  sub- 
stance a  loan  of  money,  no  manage- 
ment or  contrivance  of  the  lender; 


no  form  of  expression  in  the  in- 
struments ;  not  even  dating  the  de- 
feasance several  days  after  the 
deed;  not  even  the  lender  uniformly 
stating  that  he  will  not  have  a 
moitgage,  will  avail.  A  sale  in 
form,  but  which  in  fact  and  sub- 
stance may  be  avoided  by  the 
payment  of  money  within  a  given 
time,  is  and  will  be  held  to 
be  a  mortgage;  if  a  mortgage 
until  that  period  elapses,  it  must 
continue  a  mortgage  until  lapse 
of  time  or  some  other  matter 
changes  it.  In  different  cases  we 
find  different  particulars  stated  as 
being  criteria,  by  which  to  distin- 
guish whether  the  instrument  be  a 
mortgage  or  an  absolute  sale.  Each 
of  these  may  have  weight ;  but  it 
is  not  safe  to  designate  the  in- 
sertion or  omission  of  any  one 
clause  or  circumstance  as  conclusive, 
for  that  would  be  adopted  by  the 
rapacious,  and  submitted  to  by  the 
needy,  and  the  wholesome  rt.'»« 
now  established  would  become  use- 
less." The  court,  conceding  that 
the  parties  in  a  fair  case  may  make 


2128  THE  LAW  OF  DEEDS.  [CHAP.  XXXI. 

§  1119.  Sale  may  have  been  made. — But  it  does  not 
by  any  means  follow  that  because  the  transaction  began  by 
an  application  for  a  loan,  a  loan  was  made.  An  application 
of  this  character  may  terminate  in  either  an  absolute  or  con- 
ditional sale.  Undoubtedly,  courts  will  carefully  scrutinize 
all  transactions  where  a  sale  has  been  the  result  of  negotiations 
initiated  by  an  application  for  a  loan.  Yet  when  it  clearly 
appears  a  sale  was  intended,  it  will  be  upheld.^  Where  a 
mortgagor  applied  to  the  mortgagee  for  a  second  loan,  and 
the  latter  refused  to  give  him  the  money,  but  agreed  to  pur- 
chase the  land,  giving  up  the  first  mortgage  and  paying  the 
additional  sum  sought  by  the  mortgagor,  and  agreed  also 
that  the  mortgagor  might  repurchase  within  six  months  on 
repayment  of  both  the  original  loan  and  the  additional  sum 
paid,  the  transaction  was  held  to  be  a  sale  with  a  right  of 
repurchase,  and  not  a  mortgage.* 

§  1120.  Delivery  of  deed  in  payment  of  debt. — An 
agreement  by  a  grantee  under  an  absolute  deed,  delivered 
in  payment  of  a  debt  made  at  the  same  time  as  the  deed,  to 
reconvey  upon  receiving  within  a  stipulated  time  an  amount 
equal  to  the  debt  and  interest,  does  not  necessarily  constitute 

a  conditional  sale,  continues :    "The  Colwell    v.   Woods,   3    Watts,    188, 

authorities,  however,  say  that,  even  27   Am.    Dec.    345 ;    Poindexter    v. 

when  the  matter  assumes  this  ap-  McCannon,  1  Dev.  Eq.  373,  18  Am. 

pearance,  the  courts  are  bound  to  Dec.  591 ;  Crane  v.  Bonnell,  1  Green 

scrutinize      the      transaction     with  Ch.  264. 

great  care,  and  to  be  watchful  that  ^  Turner   v.    Kerr,    44    Mo.    429 ; 

it  was  not  originally  a  loan  of  mon-  Holmes  v.  Fresh,  9  Mo.  201,  206; 

ey;    and    when    we    consider    that  Flagg  v.  Mann,  14  Pick.  467;  Mc- 

many  of  those  who  lend  are  astute  Donald  v.  McLeod,  1  Ired.  Eq.  221 ; 

to  devise  some  mode  by  which  to  De  France  v.  De  France,  34  Pa.  St. 

become  absolute  owners,  if  the  mon-  385 ;   Ahem  v.  McCarthy,   107  Cal. 

ey  be  not   repaid  at  the  day,  this  382,  40  Pac.  482;  Miller  v.  Green, 

caution   would   seem   to  be   neces-  138  III.  563,  28  N.   E.  837;   Shays 

sary."    See  People  v.  Irwin,  14  Cal.  v.    Norton,   48   111.    100 ;    Sadler   v. 

428 ;    Kelleran   v.   Brown.  4   Mass.  Taylor,  38  S.  E.  583,  49  W.  V.  104. 

443;  Eaton  v.  Green,  22  Pick.  526;  *  Adams  v.  Adams,  51  Conn.  544. 


CHAP,  XXXI.]  DEED   WHEN   A  MORTGAGE. 


2129 


the  transaction  a  mortgage.-  The  test  in  all  these  cases  is  the 
existence  of  a  debt.  Wherever  there  is  a  debt  which  may 
be  the  subject  of  an  action,  the  deed  must  be  declared  a 
mortgage.  But  where  the  conveyance  discharges  the  debt, 
and  this  is  the  intention  of  the  parties,  so  that  an  action 
could  not  be  maintained  to  recover  the  debt,  it  being  paid, 
the  sale  must  be  held  absolute.^  Where  the  title  has  been 
transferred  by  an  actual  sale,  a  contract  by  the  purchaser  for 
a  resale  of  the  property,  within  a  specified  time,  for  the  price 
that  he  paid,  does  not  change  the  transaction  into  a  mortgage.® 
The  essential  fact  to  be  determined  is,  whether  the  conveyance 
operates  as  a  discharge  of  the  debt.  If  the  indebtedness  re- 
mains uncanceled,  the  conveyance  is  treated  in  equity  as  a 
mortgage,  though  the  grantee  may  not  regard  it  as  such. 
But  he  cannot  hold  the  absolute  title  without  at  the  same 
time  relinquishing  the  right  to  compel  payment  of  the  debt.'' 
The  fact  that  the  vendee  maintains  possession  for  a  long  time 


BPage  V.  Vilhac,  42  Cal.  75; 
Farmer  v.  Grose,  42  Cal.  169;  Mor- 
rison V.  Brand,  5  Daly,  40;  Weath- 
ersly  v.  Weathersly,  40  Miss.  462, 
90  Am.  Dec.  344;  Turner  v.  Kerr, 
44  Mo.  429;  Hoopes  v.  Bailey,  28 
Miss.  328;  Baugher  v.  Merryman, 
32  Md.  185;  Holmes  v.  Warren, 
145  Cal.  457,  78  Pac.  954;  Samuel- 
son  V.  Mickey,  1Z  Neb.  852,  103 
N.  W.  671,  Id.  IZ  Neb.  852,  106  N. 
W.  461 ;  Doying  v.  Chesebrough,  36 
Atl.  893;  Sadler  v.  Taylor,  49  W. 
Va.  104,  38  S.  E.  583;  Fuller  v. 
Jenkins,  130  N.  C.  554,  40  S.  E. 
706;  Creswell  v.  Smith,  61  S.  C. 
576,  39  S.  E.  757 ;  Dabney  v.  Smith, 
38  Wash.  40,  80  Pac.  199.  In 
Farmer  v.  Grose,  42  Cal.  169, 
the  court  said :  "In  cases  of 
this  class  the  well-established 
test  by  which  to  determine  whether 
the  transaction  is  a  mortgage  or  a 
Deeds,  Vol.  H.— 134 


defeasible  sale  is  the  fact  whether 
or  not,  notwithstanding  the  con- 
veyance, there  is  a  subsisting  con- 
tinuing debt  from  the  grantor  to 
the  grantee.  If  the  consideration 
for  the  conveyance  was  an  ante- 
cedent debt,  and  the  property  is  to 
be  reconveyed  on  the  payment  of 
the  debt  with  interest,  and  nothing 
more  appears,  prima  facie  the 
transaction  would  be  a  mortgage. 
In  like  manner,  if  there  was  no 
antecedent  debt,  but  a  loan  of  mon- 
ey to  be  repaid  with  interest,  and 
such  was  the  real  intention  and 
understanding  of  the  parties,  it 
would  be  a  mortgage  and  not  a  de- 
feasible sale,  whatever  may  be  the 
terms    employed    in   the    contract." 

6  Mason  v.  Moody,  26  Miss.  184 ; 
Porter  v.  Nelson,  4  N.  H.  130. 

7  Sutphen  v.  Cushman,  35  III.  186. 


2130  THE  LAW  OF  DEEDS.  [CHAP.  XXXI. 

without  the  payment  of  interest  or  rent,  and  the  relation  of 
debtor  and  creditor  is  not  recognized  in  the  subsequent  deal- 
ings of  the  parties,  tends  to  show  that  the  transaction  was 
not  a  mortgage.'  Where  the  relation  of  debtor  and  creditor 
continues,  the  grantee  possesses  the  right  to  call  upon  the 
grantor  for  any  deficiency  arising  upon  a  foreclosure  and 
sale.  Unless  he  has  this  right,  an  agreement  to  reconvey 
with  the  deed  creates  a  conditional  sale.^  A  mortgagor  exe- 
cuted a  quitclaim  deed  to  the  mortgagee,  who  held  two  over- 
due mortgages  on  the  land,  the  grantor  taking  back  a  lease. 
There  was  a  provision  for  a  reconveyance  if  he,  the  grantor 
and  debtor,  should  pay  the  debt  within  a  time  specified,  and 
the  old  notes  and  mortgages  were  not  surrendered.  The 
court  held  that  the  instrument  was  to  be  treated  as  a  mort- 
gage, and  not  as  an  absolute  deed.^ 

§  1120a.  Note  for  deficiency  after  payment  of  a  pre- 
existing debt. — But  the  fact  that  the  grantee  in  the  deed 
takes  a  note  from  the  grantor  does  not  of  itself  show  that 
the  deed  is  intended  as  a  mortgage.  The  fact  to  be  de- 
termined is  whether  the  property  is  conveyed  by  the  grantor 
and  accepted  by  the  grantee  in  total  or  partial  payment  of 
the  debt.  Prior  to  the  execution  of  a  deed,  the  grantors 
were  indebted  to  the  grantees  in  the  sum  of  eighteen  hundred 
dollars,  and  the  deed  was  given  in  satisfaction  of  such  in- 
debtedness, and,  at  the  time  of  the  execution  of  the  deed, 
the  grantors  gave  to  the  grantees  their  note  for  five  hundred 
dollars,  with  the  understanding  that  if,  from  a  sale  of  the 
land  conveyed,  the  sum  of  eighteen  hundred  dollars  and  in- 
terest thereon  should  not  be  realized,  then  the  note  should 

6  O'Reilly     v.     O'Donoghue,     Ir.  Clark,  5  Ark.  321;  Saxton  v.  Hit  li- 

Rep.  10  Eq.  IZ.  cock,   47    Barb.   220;    De   Bruhl    v. 

^  Robinson  V.  Cropsey,  2  Edw.  Ch.  Maas,     54    Tex.     464;     Porter    v. 

138;  Blackmore  v.  Byrnside,  7  Ark,  Clements,  3  Ark.  364.     See  Usher 

505;   Slowey  v.  Mc]\Iurray.  27  Mo.  v.  Livermore,  2  Iowa,  117. 

113.  72  Am.  Dec.  251;  Johnson  v.  i  Bearss  v.  Ford.  108  111,  16. 


CHAP.  XXXI.]  DEED  WHEN   A   MORTGAGE.  2131 

be  paid,  but  not  otherwise.  If  a  greater  sum  were  obtained, 
or  if,  after  tliat  sum  was  realized,  any  land  remained,  the 
surplus  of  land  or  money  it  was  agreed  should  belong  to 
the  grantors.  The  court  held  that  the  agreement  did  not 
constitute  the  deed  a  mortgage.  The  note  for  five  hundred 
dollars  was  executed  merely  for  the  purpose  of  rendering 
certain  the  full  realization  of  the  antecedent  indebtedness, 
if  the  land  conveyed  when  sold  should  not  realize  that  sum.^ 

§  1121.  Purchase  of  mortgaged  premises  by  mort- 
gagee.— A  mortgagee  has  the  right  to  purchase  the  mort- 
gaged premises.  If  the  deed  made  to  him  is  in  satisfaction 
of  the  mortgage  debt,  the  deed  does  not  thereby  become  a 
mortgage.  An  owner  of  land  had  made  deeds  of  trust  and 
had  not  paid  the  interest  or  taxes  for  four  years.  On  re- 
ceiving notice  that  the  property  would  be  sold,  he  stated  that 
he  preferred  to  make  a  deed  for  the  prof)erty  rather  than  to 
have  a  sale  take  place  under  the  trust  deeds  or  on  foreclosure 
Finally  the  amount  due  was  determined,  and  he  executed 
a  deed  absolute  in  form  for  the  property.  But  he  took  back 
a  contract  to  convey  the  land  to  him  upon  the  payment  of 
the  amount  found  to  be  due  within  one  year.  He  executed, 
however,  no  new  obligation,  and  his  notes  and  deeds  of  trust 
were  surrendered,  and  the  trust  deeds  were  satisfied  on  the 
records.  This  transaction  was  held  to  be  a  sale  of  the  equity 
of  redemption,  and  not  in  any  sense  a  mortgage.'     The  con- 

2  Manasse  v.  Dinkelspiel,  68  Cal.  provided  he  pays  a  certain  amount 
404.  at  a  certain  time.     If,  then,  there 

3  Rue  V.  Dole,  107  111.  275.  "No  was  no  debt  due  from  Rue  to  the 
new  note  was  given,"  said  Mr.  Jus-  executors,  how  could  the  deed  and 
tice  Craig,  "nor  was  there  any  contract  be  held  to  be  a  mortgage? 
agreement  by  Rue  to  pay  the  exe-  The  land  could  not  be  conveyed  as 
Ctitor  a  single  dollar.  The  contract  security  for  a  debt,  because  there 
given  to  him  does  not  bind  him  to  was  no  debt  to  secure.  Suppose  the 
make  any  payment  whatever,  but  complainants  had,  after  the  deed 
it  merely  provides  that  the  executor  and  contract  were  executed,  and 
bhall  convey  the  premises  to  him,  after  the  time  for  a  conveyance  had 


2132  THE  LAW  OF  DEEDS.  [CHAP.  XXXI. 

tract  by  which  the  mortgage  is  converted  into  a  sale  should 
be  based  on  an  adequate  consideration,  and  should  be  fair 
and  reasonable.* 

§  1122.  Liability  for  taxes. — Where  no  agreement  ex- 
ists to  the  contrary,  the  grantee  of  a  deed  absolute  in  form 
but  intended  as  a  mortgage  is  liable  as  between  himself  and 
grantor,  according  to  a  decision  in  Maryland,  to  pay  the  taxes 
on  the  property  which  have  accrued  after  the  date  of  the 
deed.* 

§  1123.  Comments. — The  decision  in  the  case  cited  in 
the  preceding  section  undoubtedly  would  have  been  good  law 
in  California,  where  by  force  of  constitutional  provisions 
formerly  existing  the  mortgagee  was  compelled  to  pay  the 
taxes  on  his  mortgage,  which  for  the  purposes  of  assessment 
and  taxation  was  deemed  and  treated  as  an  interest  in  the 
property  affected  thereby.®  But  where  the  mortgage  is  not 
taxed *to  the  mortgagee,  it  is  doubtful  if  this  decision  would 
be  regarded  as  correctly  stating  the  law.  If  a  deed  absolute  in 
form  is  in  fact  a  mortgage,  it  should  be  treated  as  a  mortgage 
for  all  purposes,  and  all  the  consequences  that  attach  to  a  mort- 
gage, such  in  form,  should  also  attach  to  an  instrument  which 

expired,  sued  the  defendant  in  an  Jewett,    85    Ala.    476,    5    So.    145 : 

action  at  law  to  recover  the  amount  Dougherty  v.  McColgan,  6  Gil.  N. 

of  the  original  indebtedness,  could  T.    275;    Wilson    v.    Giddings,    28 

the   action  have  been  maintained?  Ohio    St.    554;    Carpenter   v.    Car- 

We  think  not,   for  the  reason  the  penter,  70  111.  457;  Cassens  v.  Heu- 

land  was  conveyed   in   satisfaction  stis,  201  111.  208,  66  N.  C.  283,  94 

of  the  indebtedness.     And  where  a  Am.  St.  Rep.  160;  Cramer  v.  Wil- 

plea  of  payment  would  operate  as  son,  202  111.  83,  66  N.  E.  869;  Sad- 

a  bar  to  an  action  of  that  character,  ler  v.   Taylor,  49  W.  Va.    104,   38 

for  the  reason  the  conveyance  had  S.    E.    583.      A    new    consideration 

extinguished  the  debt,  the  transac-  i?;    necessary:     Hursey    v.    Hursey, 

tion  may  be  regarded  as  an  absolute  56  W.  Va.  148,  49  S.  C.  367. 

sale."  5  Davis  v.  Hall,  52  IMd.  673. 

*Le  Compte  v.   Penmost,  61   Kan.  ^  CaL  Const,  art.  xiii,  §§  4,  5. 
330,    59    Pac.    641;    McMuUen    t. 


CHAP.  XXXI.]  DEED   WHEN  A   MORTGAGK  2133 

in  substance  is  a  mortgage,  regardless  of  what  its  form  may 
be.  It  seems  to  the  author,  that  if  the  grantee  is  declared  to 
be  a  mortgagee,  he  should  not  occupy  a  worse  position  than 
he  would  have  occupied  had  the  instrument  been  in  the  form 
of  a  mortgage;  and  hence,  it  would  seem  reasonable,  in  those 
States  where  no  deduction  is  made  in  favor  of  the  mortgagor 
for  mortgages  on  his  property,  that  he  should  be  chargeable 
with  the  taxes  paid  by  the  grantee  under  an  absolute  deed 
intended  as  a  mortgage. 

§  1124.  Third  person  as  purchaser. — If  a  third  person 
is  induced  to  become  a  purchaser,  and  he  agrees  to  convey 
the  premises  to  the  person  inducing  him  to  purchase  on  the 
payment  of  a  certain  sum  to  him  within  a  certain  time,  the 
agreement  must  be  complied  with,  or  all  rights  to  purchase 
under  it  are  forfeited."^  A  conditional  sale  and  not  a  mortgage 
must  be  the  result  where  the  relation  of  debtor  and  creditor 
is  not  created.'  But  in  equity,  if  the  debtor  has  any  interest 
in  the  property,  legal  or  equitable,  and  obtains  a  conveyance 
for  a  person  who  advances  money  therefor,  upon  an  under- 
standing that  the  title  shall  be  transferred  to  him  upon  paying 
the  money  advanced,  he  has  the  right  to  redeem  from  the 
grantee,  who,  having  secured  the  title  by  his  act,  holds  it  as 
his  mortgage.^  Where  a  person  has  a  contract  for  the  pur- 
chase of  land,  and  procures  another  who  takes  the  deed  in 
his  own  name  to  advance  the  money,  the  latter  is  a  mortgagee, 

'Hill   V.    Grant,   46   N.   Y.   496;  93    Am.    Dec.    755;    Stoddard    v. 

Stephenson    v.    Thompson,    13    111.  Whiting,  46  N.  Y.  627;  Turner  v. 

186;  Hull  V.  McCall,  13  Iowa,  467;  Wilkinson,  72  Ala.  361;  Wright  v. 

Roberts  v.  McMahan,  4  Greene,  G.  Shumway,  1  Biss.  23 ;  Carr  v.  Carr, 

34  52  N.  Y.  251 ;  Lindsay  v.  Matthews, 

8  Humphrey  v.  Snyder,  1  Morris,  17  Fla.  575 ;  Hoile  v.  Bailey,  58 
263;  Gait  v.  Jackson,  9  Ga.  151;  Wis.  434 ;  Fisk  v.  Stewart,  24  Minn. 
Chapman  v.  Ogden,  30  111.  515.  See  97 ;  McBurney  v.  Wellman,  42  Barb. 
Carr  v.  Rising,  62  111.  14;  Smith  v.  390;  Stinchfield  v.  Milliken,  71  Me. 
Sackett,  15  111.'  528.  567. 

9  Houser  v.  Lament,  55  Pa.  311, 


2134 


THE  LAW  OF  DEEDS.  [CIIAP.  XXXI. 


and  his  rights  and  obHgations  are  the  same  as  they  would 
be  if  the  land  had  been  transferred  to  him  by  the  debtor.^ 
But  then  the  person  procuring  another  to  purchase  land  must 
have  either  an  equitable  or  legal  interest  in  it,  to  cause  an 
agreement  by  the  purchaser  to  convey  upon  being  reimbursed, 
to  constitute  the  transaction  a  mortgage.  When  there  is 
no  such  interest,  the  transaction  well  be  regarded  as  a  mere 
contract  of  sale."  Where  a  mortgagor  after  the  expiration 
of  the  statutory  time  was  allowed  to  redeem,  another  person 
advancing  the  money,  and  the  mortgagee  executed  a  quitclaim 
conveyance  to  the  mortgagor,  and  the  later  executed  an  ab- 
solute deed  to  the  person  advancing  the  money,  and  received 
Ijack  a  written  agreement  giving  a  certain  time  to  redeem  on 
payment  of  the  money  advanced,  the  conveyance  in  equity 
was  deemed  a  mortgage.' 

§  1125.  Agreement  to  reconvey  showing  absolute  sale. 
—In  the  majority  of  cases,  the  agreement  for  repurchase 
does  not  attempt  to  define  the  transaction  either  as  a  con- 

1  Hidden  V.  Jordan,  21   Cal.  92;  Co.    v.    Austin,    42    Pa.    St.    257; 

Stroncr  V    Shea,  83  111.  575;  Smith  Robertson  v.  IMohni  Milburn-Stod- 

V.  Kn'oebel,  82  111.  392;   Brumfield  dard  Co.,  106  Iowa,  414,  76  N.  W. 

V.  Boutall,  24  Hun,  451;  BarneU  v.  736. 

Nelson,  46  Iowa,  495;  Hardin  v.  » Turner  v.  Wilkinson,  72  Ala. 
Eames,  5  Bradw.  (111.)  153;  San  361.  When  land  is  conveyed  by 
JoDe  Safe  Deposit  Bank  of  Savings  absolute  deed  to  secure  a  loan,  and 
V.  Bank  of  Madera,  121  Cal.  539,  a  contract  entered  into  between  the 
54  Pac.  83.  Id.  121  Cal.  539,  54  parties  that  the  property  shall  be 
Pac.  270;  Clark  v.  Seagraves,  186  re-conveyed  on  payment  of  the 
Mass.  430,  71  N.  E.  813.  And  loan,  the  entire  legal  title  vests  in 
where  the'  grantee  advances  only  the  grantee  and  no  action  is  re- 
part  of  the  purchase  money,  he  has  quired  on  his  part  to  devest  the 
a  lien  upon  the  whole  land,  and  not  grantor  of  his  equitable  right  to 
merely  upon  a  proportionate  un-  redeem:  Fitch  v.  Miller,  200  111. 
divided  interest:  Hidden  v.  Jor-  170,  65  N.  E.  650;  Malone  v.  Roy, 
(Ian    sutra  1^4  Cal.  344,  66  Pac.  313;  Pitts  v. 

a'caprezv.   Trover,  96  111.  456;  Mixer,   115  Ga.  281,  41  S.  E.  570; 

McClintock       v.       McClintock,       3  Johnson  v.  Property  Loan  &  Bldg. 

Brewst.   76.     See   Penn.   Life   Ins.  Ass'n,  94  IlL  App.  260;  Barlow  v. 


CHAP.  XXXI.]  DEED  WHEN   A   MORTGAGE.  21 3."^ 

ditional  sale  or  a  mortgage.  A  statement  in  the  agreement 
for  a  conveyance  that  it  is  not  to  be  construed  so  as  to  make 
the  transaction  a  mortgage,  is  not  conclusive  on  the  court. 
But  where  the  contract  for  repurchase  shows  upon  its  face 
that  the  parties  actually  intended  to  make  an  absolute  sale, 
giving  the  vendor  an  option  to  repurchase,  it  will  be  so  con- 
strued when  its  provisions  and  the  idea  that  a  mortgage 
was  intended  are  inconsistent.*  A  recital  in  an  absolute  deed 
that  it  was  executed  to  secure  a  loan  of  money,  shows  that 
the  deed  upon  its  face  is  a  mortgage.*^  If  the  instrument, 
however,  contains  a  declaration  that  it  is  a  conditional  deed 
and  not  a  mortgage,  and  that  it  is  to  be  absolute  if  the  sum 
specified  is  not  paid  at  the  time  limited,  it  is  held  that  it  is 
to  be  construed  as  a  conditional  deed  and  not  a  mortgage.' 
Where  the  grantor  claims  after  the  transaction  had  been 
consummated,  that  it  was  a  mortgage,  while  in  fact  it  was  a 
sale,  a  bill  in  equity  may  be  maintained  by  the  grantee  to  have 
it  adjudged  a  sale.'     The  right  to  redeem  from  a  mortgage 

Cooper,  109  111.  App.  375;  Keeline  6  Burnside  v.  Terry,  45  Ga.  621. 

V.  Clark,  132  Iowa,  360,  106  N.  W.  The  terms  of  an  agreement  may  be 

257  so  convincing  that  the  transaction 

*Hanford  V.  Blessing,  89  111.  188;  was  a  sale,  that  while  not  con- 
Smith  V.  Crosby,  47  Wis.  160;  elusive,  very  little  additional  evi- 
Vance  v.  Anderson.  113  Cal.  532,  dence  to  this  effect  may  lead  to  that 
45  Pac.  816;  Woods  v.  Jansen,  130  conclusion:  Hanford  v.  Blessing, 
Cal.  200,  62  Pac.  473.  80  111.  188.    Effect  should  be  given 

5  Montgomery     v.     Chadwick,     7  to    an    express    provision    that    an 

Iowa,  114;  Grogan  v.  Valley  Trad-  agreement  for  reconveyance  should 

ing  Co.,  30  Mont.  229,  76  Pac.  211;  be  deemed  only  a  contract  to  re- 

Ackemian  v.  Bergrisch,  50  Atl.  673 ;  convey,  and  not  as  an  acknowledg- 

Posten  V.  Jones,  122  N,  C.  536,  29  ment  that  the  deed  was  intended  as 

S.    E.   951;    Watkins   v.    Williams,  a  mortgage,  if  consistent  with  the 

123  N.  C.  170,  31  S.  E.  388 ;  Weise-  whole  transaction :     Ford  v.  Irwin, 

ham  V.  Hocker,  7  Okl.  250,  54  Pac.  18  Cal.  117.     See  Hickox  v.  Lowe, 

464  •  Security  Savings  &  Trust  Co.  10    Cal.    197 ;    Bishop    v.    Williams, 

V.  Loewenberg,  38  Or.  159,  62  Pac.  18  111.  101 ;  Snyder  v.  Griswold,  Zl 

647;    Brickie   v.   Brickie,   55   S.   C.  HI-  216. 

510  33  S.  E.  720;  Sellers  v.  Sellers,  'Rich  v.  Doane,  35  Vt.  125;  Gus- 

53  S   W   316l  sert  v.  Bogk,  7  Mont.  585,  1  L.R.A. 


2136 


THE  LAW  OF  DEEDS. 


[chap.  XXXI. 


exists  until  it  has  been  taken  away  by  foreclosure,  but  in  the 
case  of  a  conditional  sale,  the  contract  of  the  parties  will  be 
enforced,  and  there  can  be  no  redemption  after  the  day  fixed 
for  payment.^    A  deed  was  executed,  and  the  grantee  agreed 


240,    19    Pac.    Rep.    281;    Kahn   v. 
Weil,  42  Fed.  Rep.  704;   Manasse 
V.  Dinkelspiel,  68  Cal.  404,  9  Pac. 
457.     Where  the  original   grantees 
in  a  deed  reconvey  to  the  original 
grantors  by  a  deed  reciting  that  it 
was  intended  to  secure  the  payment 
of  money  to  the  grantors,  the  gran- 
tees still  retain  the  legal  title  and 
the    instrument    in    legal    effect    is 
only  a  mortgage  creating  a  lien  re- 
quiring judicial  performance  for  its 
enforcement.      If    the   parties   have 
considered    such    conveyance    as    a 
mortgage  such  construction  may  be 
considered  for  the  purpose  of  re- 
moving any  doubt  that  may  exist 
as  to  the  nature  of  the  transaction: 
Adams  v.  Hopkins,  144  Cal.  19,  11 
Pac.  712.     The  parties  may  agree 
for  the  conveyance  of   land   at  an 
agreed  price  with  the  right  to  re- 
purchase at  a  higher  price  and  such 
an  agreement  is  valid  and  may  be 
enforced:     McElmworay    v.    Blod- 
gett,  120  Ga.  9,  47  S.  E.  531.    If  as 
a  part  of   a  transaction  by  which 
land  is  conveyed  the  grantee  leases 
the  premises  to  the  grantor,  giving 
him   the  privilege  of   repurchasing 
the     property     conveyed     for     an 
amount    equal    to   the   sum   loaned 
by  the  grantee  to  the  grantor  with 
added   interest,  the   only  title  pos- 
sessed by  the  grantee  is  that  of  a 
mortgagee:     Sowles    v.    Butler,    71 
Vt.  271,  44  Atl.  355.     A  sale  and 
not  a  mortgage  results  where  gran- 
tee gives  to  the  grantor  a  contract 
allowing    the    grantor   three   years 


in  which  to  redeem  the  land :  Mar- 
tin V.  Allen,  67  Kan.  758.  74  Pac. 
249.  See  as  to  other  cases  where 
deeds  have  been  made  with  the 
right  on  the  pftrt  of  the  grantor  to 
redeem  or  repurchase:  Felton  v. 
Grier,  109  Ga.  320,  35  S.  E.  175; 
Davies  v.  Kendall,  50  La.  Ann.  1121, 
24  So.  264;  Harper  v.  Citizens' 
Bank  etc.,  51  La.  Ann.  511,  25  So. 
446 ;  Clark  v.  Landon,  90  Mich.  83 ; 
Brown  v.  Bank  of  Sumpter,  55  S. 
C.  51,  32  S.  E.  816;  Wiggins  v. 
Wiggins,  16  Tex.  Civ.  App.  335, 
40  S.  W.  643;  Kirby  v.  Nat.  Loan 
etc.  Co.,  22  Tex.  Civ.  App.  257,  54 
S.  W.  1081;  Reed  v.  Parker,  33 
Wash.  107,  74  Pac.  61. 

8  People  V.  Irwin,  14  Cal.  428; 
Henley  v.  Hotaling,  41  Cal.  22; 
Cornell  v.  Hall,  22  Mich.  377;  Joy 
v.  Birch,  4  Clark  &  F.  57;  Ens- 
worth  V.  Griffiths.  1  Brown  Pari, 
C.  149;  Pegg  v.  Wisden,  16  Beav. 
239 ;  Perry  v.  Meddowcrof t,  4  Beav. 
197;  Barren  v.  Sabine,  1  Vem.  268; 
Holmes  v.  Grant,  8  Paige,  243; 
Glover  v.  Payn,  19  Wend.  518; 
Brown  v.  Dewey,  2  Barb.  28;  Han- 
ford  V.  Blessing,  80  111.  188;  Pitts 
v.  Cable,  44  111.  103;  Dwen  v.  Blake, 
44  111.  135 ;  Shays  v.  Norton,  48  111. 
100;  Carr  v.  Rising,  62  111.  14; 
Haines  v.  Thomson,  70  Pa.  St.  434; 
Rich  V.  Doane,  35  Vt.  125;  Trucks 
v.  Lindsay,  18  Iowa,  504;  Merritt 
v.  Brown,  19  N.  J.  Eq.  287;  Ran- 
some  V.  Frayser,  10  Leigh,  592; 
Moss  V.  Green,  10  Leigh,  251,  34 
Am.    Dec.    731;    Schreiber    v.    Le 


CHAP.  XXXI.]  DEED   WHEN    A   MORTGAGE. 


2137 


in  writing  to  pay  certain  debts  of  the  grantor,  and  the  grantor 
was  to  repay  the  amount  in  a  specified  time,  with  interest, 
and  upon  repayment,  the  grantee  was  to  reconvey  to  the  grant- 
or. The  transaction,  the  court  held,  constituted  a  conditional 
sale  and  not  a  mortgage.' 


§  1126.  Agreement  that  grantee  may  sell. — Where  the 
agreement  authorizes  the  grantee  to  sell  the  property  and 
apply  the  proceeds  toward  the  payment  of  the  sum  he  has 
advanced,  paying  the  residue,  if  any,  to  the  grantor,  the 
transaction  is  a  mortgage.^  But  the  grantee  has  the  power 
to  convey  the  estate  free  from  the  encumbrance.^     A  con- 


Clair,  66  Wis.  579,  29  N.  W.  Rep. 
570,  899.  The  privilege  to  repur- 
chase may  be  a  personal  one,-  which 
cannot  be  enforced  in  case  of  the 
death  of  the  grantor:  Newton  v. 
Newton,  11  R.  I.  390,  23  Am.  Rep. 
476. 

9  Hays  V.  Carr,  83  Ind.  275. 

1  Eaton  V.  Whiting,  3  Pick.  484; 
Kidd  V.  Teeple,  22  Cal.  255;  Ogden 
<.  Grant,  6  Dana,  473;  Hagthorp 
V.  Hook,  1  Gill  &  J.  270;  Crane  v. 
Buchanan,  29  Ind.  570;  Lawrence 
V.  Farmers'  Loan  and  Trust  Co., 
13  N.  Y.  200;  Ruflfners  v.  Putney, 
12  Gratt.  541;  Gillis  v.  Martin,  2 
Dev.  Eq.  470,  25  Am.  Dec.  729. 
Sanborn  v.  Magee,  79  Iowa,  501,  44 
N.  W.  720 ;  Trimble  v.  McCormick, 
15  S.  W.  358,  12  Ky.  L.  Rep.  857; 
Jones  V.  Blake,  33  Minn.  362,  23 
N.  W.  538;  Tower  v.  Fatz,  26  Neb. 
706,  42  N.  W.  884,  18  Am.  St.  Rep. 
795 ;  Hyndman  v.  Hyndman,  19  Vt. 
9,  46  Am.  Dec.  171;  Alexander  v. 
Rodriguez,  12  Wall.  323,  20  L.  ed. 
406,  129  N.  Y.  223,  29  N.  E.  297; 
Clark  V.  Haney,  62  Tex.  511,  50 
Am.  Rep.  536.     In  Kedd  v.  Teeple, 


22  Cal.  255,  the  instrument  granted, 
bargained,  and  sold  a  water  ditch, 
authorized  the  grantees  to  cellect 
the  issue  and  profits,  and,  in  case 
payment  was  not  made,  to  sell  the 
property.  The  court  held  it  consti- 
tuted a  mortgage. 

2  Eaton  V.  Whiting,  3  Pick.  484. 
In  that  case,  Parker,  C.  J.,  deliver- 
ing the  opinion  of  the  court,  says 
(p.  491)  :  "An  instrument  of  con- 
veyance, therefore,  which  appears 
on  the  face  of  it,  or  by  contempo- 
raneous instruments,  to  be  intended 
as  security  for  the  payment  of  a 
debt  or  the  performance  of  other 
conditions,  does  not  lose  this  char- 
acter while  the  estate  remains  in 
the  hands  of  the  grantee,  although 
he  may  have  power  to  convey  the 
estate  free  from  such  encumbrance. 
A  power  to  sell,  executed  to  one 
who  relies  upon  such  power,  and 
expects  and  intends  to  purchase  an 
absolute  estate,  will,  without  doubt, 
pass  an  unconditional  estate  to  the 
purchaser,  though  this  form  of  con- 
veyance is  rare  in  this  country. 
But  while  the  power  remains   un- 


2138  THE  LAW  OF  DEEDS.  [CHAP.  XXXl. 

ditional  sale  is  not  converted  into  a  mortgage  by  an  agree- 
ment on  the  part  of  the  grantor,  who  is  a  joint  tenant, 
not  to  make  partition  without  the  grantee's  advice  and  con- 
sent.^ Nor  does  an  agreement  permitting  the  grantor,  within 
a  specified  time,  to  sell  the  property  for  a  larger  sum  than 
he  received,  by  paying  to  the  grantee  the  amount  mentioned  as 
the  consideration  in  the  deed,  make  the  instrument  a  mort- 
gage.* 

§  1127.  Surplus  after  sale. — When  a  deed  absolute  on 
its  face  is  intended  as  a  mortgage,  it  will  be  treated  as 
such  in  all  its  aspects,  and,  if  the  property  is  sold,  the  sur- 
plus remaining  after  the  payment  of  the  debt  may  be  re- 
covered by  the  mortgagor.'  Thus,  a  corporation  advanced 
the  sum  of  seven  hundred  dollars  to.  A,  for  the  redemption 
of  a  piece  of  real  estate  for  the  benefit  of  the  owner's  child- 
ren, the  property  being  subject  to  a  deed  of  trust  to  secure 
a  debt.  Tlie  property  was  thereafter  conveyed  to  A  for  the 
expressed  consideration  of  seven  hundred  dollars,  he  agree- 
ing, in  case  the  property  should  be  sold  for  more  than  the 
loan  and  other  necessary  expenses  incurred,  to  pay  the  surplus 

executed,  the  relation  of  mortgagor  *  Stratton  v.  Sabin,  9  Ohio,  28,  34 
and  mortgagee  subsists,  if  that  was  Am.  Dec.  418. 
the  relation  created  by  the  instru-  ^  Bettis  v.  Townsend,  61  Cal.  333. 
ment  separate  from  the  power ;  but.  And  see,  also,  Hunt  v.  Middles- 
even  under  such  a  power,  it  has  worth,  44  Mich.  448,  where  a  judg- 
been  held  in  England  that  if  the  ment  had  been  recovered  in  an- 
purchaser  knows  the  original  na-  other  State  for  the  surplus,  and 
tare  of  the  transaction,  and  appears  suit  was  afterward  brought  on  this 
not  to  have  purchased  wholly  with-  judgment  in  the  State  in  which  the 
out  reference  to  the  conditional  deed  was  executed.  In  the  suit 
character  of  the  title,  he  will  be  based  on  the  judgment,  the  offer 
compelled  in  equity  to  surrender  it  of  the  grantee  in  the  deed  to  show 
on  receiving  the  money  he  has  ad-  how  the  property  was  paid  for 
vanced :  See  Croft  v.  Powel,  2  when  first  conveyed,  was  held  to 
Com.  Rep.  607."  be    immaterial    by    reason    of    the 

3  Cotterell  v.   Purchase,  For.  61;  judgment. 
Cas.  t.  Talb.  61. 


CHAP.  XXXI.]  DEED   WHEN   A   MORTGAGE.  2139 

to  the  children  of  the  owner.  A  subsequently  sold  the  land 
for  the  sum  of  twelve  hundred  dollars.  The  court  held  that 
the  transaction  constituted  a  mortgage,  and  that  an  action 
could  properly  be  brought  in  the  names  of  the  beneficiaries 
of  the  trust  to  recover  the  difference.^  A  mortgagee  in  pos- 
session, under  a  deed  absolute  in  form,  is,  in  case  he  sells 
the  mortgaged  premises,  compelled  to  acount  for  the  amount 
which  he  received,  though  he  may  be  able  to  show,  by  the 
opinion  of  competent  judges,  that  the  sum  for  which  the 
property  was  sold  exceeds  its  market  value.'  Where  a  mort- 
gagee takes  a  conveyance  of  the  mortgaged  premises,  and  in 
•  a  collateral  agreement  in  writing  covenants  that  if  he  shall 
sell  the  premises  for  more  than  the  amount  of  the  mortgage 
he  will  pay  over  the  surplus  to  the  mortgagor  and  then  after- 
ward the  mortgagee  in  possession  makes  improvements  with 
the  knowledge  of  the  mortgagor  and  after  the  death  of  the 
mortgagee  the  property  is  sold  for  an  amount  equal  to  the 
value  of  the  property  plus  the  improvements,  the  mortgagor 
is  not  entitled  to  any  of  the  proceeds  of  the  sale.' 

§  1128.  Agreement  that  grantee  may  buy. — An  agree- 
ment executed  by  the  grantee  contemporaneously  with  the 
execution  of  a  deed,  and  as  part  of  the  transaction,  by  which 
he  binds  himself  to  account  to  the  grantor  for  a  portion  of 
the  profits  which  may  be  realized  by  him  on  a  resale  of  the 
property,  and  by  which  he  is  to  sell  if  a  specified  price  can  be 
secured,  is  not  inconsistent  with  the  vesting  of  the  title.^    A 

^  Bettis    V.    Townsend,    61    Cal.  was  no   condition   attached   to   the 

333;  Robinson  v.  Gassoway,  39  So.  grant    upon   which    it   was   to   be- 

1023.  come  void,  and  the  property  revert 

'  Budd  V.   Van  Orden,  33   N.  J.  to    the    grantor.      The    agreement 

Eq.  143.  clearly  shows  that  the  title  was  to 

8  Hoerr's  Estate,  20  Pa.  Super.  pass  to  Porter,  that  he  should  have 
Ct.  425.  power  of   disposition   over   it,   and 

9  Macauley  v.  Porter,  71  N.  Y.  that  all  he  undertook  to  do  was 
173.  Rapallo,  J.,  delivering  the  to  account  to  his  grantor  for  one- 
opinion  of  the  court,  said:  "There  half  of  the  profits  which  might  be 


2140  THE  LAW  OF  DEEDS.  [CHAP.  XXXI. 

grantor  conveyed  land  by  an  absolute  deed,  and  the  grantee 
on  the  same  day  executed  a  covenant,  in  which  he  recited 
that  the  conveyance  was  made  for  the  purpose  of  paying  a 
specified  sum  of  money,  and  he  covenanted  that  he  would 
not  convey  the  premises  within  one  year  without  the  consent 
of  the  grantor,  and  that,  if  the  grantor  should  find  a  pur- 
chaser within  that  time,  he  would,  on  receiving  the  amount 
with  interest  for  which  the  land  had  been  conveyed  to  him, 
convey  to  such  purchaser;  the  covenant  further  provided 
that  in  case  such  sale  should  not  be  made  within  the  year,  it 
should  then  be  submitted  to  certain  persons  named  to  decide 
what  additional  amount  should  be  paid  by  the  grantee  for 
the  land,  which  sum  he  covenanted  to  pay;  the  transaction 
was  held  not  to  be  a  mortgage,  and  the  grantee  was  held 
entitled  to  recover  the  land  in  ejectment.*  Where  a  convey- 
ance is  made  for  the  purpose  of  securing  future  loans,  and 
there  is  an  oral  agreement  to  convey  on  reimbursement,  the 
deed  will  be  held  to  be  a  mortgage.^ 

§  1129.  Where  no  note  is  given. — It  is  not  necessary 
for  the  creation  of  a  mortgage  that  there  should  be  a  note 
or  any  evidence  of  indebtedness.  The  rule  is  sometimes 
stated  that  every  mortgage  implies  a  loan,  and  every  loan 
implies  a  debt.'     The  circumstance  that  there  is  no  agree- 

realized  by  him  on  a  resale,  if  in  the  grantor.  It  was  to  remain 
made  within  the  year,  and  that  he  in  the  grantee,  or  the  person  to 
would  not  sell  within  the  year  for  whom  he  should  convey  in  pursu- 
less  than  four  thousand  dollars  ance  of  the  covenant." 
without  the  consent  of  Miss  Tracy.  2  Madigan  v.  Mead,  31  Minn.  94. 
Such  an  agreement  is  not  incon-  3  Wright  v.  Bates,  13  Vt.  341; 
sistent  with  the  vesting  of  the  title  Flagg  v.  Mann,  14  Pick.  467;  Mur- 
in  him,  and  to  record  such  a  deed  phy  v.  Galley,  1  Allen,  107;  Davis 
and  agreement  as  a  mortgage  v.  Stonstreet,  4  Ind.  101.  Mr.  Jus- 
would  have  been  clearly  improper."  tice  Wells,  in  Campbell  v.  Dear- 
1  Baker  v.  Thrasher,  4  Denio,  493.  born,  109  Mass.  130,  12  Am.  Rep. 
The  court  said:  "There  was  no  con-  671,  says,  on  page  144:  "When  it  is 
dition  or  agreement  under  which  considered  that  the  inquiry  itself 
the  title  could  ever  become  revested  is   supposed  to  be  made  necessary 


CHAP.  XXXI.]  DEED   WHEN   A   MORTGAGE.  2141 

nient  for  the  payment  of  the  debt  may  be  of  considerable 
importance  as  tending  to  show  the  nonexistence  of  the  rela- 
tion of  debtor  and  creditor,  and  that  the  conveyance  was  not 
intended  as  a  mortgage.*  But  it  is  not  conclusive;  attention 
should  be  paid  to  the  absence  of  a  collateral  undertaking  as  a 
circumstance  only,  from  which  the  intention  of  the  parties  to 
make  a  mortgage  or  a  sale  with  a  contract  for  repurchase 
may  be  ascertained.^ 

§  1130.  Quitclaim  deed. — Where  the  real  intent  is  to 
secure  a  person  for  a  debt  due  to  him  from  the  owner  of 
land,  and  to  give  him  the  means  of  making  a  more  rapid 
disposition  of  the  property  for  the  satisfaction  of  the  debt, 
the  nature  of  the  deed  that  is  executed  is  immaterial.  A 
quitclaim  deed  in  such  a  case  cannot  be  considered  as  a  final 
surrender  of  all  the  interest  of  the  grantor.^  But  a  quitclaim 
deed  conveys  the  legal  title,  and  though  it  may  have  been  in- 

by  the  adoption  of  forms  and  out-  129;  Fisk  v.  Stewart,  24  Minn.. 97; 

ward  appearance  differing  from  the  Montgomery  v.  Spect,  55  Cal.  352. 

reality,  it  is  hardly  reasonable  that  *  Conway  v.  Alexander,  7  Cranch, 

the  absence  of  an  actual  debt  mani-  218   3  L.  ed.  321;  Bacon  v.  Brown 

fested    by    a    written    acknowledg-  19  Conn^^34;  Horn  v.  Keteltas,  46 

X     „.,  N.  Y.  60o;  Tarvis  v.  Woodruff,  22 

ment  or  an  express  promise  to  pay  r.o    id        c  ^J       -d     *  n   o/i 

,    ,           ,  Conn.  548;  Brumfield  v.  Boutall,  24 

should  be  regarded  as  of  more  sig-  - 

,         ,       ,               r      r  Hun,  451. 

nificance  than  the  absence  of  a  for-  5  Murphy  v.  Caley,  1  Allen,  107; 

mal    defeasance.     ...    A    mort-  p^.^^  ^   Sheldon,  13  Mass.  443,  448, 

gage  may  exist  without  any  debt  or  7  ^^   j^^^   ^^2 ;  Flagg  v.  Mann,  14 

other  personal  liability  of  the  mort-  pj^j,_    4^7 .     grown    v.    Dewey,    1 

gagor.     If  there  is  a  large  margin  g^j^^j  ^^j^    55.   g^ant  v.  Robertson, 

between  the  debt  or  sum  advanced  jg  ^q    i29;   Rice  v.  Rice,  4  Pick, 

and  of  the  value  of  the  land  con-  349;  Kelly  v.  Beers,  12  Mass.  387. 

veyed,   that   of    itself    is   an   assur-  6  Curtiss    v.    Sheldon,    47    Mich, 

ance  of  payment  stronger  than  any  262;    Huston   v.   Canfield,   57    Neb. 

promise  or  bond  of   a   necessitous  345,  77  N.  W.  763 ;  Canfield  v.  Hus- 

borrower  or  debtor."     See,  also,  to  ton,  Id. ;  Babcock  v.  Wells,  25  R.  I. 

the  effect  that  no  written  evidence  23,  54  Atl.  596,  105  Am.   St.  Rep. 

is  necessary:   Wing  v.   Cooper,  37  848.     And  sec  Bearss  v.  Ford.  108 

Vt.  169;  Brant  v.  Robertson,  16  Mo.  Hk   16. 


2142 


THE  LAW  OF  DEEDS. 


[chap.  XXXI. 


tended  as  a  mortgage,  a  bona  Me  purchaser,  without  notice 
from  the  grantee,  will  take  the  title  free  from  equities.'' 

§  1131.  Continued  possession  of  grantor. — The  grant- 
or's continuance  in  possession  is  a  circumstance  tending  to 
show  that  the  transaction  is  a  mortgage.'  "If  the  vendor 
remains  in  the  possession  of  the  property  after  the  alleged 
sale,  this  is  a  circumstance  that  tends  to  show  that  it  was 
not  really  a  sale,  but  a  mortgage,  for  such  continuing  pos- 
session in  the  vendor,  after  a  sale,  if  not  inconsistent  with 
a  sale,  is  an  unusual  accompaniment  of  it."  ^  A  grantee,  on 
the  same  day  that  a  conveyance  absolute  on  its  face  was  made 


■^  Brophy  Mining  Co.  v.  Brophy  & 
Dale  etc.  Mining  Co,  15  Neb.  101. 

•Hoffman   v.   Ryan,   21    W.    Va. 
415;  Davis  v.  Deming,  12  W.  Va. 
246;    Lawrence   v.   Dubois,    16  W. 
Va.  443;  Kerr  v.  Hill,  27  W.  Va. 
576;  Matheney  v.  Sandford,  26  W. 
Va.   386;   Gilchrist  v.   Beswick,   33 
W.  Va.  168,  10  S.  E.  371 ;  Van  Gil- 
der   V.    Hoffman,    22    W.    Va.    1 
Ruffier   V.    Womack.   30   Tex.    332 
Crews  V.  Threadgill,  35  Ala.  334 
Thompson    v.    Banks,    2    Md.    Ch 
430;  Wright  v.  Bates,  13  Vt.  341 
Edwards  v.  Hall,  79  Va.  321. 

8  Davis  V.  Demming,  12  W.  Va. 
246,  282,  per  Green,  J.  In  Streator 
V.  Jones,  3  Hawks,  423,  Hall,  J., 
said  (p.  438)  :  "I  have  said  that 
the  evidence  in  this  case  convinces 
me  that  the  deed  in  question  should 
be  considered  as  a  mortgage,  be- 
cause I  think  it  was  understood  by 
the  parties  that  the  land  was  re- 
deemable ;  and  I  have  come  to  this 
conclusion  from  the  evidence  given 
in  the  case.  Although  the  evidence 
proving  directly  the  declaration  of 
Jones  is  not  much  to  be  relied  upon, 


yet  it  is  corroborative  of  other  evi- 
dence as  to  the  value  of  the  land, 
the  possession  kept  afterward  by 
Streator,  and  the  rent  charged,  etc., 
as  well  as  the  needy  situation  of 
Streator."  In  the  same  case  Hen- 
derson, J.,  said,  on  page  445 :  "The 
resales,  particularly  when  made  im- 
mediately after  the  execution  of  the 
title  deeds,  should  be  strictly  scruti- 
nized. .  .  .  The  object  of  the 
bargain  was  not  to  acquire  the 
property,  but  to  make  a  profit  of 
money ;  not  fhat  a  person  may  not 
use  his  money  to  his  profit  and  its 
increase,  by  buying  and  selling,  but 
it  must  be  a  real  sale  and  transfer 
of  right,  which  from  their  very  na- 
ture is  not  to  be  presumed.  For 
why  should  a  person  really  and 
bona  Ude  purchase  the  property, 
and  in  a  moment  after,  without 
any  cause  and  before  that  foible  of 
our  nature,  proneness  to  change, 
could  exert  its  influence,  part  with 
it  again?  It  is  said  the  motive 
was  to  make  money.  It  is  admitted 
and  was  so  understood  before  the 
contract    was    closed,    and    formed 


CHAP.  XXXI.]  DEED   WHEN   A   MORTGAGE. 


2143 


to  him,  executed  ....a  delivered  to  the  grantor  an  agreement 
for  reconveyance  on  payment  of  a  given  sum  within  a  Hmited 
time;  the  grantor  remained  in  the  possession  and  use  of  the 
land  as  before;  these  facts  were  held  to  show  that  the  deed 
was  intended  only  as  a  security  for  the  payment  of  a  debt.^ 

§  1132.  Payment  of  Interest. — If,  by  the  contract  or 
understanding  between  the  parties,  interest  is  to  be  paid, 
it  is  a  circumstance  tending  to  show  the  existence  of  a  debt, 
and  that  the  transaction  is  a  mortgage  and  not  a  conditional 
sale.^     It  may  happen  that  what  is  really  the  payment  of  in- 


part  of  it;  and  it  is  true  that  there 
may  be,  upon  principle,  a  sale  made 
under  such  circumstances,  but  I 
have  never  known  one,  and  they  are 
so  rare  that  I  have  never  known  a 
person    who   had." 

1  Clark  V.  Finlon,  90  111.  245; 
Ransone  v.  Frayser,  10  Leigh,  592; 
Gibson  v.  Eller,  13  Ind.  124;  Lin- 
coln v.  Wright,  4  DeGex  &  J.  16; 
Ruffier  V.  Womack,  30  Tex.  332; 
Campbell  v.  Dearborn,  109  Mass. 
130,  12  Am.  Rep.  671;  Steel  v. 
Black,  3  Jones  Eq.  427;  Dauben- 
speck  v.  Piatt,  22  Cal.  330;  Strong 
v.  Shea,  83  111.  575;  Thompson  v. 
Banks,  2  Md.  Ch.  430;  Sellers  v. 
Stalcup,  7  Ired.  Eq.  13;  Kemp  v. 
Earp,  7  Ired.  Eq.  167.  In  Law- 
rence V.  Dubois,  16  W.  Va.  443,  461, 
the  court  said:  "Another  strong 
circumstance  is  that  the  vendor  re- 
mains in  the  possession  of  the  prop- 
erty long  after  the  alleged  sale  and 
payment  therefor."  In  Kemp  v. 
Earp,  7  Ired.  Eq.  167,  the  court 
said  (p.  171)  :  "The  plaintiff  held 
possession  for  the  balance  of  the 
year  1845,  during  the  year  1846,  and 
until  August,  1847,  without  paying 
rent.      It  is  not  suggested  that  by 


the  terms  of  the  sale  she  was  en- 
titled to  remain  on  the  land  rent 
free.  This  is  inconsistent  with  the 
fact  of  an  absolute  sale,  and  can 
only  be  accounted  for  on  the 
ground  of  a  mortgage."  Where  a 
person,  who  afterward  died,  gave 
an  absolute  deed  to  a  creditor,  but 
remained  in  possession  of  the  land, 
it  was  held,  in  a  contest  between 
the  other  creditors  and  the  widow 
of  the  deceased,  that  parol  evidence 
might  be  admitted  to  show  that  the 
conveyance  was  only  a  mortgage : 
Carter  v.   Hallahan,  61   Ga.  314. 

2  Montgomery  v.  Spect,  55  Cal. 
352;  Murphy  v.  Calley,  1  Allen, 
107;  Farmer  v.  Grose,  42  Cal.  169; 
Harbison  v.  Houghton,  41  111.  522; 
Honore  v.  Hutchings,  8  Bush,  687. 
In  Montgomery  v.  Spect,  55  Cal. 
352,  the  court  said:  "But,  although 
there  was  no  personal  obligation 
on  the  part  of  Spect  to  pay  the 
seven  thousand  dollars  with  inter- 
est, there  is  one  circumstance  which 
tends  to  raise  a  presumption  of 
loan,  or  indebtedness,  and  that  is 
that  the  sum  to  be  paid  by  Spect, 
in  case  he  desired  a  reconveyance, 
was  the  precise  amount  expressed 


2144 


THE  LAW  OF  DEEDS. 


[chap.  XXXL 


terest  may  be  made  to  assume  the  appearance  of  the  payment 
of  rent.  Thus,  a  deed  was  executed,  and  the  grantor  after- 
ward took  a  lease  of  the  premises  from  the  grantee,  and  the 
grantee  covenanted  to  reconvey  to  the  grantor  on  the  pay- 
ment of  a  sum  of  money  within  a  time  specified;  it  was  held 
that  although  the  lease  and  covenant  gave  the  transaction 
the  appearance  of  a  conditional  sale,  still  the  relation  of  mort- 
gagor and  mortgagee  existed.'  A  conveyance  of  land  in  fee 
and  a  bond  to  reconvey  upon  payment  of  the  consideration, 
and  to  permit  the  obligee  meanwhile  to  occupy  the  premises, 
at  a  rent  equal  to  interest  on  that  sum,  constitute  a  mortgage.* 
A  grantor  took  back  a  lease  by  which  he  was  entitled  to  the 
possession  of  the  land  conveyed  by  the  payment  of  a  monthly 
rent,  and  which  gave  him  the  privilege  of  repurchasing  at 


as  the  consideration  in  the  deed, 
with  interest  at  one  and  one-fourth 
per  cent  per  month."  In  Murphy 
V.  Galley,  1  Allen,  107,  a  deed  of 
land  absolute  in  form,  and  an 
agreement  under  seal,  executed  by 
the  grantee  at  the  same  time, 
covenanting  to  reconvey,  if  within  a 
specified  time  the  grantor  should 
repay  the  sum  paid  for  the  con- 
veyance with  interest,  and  provid- 
ing that  if  the  grantor  did  not  re- 
pay that  sum  with  interest  the 
agreement  should  be  void  and  the 
deed  absolute,  with  no  further 
right  of  redemption,  were  held  to 
constitute  a  mortgage.  The  court 
remarked  that  the  agreement  to 
reconvey  on  the  repayment  of  a 
certain  sum,  with  lawful  interest 
thereon,  showed  that  money  was 
advanced  to  the  grantor  at  the  time 
of  making  the  deed  as  part  of  the 
same  transaction.  It  also  said  with 
reference  to  the  objection  that 
there  was  no  collateral  undertaking 


by  the  plaintiff  to  pay  the  money, 
and  hence  no  mutuality  existed, 
that  this  was  by  no  means  conclu- 
sive of  the  nature  of  the  transac- 
tion ;  that  it  was  only  one  circum- 
stance to  be  considered. 

3  Wright  V.  Bates,  13  Vt.  341; 
Preschbaker  v.  Freman,  32  111.  475; 
Ewart  V.  Walling,  42  111.  453.  In 
Wright  V.  Bates,  supra,  it  is  said 
(p.  350)  :  "Bates  intended  to  hold 
a  security  for  the  money  which  he 
had  loaned,  and  yet  cut  off  the 
equity  of  redemption,  an  intention 
which  a  court  of  chancery  will  de- 
feat. In  no  sense  can  we  regard 
the  lease  in  connection  with  the 
facts  proved  as  a  conditional  sale. 
.  .  .  The  law  does  not  permit 
the  mortgagor  to  be  tolled  of  his 
equity  of  redemption  by  such  a 
shift." 

*  Woodward  v.  Pickett,  8  Gray, 
617. 


CHAP.  XXXI.]  DEED   WHEN  A  MORTGAGE. 


2145 


any  time  within  the  expiration  of  twelve  months  by  repay- 
ing the  amount  received  as  consideration  for  the  deed.  He 
remained  in  possession  for  eleven  years,  and  his  payments  of 
rents  during  that  time  amounted  to  more  than  the  sum  that 
he  received;  the  transaction  was  held  to  be  a  mortgage,  and 
the  debt  was  held  to  be  discharged  by  the  payments.* 

§  1133.  Inadequacy  of  price. — The  fact  that  there  is 
great  inadequacy  between  the  sum  received  by  the  grantee 
and  the  real  value  of  the  land  will  not  of  itself  authorize  a 
court  to  permit  a  redemption.  But  it  is  a  circumstance  which 
is  entitled  to  weight  as  tending  to  show  that  the  transaction 
was  not  really  a  sale,  but  in  fact  a  mortgage.^  Different 
persons  may  place  different  values  upon  the  same  piece  of 
property,  and  hence  inadequacy  of  price  must  be  gross  to  be 


^Boatright  v.  Pick,  33  Tex.  68, 
75. 

•  Montgomery  v.  Spect,  55  Cal. 
352;  Htisheon  v.  Husheon,  71  Cal. 
407;  Thornborough  v.  Baker,  3 
Swanst.  628,  631 ;  Bridges  v.  Lin- 
der,  60  Iowa,  190;  Langton  v.  Hor- 
ton,  5  Beav.  9;  Wharf  v.  Howell,  5 
Binn.  499;  Davis  v.  Thomas,  1 
Russ.  &  M.  506;  Williams  v. 
Owens,  5  Mylne  &  C.  303;  Free- 
man V.  Wilson,  51  Miss.  329;  Doug- 
lass V.  Culverwell,  3  Giff.  251 ;  Da- 
vis V.  Stonestreet,  4  Ind.  101 ; 
Pearson  v.  Seay,  35  Ala.  612;  Wil- 
son V.  Patrick,  34  Iowa,  362; 
Trucks  V.  Lindsey,  18  Iowa,  504; 
Overton  v.  Bigelow,  3  Yerg.  513; 
Lawrence  v.  DuBois,  16  W.  Va. 
443 ;  Davis  v.  Demming,  12  W.  Va. 
246;  Matthews  v.  Porter,  16  Fla. 
466,  487 ;  West  v.  Hendrix,  28  Ala. 
226;  Gibbs  v.  Penny,  43  Tex.  560; 
Thompson  v.  Banks,  2  Md.  Ch. 
430;  Pierce  v.  Traver,  13  Nev.  526; 
Deeds,  Vol.  II.— 135 


Peagler  v.  Stabler,  91  Ala.  308,  9 
So.  Rep.  157 ;  Vincent  v.  Walker,  86 
Ala.  333,  5  So.  Rep.  465;  Crews 
V.  Threadgill,  35  Ala.  334;  Turner 
V.  Wilkinson,  72  Ala.  361;  Rodg- 
ers  V.  Moore,  88  Ga.  88,  13  S.  E. 
Rep.  962;  Helm  v.  Boyd,  124  III. 
370,  16  N.  E.  Rep.  85 ;  Klein  v.  Mc- 
Namara,  54  Miss.  90;  Gossum  v. 
Gossum  (Ky,  Mch.  24,  1891),  15 
S.  W.  Rep.  1057;  Turpie  v.  Lowe, 
114  Ind.  Zl,  15  N.  E.  Rep.  834; 
Helm  V.  Boyd,  124  111.  370,  16  N.  E. 
Rep.  85 ;  Walker  v.  Farmers'  Bank, 
14  Atl.  Rep.  819  (Del.,  June  21, 
1888).  See  Ferris  v.  Wilcox,  51 
Mich.  105,  47  Am.  Rep.  551 ;  Rubo 
V.  Bennett,  85  111.  App.  473;  Bigler 
V.  Jack,  114  Iowa,  667,  87  N.  W. 
700;  Lewis  v.  Wells,  85  Fed.  896; 
Bonnette  v.  Wise,  111  La.  855,  35 
So.  953 ;  Forester  v.  Van  Auken,  12 
N.  D.  175,  96  N.  W.  301;  Shiver 
V  Arthur,  54  S.  C.  184,  32  S.  E. 
310. 


2146  THE  LAW  OF  DEEDS.  [CHAP.  XXXL 

a  controlling  fact  in  determining  the  character  of  the  trans- 
action.' A  lender  does  not  usually  advance  an  amount  equal 
to  the  full  value  of  the  land,  and,  accordingly,  the  fact  that 
the  consideration  paid  is  all  that  the  land  is  worth  is  evidence 
of  some  weight  to  show  that  the  transaction  was  a  sale  and 
not  a  mortgage.®  But  the  fact  that  the  consideration  ex- 
pressed in  the  deed  is  somewhat  greater  than  was  actually 
paid  by  the  grantee  is  not  entitled  to  weight  in  determining 
whether  the  deed  should  be  treated  as  a  mortgage  or  not, 
when  the  instrument  was  made  and  the  consideration  written 
in  it  under  the  grantor's  direction,  and  without  the  knowledge 
or  assent  of  the  grantee.' 

§  1134.  Character  of  transaction  fixed  in  beginning. — 
Where  the  transaction  was  in  the  beginning  a  contract  of 
mortgage,  it  will  continue  to  possess  this  character;  if  it  was 
originally  a  conditional  sale,  it  will  not  be  changed  into  a 
mortgage  by  lapse  of  time.  If  a  conveyance  is  intended  to 
be  a  sale  with  a  right  to  repurchase,  it  is  not  made  a  mortgage 
by  recording  it  as  such.^  Where  it  is  in  the  beginning  a  sale, 
absolute  or  conditional,  no  event  occurring  afterward,  ex- 
cept a  new  agreement  between  the  parties,  can  turn  it  into  a^ 
mortgage.^     Nor  will  the  acts  and  declarations  of  a  party' 

'Elliott  V.  Maxwell,  7  Ired.  Eq.  Payn,  19  Wend.  518;  Pitts  v.  Cable, 

246.  44   111.   103;   West   v.   Hendrix,  28 

sCarr  v.   Rising,   62   111.    14,    19.  Ala.  226;   French  v.   Sturdivant,  8 

Inadequacy    of    price    is    not    con-  Me.  246. 

elusive.     Adequacy  of  price  in  con-  Text    Gal.    369. 

nection  with  the  fact  that  no  note  ^  Stewart's    Appeal,    98    Pa.    St 

is  given  is  not  conclusive  that  the  377. 

transaction   is    a    conditional    sale :  ^  Morrison  v.  Brand,  5  Daly,  40. 

Brown  v.  Dewey,  2  Barb.  28 ;  s.  c,  ^  Kearney  v.   McComb,   16  N.  J. 

1  Sand.  Ch.  56.    Where  no  debt  or  Eq.  189;  Reed  v.  Reed,  75  Me.  264; 

loan   is   created,  but   only   a   right  Buse  v.  Page,  32  Minn.  Ill,  19  N. 

to  repurchase  exists,  it  is  immate-  W.   Rep.   736,  20   N.   W.  Rep.   95; 

rial  whether  the  sum  paid  for  the  Kleinschmidt     v.     Kleinschmidt,    9 

deed  or  a  greater  sum  is  to  be  paid  Mont.  477,  24  Pac.  Rep.  266;  Finck 

for     a     reconveyance:     Glover    v.  v.  Adams,  36  N.  J.  Eq.  188;  Davis 


CHAP.  XXXI.]  DEED   WHEN   A   MORTGAGE. 


2147 


change  its  character.  These  are  nothing  more  than  admis- 
sions, which  are  admissible  in  evidence  for  what  they  are 
worth.'  The  same  considerations  apply  to  the  assignment 
of  a  mortgage,  *  or  a  lease,  ^  where  there  is  an  agreement  to 
reassign  within  a  limited  time.  A  conveyance  made  upon  trust 
may  be  declared  a  mortgage  rather  than  a  trust.^  It  requires 
a  subsequent  agreement  to  change  the  character  of  a  mortgage, 
taken  in  the  beginning  as  such ;  but  its  character  cannot  be 
changed  to  the  detriment  of  intervening  interests.'  A  pur- 
chaser who  has  knowledge  that  the  grantor  claims  an  in- 
terest in  the  property  takes  a  conveyance  of  it  charged  with 
the  equities  attached  to  it  in  the  hands  of  the  mortgagee.' 


V.  Brewster,  59  Tex.  93;  Clark  v. 
Henry,  2  Cow.  324 ;  Gray  v.  Shelby, 
83  Tex.  405,  18  S.  W.  Rep.  809; 
McCauley  v.  Smith,  132  N.  Y.  524, 
30  N.  E.  997;  Gassert  v.  Bogk,  7 
Mont.  585,  1  L.R.A.  240,  19  Pac. 
Rep.  281 ;  Devore  v.  Woodruff,  1 
N.  Dak.  143,  45  N.  W.  Rep.  701; 
Swetland  v.  Swetland,  3  Mich.  482 ; 
Sadler  v.  Taylor,  49  W.  Va.  104, 
38  S.  R  583;  Herrich  v.  Teachout, 
74  Vt.    196,   52   Atl.  432. 

'See  Holmes  v.  Fresh,  9  Mo. 
201 ;  Thomaston  Bank  v.  Stimpson, 
21  Me.  195 ;  Nichols  v.  Reynolds,  1 
R.  I.  30,  36  Am.  Dec.  238.  But  very 
slight  circumstances  may  turn  the 
scale,  where  the  evidence  is  not 
clear  whether  the  transaction  was 
a  sale  or  a  mortgage:  McKinney  v. 
Miller,  19  Mich.  142;  Waite  v. 
Dimick,  10  Allen,  364;  Hickox  v. 
Lowe,  10  Cal.  197. 

*  Henry  v.  Davis,  7  Johns.  Ch. 
40;  Pond  v.  Eddy,  113  Mass.  149; 
Briggs  V.  Rice,  130  Mass.  50. 

6  Polhemus  v.  Trainer,  30  Cal. 
685.  See  Goodman  v.  Grierson,  2 
Ball  &  B.  274,  278;  Halo  v.  Schick, 


57  Pa.  St.  319.  See  Smith  v.  Cre- 
mer,  71  111.  185,  as  to  contract  of 
purchase. 

SBromfield  v.  Boutall,  24  Hun, 
451.  See,  also,  Taylor  v.  Cornelius, 
60  Pa.  St.  187;  Koch  v.  Briggs,  14 
Cal.  256,  IZ  Am.  Dec.  651;  Vance 
V.  Lincoln,  38  Cal.  586;  Comstock 
V.  Stewart,  Walk.  Ch.  110;  Mc- 
Menomy  v.  Murray,  3  Johns.  Ch. 
435;  Charles  v.  Claggett,  3  Md.  82; 
Marvin  v.  Titsworth,  10  Wis.  320; 
Prick's  Appeal,  87  Pa.  St.  327; 
Holmes  v.  Matthews,  3  Eq.  Rep. 
450;  Jenkin  v.  Row,  5  De  Gex  &  S. 
107;  Bell  v.  Carter,  17  Beav.  11; 
Chambers  v.  Goldwin,  5  Ves.  834; 
Myers'  Appeal,  42  Pa.   St.  518. 

^EllioW  V.  Wood,  53  Barb.  285; 
Cooper  V.  Whitney,  3  Hill.  95; 
Tibbs  V.  Morris,  44  Barb.  138; 
Bunacleugh  v.  Poolman,  3  Daly, 
236;  Clark  v.  Henry,  2  Cowen,  324; 
Parsons  v.  Munford,  3  Barb.  Ch. 
152;  Williams  v.  Thorn,  11  Paige, 
459;  Palmer  v.  Gurnsey,  7  Wend. 
248;  Marks  v.  Pell,  1  Johns.  Ch. 
594. 

8  French  v.  Burns,  35  Conn.  359; 


2148  THE  LAW  OF  DEEDS.  [CHAP.  XXXI. 

§  1135.     Sale  and  resale.— Attention  has  already  been 
called   to   the   fact   that  there   may  be  a   sale   of   property, 
and  an  agreement  for  a  resale,  without  the  transaction  par- 
taking of   the  nature  of  a  mortgage.     As  an  allustration 
of  this  principle,  a  case  occurred  in  New  York  which  is  cited 
specially,   because   it  had   in   it   some  of   the   incidents   that 
might  indicate  that  the  deed  should  be  treated  as  a  mortgage. 
A  held  the  bond  of  B  secured  by  a  mortgage  upon  a  number 
of  lots.     B  executed  a  deed  to  A  of  a  number  of  lots,  some 
of  which  were  included  in  the  mortgage,  and  the  consideration 
expressed  in  the  deed  was  approximately  the  amount  due  at 
the  time  on  the  mortgage,  the  deed  being  recorded  on  the  day 
that  the  mortgage  was  satisfied  of  record.     A  agreed  to  give 
to  B,  by  an  instrument  acknowledged  on  the  day  that  the 
deed  was  recorded,  the  privilege  of  repurchasing,  if  he  should, 
before  the  expiration  of  a  specified  time,  pay  to  A  a  sum 
of  money  corresponding  in  amount  to  the  sum  due  upon  the 
bond  and  mortgage,  with  interest  compounded  semi-annually, 
but  no  reference  was  made  to  the  mortgage,  or  to  any  in- 
debtedness, nor  did  B  make  any  agreement  to  pay  the  amount 
specified,  or  to  purchase  the  property,  and  the  value  of  the 
property  was  not  in  excess  of  the  consideration  expressed  in 
the  deed.     C  subsequently,  by  assignment  from  B,  succeeded 
to  the  latter's  rights  under  the  agreement,  and  to  his  interest 
in  the  property.     The  court  held  that  the  deed  was  not  in- 
tended as  security  merely,  but  that  it  was  given  and  received 
in  satisfaction  of  the  prior  indebtedness,  and  hence  that  it 
was   an  absolute  conveyance,   with  a   right  to   repurchase.' 

Radford  v.  Folsom,  58  Iowa,  473.  is    executed:    Pciigh    v.    Davis,    96 

A    mortgagor    may    release    subse-  U.  S.  332. 

quently    an    equity    of    redemption,  » Randall    v.    Sanders,    87    N.    Y. 

but  it  must  be   done   upon  a   fair  578,  23  Hun,  611.     See  also  Hayes 

consideration.    His  right  of  redem-  v.  Emerson,  75  Ark.  551,  87  S.  W. 

tion  cannot  be  waived  by  any  stip-  1027.     And  see  Adams  v.  Adams, 

ulation  made  at  the  time  the  deed  51  Cui.a,  544. 


CHAP.  XXXI.]  DEED  WHEN   A   MORTGAGE. 


2149 


§  1136.  Parol  evidence. — At  law  parol  evidence,  show- 
ing that  an  absolute  deed  was  intended  as  a  mortgage,  is, 
it  is  generally  admitted,  inadmissible.*  The  question  whether 
a  deed  absolute  upon  its  face  was  intended  as  a  mortgage,  is 
one  over  which  courts  of  equity  have  exclusive  jurisdiction.^ 
In  England,  it  is  held  that  equity  will  construe  an  absolute 
deed  to  be  a  mortgage,  when,  through  fraud  or  accident, 
the  defeasance  has  been  omitted,  ^  or  when  there  really  is  a 
separate  defeasance,  though  not  reduced  to  writing ;  *  or  when, 
by  the  acts  of  the  parties,  it  is  apparent  that  the  conveyance 
was  intended  as  a  mortgage.^  This  evidence  was  admitted 
in  the  earliest  cases  upon  the  sole  grounds  of  fraud,  accident, 
or  mistake,  and  this  is  now  the  ground  upon  which  the  juris- 
diction in  some  States  is  placed.  But  the  general  rule  now 
prevailing  in  this  country  is,  that  parol  evidence  is  admissible 
to  show  a  deed  to  be  in  fact  a  mortgage,  aside  from  any  ques- 
tion of  fraud  or  mistake.®    As  the  grounds  upon  which  courts 


1  Benton  v.  Jones,  8  Conn.  186; 
Bryant  v.  Crosby,  36  Me.  562,  58 
Am.  Dec.  767 ;  Hogel  v.  Lindell,  10 
Mo.  483 ;  Stinchfield  v.  Milliken,  71 
Me.  567,  570;  Reading  v.  Weston,  8 
Conn.  117,  20  Am.  Dec.  97;  Bragg 
V.  Massie,  38  Ala.  89,  79  Am.  Dec. 
82;  Farley  v.  Goocher,  11  Iowa, 
570;  Webb  v.  Rice,  6  Hill,  219; 
McClane  v.  White,  5  Minn.  178; 
Moore  v.  Wade,  8  Kan.  380 ;  Belote 
V.  Morrison,  8  Minn.  87.  But  see 
27  Cyc.  1021 ;  Pearson  v.  Daney,  144 
Ala.  427,  39  So.  474;  Bernhard  v. 
Bruner,  65  111.  App.  641;  Oberdor- 
f  er  V.  White,  25  Ky.  Law  Rep.  1629, 
78  S.  W.  436.  It  is  admissible  in  Illi- 
nois, both  at  law  and  in  equity; 
Tillson  V.  Moulton,  23  111.  648; 
Miller  v.  Thomas,  J4  111.  428; 
Coates  V.  Woodworth,  13  111.  654. 
And  in  California  such  testimony 
is  admissible  at  law  as  well  as  in 


equity :  Jackson  v.  Lodge,  36  Cal. 
28;  Vance  v.  Lincoln,  38  Cal.  586; 
Cunningham  v.  Hawkins,  27  Cal. 
604. 

2  Foley  V.  Kirk,  33  N.  J.  Eq.  170 ; 
Stinchfield  v.  Milliken,  71  Me.  567. 

'  England  v.  Codrington,  1  Eden, 
169;  Lincoln  v.  Wright,  4  De  Gex 
&  J.  16;  Maxwell  v.  Montacute, 
Free.  Ch.  526. 

^Manlove  v.  Bale,  2  Vern.  84; 
Whitfield  V.  Parfitt,  15  Jur.  852; 
Farmers  &  Mechanics  Bank  v. 
Smith,  61  App.  Div.  315,  70  N.  Y. 
S.  536. 

^Cripps  V.  Jee,  4  Bro.  C.  C.  472; 
Allenby  v.  Dalton,  5  Law  J.  K.  B. 
312. 

6  Russell  V.  Southard,  12  How. 
139,  13  L.  ed.  927;  Peugh  v.  Davis, 
96  U.  S.  332,  24  L.  ed.  775; 
Heughes  v.  Edwards,  9  Wheat.  489, 
6  L.  ed.  142;  Gay  v.  Hamilton,  33 


2150 


THE  LAW  OF  DEEDS. 


[chap.  XXXI. 


of   equity  receive  parol   evidence  are  wliolly   equitable,   the 
plaintiff  must  have  equitable  grounds  to  entitle  him  to  relief^ 

§  1137.  Declarations  of  party  as  evidence. — In  a  suit 
brought  for  the  purpose  of  detennining  whether  a  deed  ab- 
solute in  form  was  intended  as  a  mortgage,  the  declarations 
made  after  the  execution  of  the  deed  by  a  party  to  the  deed 
and  to  the  suit,  may  be  received  in  evidence  as  against  him- 
self." Where,  at  the  time  of  the  execution  of  a  deed  absolute 
on  its  face,  the  grantor  was  informed  that  it  conveyed  away 
all  his  property,  evidence  vague  and  uncertain  as  to  admis- 
sions of  the  grantee,  that  the  grantor  had  a  right  to  re- 
deem, and  the  fact  that  the  grantor  retained  possession  of 
the  land  for  some  time  after  the  deed  was  executed,  and  that 
the  price  paid   was  somewhat  less  than   what  the  property 


Cal.    686;    Campbell    v.    Dearborn, 
109  Mass.  130,   12  Am.  Rep.  671 
Huoncker  v.   Merkey,   102  Pa.   St 
462;  Newton  v.  Fay,  10  Allen,  505 
Hartley's  Appeal,   103   Pa.   St.  23 
King  V.  Warrington,  2  N.   M.  Ty 
318;  Vance  v.  Lincoln,  38  Cal.  586 
McDonough   v.    Squire,   111    Mass 
217;  Raynor  v.  Lyons,  37  Cal.  452 
Such    evidence    is    introduced     to 
show  the  real  intention  of  the  par- 
ties.    Mr.  Jones  in  his  treatise  on 
Mortgages,    reviews    the    cases    in 
the  different  States  at  length,  point- 
ing out  the  particular  grounds  upon 
which  in  each  State  the  jurisdiction 
is    founded:    Vol.    I,    §§    285-321. 
See,  also,  27  Cyc.  1021  for  a  review 
of  the  cases  of  the  several  States. 
Sadler  v.  Taylor    49  W.  Va.   104, 
38  S.   E.   583;   Philips   v.   Mo.,  91 
Minn.  311,  97  N.  W.  969;  Glass  v. 
Hieronymus.  125  Ala.  140,  82  Am. 
St.  Rep.  225,  28  So.  71;  Northern 


Assurance  Co.  v.  Chicago  Mut 
Bldg.  &  Loan  Ass'n,  98  111.  App. 
152,  affirmed  198  111.  474,  64  N.  E. 
979;  Schmitt  v.  Merriman,  109  111. 
App.  433;  ^tna  Ins.  Co.  v.  Jacob- 
son,  105  111.  App.  283;  Stitt  v.  Rat 
Portage  Lumber  Co.,  96  Minn.  27, 
104  N.  W.  561 ;  Culp  v.  Woten,  79 
Miss.  503,  31  So.  1;  Cobb  v.  Day, 
106  Mo.  278,  17  S.  W.  323;  Weise- 
ham  V.  Hocker,  7  Okla.  250,  54  Pac, 
464;  Meyer  v.  Davenport  Elevator 
Co.,  12  S.  D.  172,  80  N.  W.  189; 
Shank  V.  Groff,  43  W.  Va.  337,  27 
S.  E.  340;  Brown  v.  Johnson,  115 
Wis.  430,  91   N.  W.   1016. 

■^Hassam  v.  Barrett,  115  Mass. 
256;  Arnold  v.  Mattison,  3  Rich. 
Eq.  153.  See  Baldwin  v.  Caw- 
thorne,   19  Ves.   166. 

•Ross  V.  Brusie,  64  Cal.  245; 
Adams  v.  Hopkins,  144  Cal.  19. 
11  Pac.  712;  Hopper  v.  Smyser, 
90  Md.  363,  45  Atl.  206. 


Chap.  XXXI.]        deed  when  a  mortgage.  2151 

was  really  worth,  do  not  make  the  deed  a  mortgage.^  The 
conduct  of  the  parties  subsequently  to  as  well  as  at  the  time 
of  the  transaction  may  be  shown,  although  the  evidence  to 
establish  that  the  deed  was  intended  as  a  mortgage  must  be 
clear  and  convincing.* 

§  1138.  Effect  of  delay  in  seeking  relief. — Where  such 
facts  exist  as  make  the  transaction  a  mortgage,  the  mort- 
gagor has  the  same  time  to  discharge  his  debt  as  he  would 
have  if  he  had  executed  a  mortgage  instead  of  a  deed;  hence 
delay  in  claiming  the  deed  to  be  a  mortgage  has  not  the 
effect  given  to  it  when  the  enforcement  of  executory  contracts 
is  sought  in  equity.^  Some  weight  may  be  given  to  delay 
as  bearing  upon  the  question  of  whether  the  instrument  was 
intended  as  a  mortgage  or  not.  But  the  tardiness  of  the 
grantor  may  be  explained,  and  no  lapse  of  time  unless  the 
action  is  barred  by  the  statute  of  limitations,  will  be  sufficient 
to  exclude  the  introduction  of  parol  evidence  to  show  that 
the  conveyance  was  intended  as  a  mortgage.^  But  where 
there  is  other  evidence  to  show  that  there  was  a  sale,  lapse 
of  time  is  a  circumstance  to  be  considered.*  A  grantor  is 
estopped  to  claim  that  a  deed  was  a  mortgage,  where  the 
grantee  takes  possession,  and  with  the  knowledge  of  the  grant- 
or sells  the  property.* 

9  Edwards   v.   Wall,   79  Va.   321.  the  grantor  for  an  requity  of  re- 

1  Bartling  v.  Brasuhn,  102  111.  441.  demption,  and  no  sufficient  excuse 

2  Odenbaugh  v.  Bradford,  67  Pa.  for  the   delay  was  given,  that  the 
St.  96.  laches    was    such    as    to    bar    any 

3  Anding  v.  Davis,  38  Miss.  574,  claim  to  relief :  Maher  v.  Farwell, 
11  Am.  Dec.  658.  ^^  IH.  56;  De  France  v.  DeFrance, 

*  Full  V.   Owen,  4  Younge  &  C.  34  Pa.   St.  385 ;   Conner  v.   Chase, 

192.     It  was  held  in  a  case  where  15  Vt.   764. 

the   bill    to    redeem    was    not    filed  5  Woodworth      v.      Carman,      43 

until  thirteen  years  after  the  execu-  Iowa,  504.     A  mortgagor  abandon- 

tion   of    the   deed,   and   more   than  ing   his    right    to   redeem    from   an 

seven  years  after  the  grantee  had  absolute    conveyance,    is   bound    by 

refused  to  recognize  the  claim  of  his   election:   Hancock  v.   Harper, 


2152  THE  LAW  OF  DEEDS.  [CHAP.  XXXI. 

§  1139.  Judgment  creditor  may  show  that  debtor's 
deed  is  a  mortgage. — Where  a  creditor  has  obtained  a 
judgment,  and,  at  a  sale  under  execution  issued  upon  it, 
has  purchased  his  debtor's  land,  he  is  permitted  to  show 
that  a  deed  made  by  his  debtor  was  really  a  mortgage.  He  is 
subrogated  to  the  rights  of  the  debtor,  and  is  entitled  to  a 
reconveyance  upon  paying  the  sum  due  upon  the  mortgage.' 
And,  without  being  an  execution  purchaser,  he  may  show 
that  the  deed  is  really  a  mortgage.''  A  grantee's  creditor, 
however,  when  a  deed  is  in  fact  a  mortgage,  can  obtain  only 
a  defeasible  title  by  a  sale  on  execution.  He  does  not  take 
a  better  title  than  that  held  by  the  judgment  debtor.'  The 
right  to  treat  a  deed  intended  as  a  mortgage  as  such  is  mutual 
and  the  grantee  cannot  be  compelled  by  other  creditors  of 
the  grantor  to  treat  it  as  a  deed  in  the  absence  of  circum- 
stances creating  an  estoppel,  or  where  it  would  be  unjust  to 
subsequent  judgment  creditors,  who  though  not  answering 
in  the  action  are  treated  by  all  as  actually  pursuing  their 
remedies.* 

§  1140.  Sheriff's  deed. — A  deed  made  by  a  sheriff  and 
absolute   on   its   face   may  be   shown   by   parol  evidence   to 

86   111.    445,    Cottrell    v.    Purchase,  cree:  Winston's  Appeal,  97  Pa.  St. 

Cases    t.    Talbot,    61;    Maxfield    v.  385. 

Patchen,  29  111.  39,  42;   Carpenter,  « Clark  v.   Condit,   18   N.  J.   Eq. 

70   111.   457.     If    a   party   claiming  358;  Judge  v.  Reese,  24  N.  J.  Eq. 

that  a  deed  is  a  mortgage  obtains  ^87;    Van    Buren    v.    Olmstead,    5 

a  decree  entitling  him  to  a  recon-  ^^'^e,  9.     See  Gulley  v.   Macy,  84 

veyance  on  the  payment  of  a  speci-  •      ;        • 

^    ,  J    r  M      i  -J  '^  Allen   V.    Kemp,   29  Iowa,   452; 

fied    sum,    and    fails    to    pay    said  /'  '  ' 

De  Wolf  V.  Strader,  26  111.  225,  79 

Am.  Dec.  371 ;  Dwen  v.  Blake,  44 

.      ,  111.   135;  Bennett  v.  Wolverton,  24 

can  order,  on  a  petition  in  the  na-  ^^^^    284.     A  judgment  becomes  a 

ture  of  a  supplementary  bill  to  en-  ,j^^  ^p^^^  ^j^^  ^^^j^^  ^^  redemption: 

force  the  decree,  that  the  amount  Christie  v.  Hale,  46  111.  117. 

of  rent  in  the  hands  of  the  lessee  of  s  Leech  v.  Hillsman,  8  Lea,  747. 

the  property  be  paid  to  the  grantee,  9  Andrus  v.  Burke,  61  N.  J.  Eq. 

to  be  applied  on  the  original  de-  297,  48  AtL  228. 


sum,    although    the    conveyance    is 
executed    and    tendered,   the   court 


CHAP.  XXXI.]  DEED   WHEN   A   MORTGAGE.  2153 

have  been  intended  as  security  for  the  paymeni  oi  money. 
The  rule  is  as  appHcable  to  deeds  of  this  kind  as  to  deeds 
between  private  parties.^  Thus,  in  the  case  cited,  the  bidder 
at  a  sheriff's  sale  borrowed  money  from  another  with  which 
to  pay  the  bid,  and  it  was  then  agreed  that,  as  security  for 
the  loan,  the  deeds  of  the  sheriff  should  be  made  directly 
to  the  person  advancing  the  money  until  it  was  repaid.  The 
grantee  in  the  sheriff's  deeds  subsequently  claimed  the  legal 
title  in  his  own  interest,  and  the  bidder  at  the  sale,  having 
tendered  to  the  grantee  the  full  amount  of  the  loan  and  in- 
terest, obtained  a  decree  declaring  the  deeds  executed  by  the 
sheriff  to  be  mortgages,  and  ordering  the  legal  title  to  be 
conveyed  upon  payment  of  the  money  secured.^ 

§  1141.  Absolute  owner  as  to  third  parties. — As  to 
third  persons,  the  grantee  of  the  legal  title  is  considered 
the  legal  owner.'  Therefore,  if  an  absolute  conveyance  is 
made  as  security  for  a  loan,  a  purchaser  from  the  grantee, 
without  notice  of  the  deed  being  intended  as  a  mortgage, 
obtains  a  title  to  which  the  equity  of  the  grantor  does  not 
attach.*     But  a   purchaser   who  has  notice  acquires   a  de- 

iLogue's  Appeal,  104  Pa.  St.  136.  70  III.  416;  Gaines  v.  Brockerhoff, 

See  contra   Stephenson  v.  Thomp-  136  Pa.  St.  175,  19  Atl.  958;  Thack- 

son,  13  111.  186;  Foster  v.  Rice,  101  er  v.  Morris,  43  S.  E.  141,  94  Am. 

N.  W.  771,  126  Iowa,  190;  McElroy  St.  Rep.  928.  " 

V.  Allfree,  131  Iowa,  112,  108  N.  W.  3  oigby    v.    Jones,    67    Mo.    104; 

116,  117  Am.  St.  Rep.  412;  Philips  Fiedler   v.    Darrin,    59   Barb.    651; 

V.  Mo.,  91  Minn.  311,  97  N.  W.  966;  McCarthy   v.    McCarthy,   36   Conn. 

Dickson  v.   Steward,  71   Neb.  424,  177;  Jenkins  v.  Rosenberg,  105  111. 

98  N.  W.   1085,   115  Am.  St.  Rep.  157;  Pico  v.  Gallardo,  52  Cal.  206; 

596.  Thaxton   v.   Roberts,   66   Ga.    704; 

2  Logue's  Appeal,  104  Pa.  St.  136.  Groton  Savings  Bank  v.  Batty,  30 

And   see   Beatty   v.    Brummett,   94  N.  J.  Eq.  126;  Luesenhof  v.  Eins- 

Ind.  75;   Hoile  v.  Bailey,  58  Wis.  feld,   93   App.    Div.    68,   87    N.    Y. 

434;   San  Jose  Safe  Deposit  Bank  268,  reversed  184  N.  Y.  590,  77  N. 

of  Savings  v.  Bank  of  Madera,  121  E.    1191. 

Cal.  539,  54  Pac.  83;  Id.,  121  Cal.  *  Pico  v.   Gallardo,  52  Cal.  206; 

539,  54  Pac.  270;  Klock  v.  Walter,  Frink  v.  Adams,  36  N.  J.  Eq.  485. 


2154  THE  LAW  OF  DEEDS.  [CHAP.  XXXI. 

feasible  title;'  and  when  no  valuable  consideration  has  been 
paid,  the  purchaser's  position  is  no  better  than  that  of  his 
grantor,®  Where  a  purchaser  has  knowledge  or  notice  of 
the  true  state  of  the  title,  his  deed  is  only  an  assignment  of 
the  grantee's  interest  in  the  property.'  If  a  grantee,  under  an 
absolute  deed,  agrees  to  reconvey  on  the  performance  by  the 
grantor  of  certain  conditions  within  a  specified  time,  and  if 
after  the  expiration  of  such  time,  the  grantee  conveys  to  an- 
other who  had  no  actual  knowledge  of  such  agreement,  and 
who  makes  costly  improvements,  the  grantor  in  the  first  deed 
knowing  of  this  sale,  but  not  disclosing  his  interest,  and 
inducing,  by  his  statements  and  conduct,  the  purchaser  to 
believe  that  he  was  purchasing  an  unincumbered  title,  the  first 
grantor,  although  the  relation  existing  between  him  and  his 
grantee  may  have  been  that  of  mortgagor  and  mortgagee, 
cannot  secure  the  aid  of  a  court  of  equity  to  enable  him  to 
redeem." 

§  1142.  Notice  in  bankruptcy  proceedings. — A  person 
who  has  proved  a  claim  against  the  estate  of  a  bankrupt, 
cannot  be  charged  with  notice  that  a  deed  executed  by  the 
bankrupt  was  intended  only  as  a  mortgage,  from  the  fact  that 
the  property  embraced  in  the  deed  was  placed  in  the  schedule 
of  assets,  for  the  person  so  proving  his  claim  was  afterward 
as  much  a  stranger  to  the  schedule  as  if  his  claim  had  never 

6Houser  v.   Lamont,   55   Pa.   St.  24  N.  J.  L.  (4  Zab.)  493;  Williams 

311,  93  Am.  Dec.  755;  Radford  v.  v.  Thorn,  11  Paige,  459.    A  grantee 

Folscm,  58  Iowa,  473 ;   Graham  v.  seeking   to    redeem    must    pay   the 

Graham,    55    Ind.    23 ;    Amory    v.  amount   due :   White   v.   Lucas,   46 

Lawrence,    3    Cliff.    523;    Smith   v.  Iowa,   319;    Cowing  v.   Rogers,  34 

Knoebel,    82    111.     392;     Kuhn    v.  Cal.   648;    Heacock   v.    Swartwout, 

Rumpp,    46    Cal.    299;     Lawrence  28   111.   291;   Westfall   v.   Westfall, 

V.    Dubois,    16   W.    Va.   443.  16  Hun,  541. 

sZane  v.   Fink,   18  W.  Va.  693;  ^  Radford    v.    Folsom,    58    Iowa, 

Lawrence   v.   Du   Bois,    16  \\'.   Va.  473. 

443.     See,  also,  Abbott  v.  Hanson,  « Tufts  v.  Tapley,  129  Mass.  380. 


CHAP.  XXXI.]  DEED   WHEN   A   MORTGAGE.  2155 

been  proved  at  all.^  Nor  would  the  presence  of  the  assignee 
and  his  attorney  at  a  meeting  of  the  bankrupt's  creditors  to 
provide  for  leasing  the  property  pending  litigation  concern- 
ing them,  no  agreement  for  leasing  having  been  executed, 
and  the  assignee  making  no  declaration  of  any  interest  in  the 
bankrupt,  be  sufficient  to  place  a  subsequent  purchaser  from 
the  grantee  of  the  bankrupt  upon  inquiry  so  as  to  charge 
him  with  notice  of  the  nature  of  the  deed.* 

§  1143.  Payment  of  debt. — A  purchaser  is  not  affected 
by  any  secret  trust  or  equity  of  which  he  had  no  notice. 
The  payment  of  the  whole  amount  due  from  the  mortgagor, 
in  a  case  where  the  mortgage  is  in  the  form  of  an  absolute 
deed,  can  have  no  effect  upon  the  title  of  a  person  claiming 
under  the  mortgagee,  who  possesses  no  notice  of  the  fact 
that  the  deed  is  in  reality  a  mortgage.' 

§  1144.  Parol  evidence  to  show  a  mortgage  a  condi- 
tional sale. — As  we  have  seen,  parol  evidence  is  admis- 
sible in  equity  to  show  that  a  deed  with  or  without  an 
agreement  to  reconvey  is  a  mortgage.  But  if  the  instrument 
shows  upon  its  face  that  it  is  a  mortgage,  parol  evidence  is 
not  received  to  show  that  the  parties  intended  to  make  a  con- 
ditional sale;  the  court  must  construe  the  instrument  without 
a  resort  to  oral  evidence.'  The  proof,  if  admitted,  would 
contradict  the  writing;  it  is  received  for  the  purpose  of  show- 
ing an  absolute  deed  to  be  a  mortgage,  to  raise  an  equity 
consistent  with  and  superior  to  the  written  conveyance.* 

9  Jenkins    v.    Rosenberg,    105    111.  corded:  Moors  v.  Albro,  129  Ma_  j. 

157.  9. 

1  Jenkins   v.   Rosenberg,    105    111.  2  Sweetzer  v.  Atterbury,  100  Pa. 

157.      An    attaching    creditor    can-  St.   18. 

not  claim  an  estoppel  in  bankruptcy  ^  Alstin  v.  CundiflF,  52  Tex.  453. 

proceedings,  because  an  agreement  *Kunkk     v.     Wolfersberger,     6 

for   defeasance   has   not   been   re-  Watts,  126;  McClintock  v.  McClin- 


2156  THE  LAW  OF  DEEDS.  [CHaP.  XXXI. 

§  1145.  Proof  of  other  conditions. — When  it  is  shown 
by  parol  testimony  that  a  deed  absohite  on  its  face  was  not 
intended  to  operate  as  such,  but  as  a  mortgage,  all  the  con- 
ditions of  the  instrument  or  transaction  may  be  proved  in  a 
similar  manner.^  Between  the  parties,  it  may  be  shown  by 
parol  testimony  that  the  mortgage  was  afterward  extended 
so  as  to  cover  new  debts.^  The  burden  of  proof  rests  upon 
him  who  alleges  that  a  deed  absolute  in  form  was  really 
intended  as  a  mortgage,  regardless  of  whether  it  is  the  grantee 
or  the  grantor.' 

§  1146.  Time  for  redemption. — On  general  principles 
the  right  to  redeem  and  the  right  to  foreclose  are  recipro- 
cal. In  a  case  in  California,  it  was  decided  that  when  the 
right  to  foreclose  is  barred  by  the  statute  of  limitations,  the 
right  to  redeem  is  also  barred.*  But  the  court  evidently  over- 
looked a  provision  of  the  code  applicable  to  the  very  ques- 
tion. The  code  provides  that  "an  action  to  redeem  a  mort- 
gage of  real  property,  with  or  without  an  account  of  rents 
and  profits,  may  be  brought  by  the  mortgagor,  or  those  claim- 

tock,  3  Brevvst.  76;  Reitenbaugh  v.  La.  Ann.  1052;  Kellogg  v.  North- 

Ludwick,    31     Pa.     St.     131,     138;  rup,  115  Mich.  327,  IZ  N.  W.  230; 

Woods  V.  Wallace,  22  Pa.  St.  171 ;  Tilden  v.  Streeter,  45  Mich.  533,  8 

Wharf  V.  Howell,  5  Binn.  499.  N.  W.  502;  Winters  v.  Earl,  62  N. 

6  Walker  v.  Walker,  17  S.  C.  329.  J.  Eq.  52,  28  All.  15;  Fullerton  v. 

« Walker  V.  Walker,  17  S.  C.  329.  McCurdy,    55    N.   Y.    637;    North- 

■"  Bryant   v.    Broadwell,    140   Cal.  western  F.   M.  Ins.   Co.  v.  Lough, 

490;  Rankin  V.  Rankin,  216  111.  132,  13    N.    D.    601,    102    N.    W.    160; 

74  N.   E.  763;  Gannon  v.  Heustis,  Haines  v.  Thomson,  70  Pa.  St.  434; 

201  111.  208,  66  N.  E.  283,  94  Am.  Todd  v.  Campbell,  32  Pa.  St.  250; 

St.    Rep.    160;    Heaton    v.    Gaines,  Glass    v.    Hieronymous,    125    Ala. 

198  111.  479,  64  N.  E.  1081;  Burgett  140,  82  Am.   St.   Rep.  225;   Miller 

V    Osborne,  172  111.  227,  50  N.  E.  v.  Price,  66  S.  C.  85,  44  S.  E.  584; 


206;  Eames  v.  Hardin,  111  111.  634 
Bentley  v.  O'Bryan,  111  111.  53 
Knowles  v.  Knowles,  86  111.  1 
Wright  V.  Wright,  98  N.  W.  137 


Miller  v.  Yturria,  69  Tex.  549,  7  S. 
W.  206;  Johnson  v.  Scrimshire,  93 
S.  W.  712;  Tridley  v.  Somerville, 
60  W.  Va.  272,  54  S.  E.  502. 


Allen  V.  Fogg,  66  Iowa,  229,  23  N.  8  Taylor  v.  McClain,  60  Cal.  651; 

W.   643;    Mulfaupt  v.   Yowsee,  35      64  Cat  513. 


CHAP.  XXXL]  deed  when   A   MORTGAGE. 


2157 


ing  under  him,  against  the  mortgagee  in  possession,  or  those 
claiming  under  him,  unless  he  or  they  have  continuously 
maintained  an  adverse  possession  of  the  mortgaged  premises 
for  five  years  after  breach  of  some  condition  of  the  mort- 
gage." ^  The  right  to  foreclose  is  barred  in  four  years.  But 
by  this  section  the  right  to  redeem  is  limited  to  five  years. 
This  section  was  not  referred  to  in  the  opinion  of  the  court, 
and  manifestly  escaped  its  attention. 

§  1147.  Presumption  in  doubtful  cases. — Where  a  per- 
son seeks  to  have  an  absolute  deed  declared  a  mortgage,  he 
should  make  strict  proof  of  the  fact.^  It  is  said,  however, 
in  many  well  considered  cases,  that  when  it  is  doubtful  whether 
a  transaction  is  a  mortgage  or  a  conditional  sale,  it  will  be 


9  Code  Civ.   Proc.  Cal.  §  346. 

1  Magnusson   v.   Johnson,   73   111. 
156;  Taintor  v.  Keyes,  43  111.  332 
Sharp  V.   Smitherman,  85  111.  153 
Edwards    v.    Wall,    79    Va.    321 
Knowles    v.    Knowles,    86    111.    1 
Smith    V.     Cremer,     71     111.     185 
Knight  V.   McCord,  63  Iowa,  429 
Price  V.  Karnes,  59  111.  276;  Dwen 
V.    Blake,   44   111.    135.      See,    also, 
Williams  v.  Stratton,  18  Miss.   (10 
Smedes  &  M.)  418;  Maher  v.  Far- 
well,  97  111.  56;  Howland  v.  Blake, 
97  U.  S.  624,  24  L.  ed.  1027;  Co- 
burn  V.  Anderson,  62  How.  Pr.  268 
Hancock    v.    Harper,    86    111.    445 
Jones   V.   Brittain,   1    Woods,   667 
Bingham  v.  Thompson,  4  Nev.  224 
Hopper  V.  Jones,  29  Cal.  18;  Con- 
well  V.  Evill,  4  Blackf.  67;   Pierce 
V.   Traver,    13   Nev.    526;   Johnson 
V.  Van  Velsor,  43  Mich.  208;  Ar- 
nold V.  Mattison,  3  Rich.  Eq.  153; 
Williams  v.  Cheatham,  19  Ark.  278; 
Butler  V.  Butler,  46  Wis.  430;  Hen- 
ley v.  Hotaling,  41  Cal.  22;  Moore 
V.  Ivey,  8  Ired.  Eq.  192;  Tilden  v. 


Streeter,  45  Mich.  533;  Franklin  v. 
Sewall,  110  La.  292,  34  So.  448; 
Johnson  v.  Scrimshire,  93  S.  W. 
712;  Hayes  v.  Emerson,  75  Ark. 
551,  87  S.  W.  1027;  Woods  v.  Jan- 
sen,  130  Cal.  200,  62  Pac.  473; 
Bryant  v.  Broadwell,  140  Cal.  490, 
74  Pac.  33 ;  Williams  v.  Williams, 
180  111.  361,  54  N.  E.  229;  Gannon 
v.  Moles,  209  111.  180,  70  N.  E.  689 ; 
Rankin  v.  Rankin,  216  111.  132,  74 
N.  E.  763,  affirming  117  111.  App. 
636;  Wright  v.  Wright,  98  N.  W. 
137;  Kellogg  v.  Northrup,  115 
Mich.  327,  73  N.  W.  230;  North- 
western Fire  etc.  Co.  v.  Lough,  13 
N.  D.  601,  102  N.  W.  160;  Miller 
v.  Price,  66  S.  C.  85,  44  S.  E.  584; 
Fridley  v.  Somerville,  60  W.  Va. 
272,  54  S.  E.  502;  Jones  v.  Ken- 
nedy, 138  Ala.  502,  35  So.  465; 
Betts  v.  Betts,  132  Iowa,  72,  106  N. 
W.  928;  Booh  v.  Beasley,  138  Mo. 
455,  40  S.  W.  101 ;  Bobb  v.  Wolff, 
148  Mo.  335,  49  S.  W.  996 ;  Johnson 
v.  Scrimshire,  42  Tex.  Civ.  App. 
611,  93  S.  W.  712. 


2^58  THE  LAW  OF  DEEDS.  [CHAP.  XXXII. 

treated  as  a  mortgage,  and  the  doubts  solved  in  favor  of 
allowing  the  grantor  to  redeem.^  "If,  however,  any  given 
transaction  should  turn  out,  upon  investigation,  to  be  a  con- 
ditional sale,  and  it  should  be  satisfactorily  established  to  be 
a  real  sale,  and  not  a  thin  disguise  whereby  a  loan  is  con- 
cealed, as  a  matter  of  course,  such  transaction  will  be  held 
valid  in  accordance  with  the  intention  of  the  parties.  But 
courts  of  equity  watch  transactions  of  this  sort  with  such 
zealous  and  ever  vigilant  solicitude,  that  if  the  matter  be  in 
doubt,  they  will  resolve  that  doubt  in  favor  of  the  theory  of 
a  mortgage,  and  compel  the  transaction  to  assume  and  wear 
that  hue  and  complexion."  '  The  reason  given  for  this  rule 
is  "because  in  the  case  of  a  mortgage,  the  mortgagor,  al- 
though he  has  not  strictly  complied  with  the  terms  of  the 
mortgage,  still  has  his  right  of  redemption;  while  in  the 
case  of  a  conditional  sale,  without  strict  compliance,  the  rights 
of  the  conditional  purchaser  are  forfeited."  * 

2  Trucks    V.    Lindsev,    18    Iowa,  Marsh.  J.  J.  471 ;  Skinner  v.  Miller, 

504-    Heath    v.    Williams,    30   Ind.  5  LiU.  84 ;  Bright  v.  Wagle,  3  Dana, 

495-  Klein  v.  McNamara,  54  Miss.  252;  Matthews  v.  Sheehan,  69  N.  Y. 

90-'DeBrMhl  V.  Maas,  54Tex.  464;  585;    Polndexter    v.    McCannon     1 

Ru'ssell  V.   Southard,  12  How.  139,  Dev.    Eq    377     18   Am.    Dec.    591; 

13  L    ed    927-   Pioneer  Gold  Min.  McDonald  v.   McLeod,  1  Ired.  Eq. 

Co.  V.  Baker,  10  Saw.  539,  23  Fed.  221;  Page  v.  Foster   7  N.  H.  392; 

258-   Artz  v    Grove,  21    Md.  456;  Crane  v.  Bonnell,  1  Green  Ch.  264; 

Hickox  V   Lowe,  10  Cal.  196;  Free  Holton  v.   Meighen,   15   Mmn.  69; 

V  Cobine    11  Eq.  Rep.  406;  Peugh  Cornell  v.  Hall,  22  Mich.  377.     See 

V  Davis  96  U  S.  336,  24  L.  ed.  De  Laigle  v.  Denham,  65  Ga.  482. 
776-  Conway  v.  Alexander,  7  3  O'Neill  v.  Cappelle,  62  Mo.  202, 
Cranch,  236,  3  L.  ed.  321 ;  O'Neill  207 ;  Mitchell  v.  Wellman,  80  Ala. 
v  Cappelle,  62  Mo.  202;  Brandt  v.  16;  Turner  v.  Cochran,  70  S.  W. 
Robertson,  16  Mo.  129;  Turner  v.  1024.  ^^  ^t  ^7 
Kerr,  44  Mo.  429;  Desloge  v.  Ran-  *  Matthews  v.  Sheehan,  69  N.  Y. 
ger,  7  Mo.  327 ;  Heath  v.  Williams.  590.  "In  cases  of  doubt,  however, 
38  Ind.  495;  Bacon  v.  Brown,  19  a  court  of  equity  always  leans  in 
Conn.  34;  Baugher  v.  Merryman,  favor  of  a  mortgage  rather  than  a 
32  Md  185;  King  v.  Newmann,  2  conditional  sale":  Davis  v.  Dem- 
Munf.  40;  Robertson  v.  Campbell,  ming  12  W.  Va.  246.  "The  leaning 
2  Call.  421;  Davis  v.  Demming,  12  of  courts  has  always  been  agamst 
W.  Va.  246;   Secrest  v.  Turner,  2  considering  a  conveyance  a  condi- 


Cll.xr.  XXXI. J  DEED    WHEN    A    MORTGAGE. 


2159 


§  1147a.  Trend  of  authority. — While  there  has  been  a 
wide  divergence  of  opinion  as  to  whether,  in  a  doubtful 
case,  the  court  should  presume  that  the  deed  was  intended 
to  be  absolute  or  a  mortgage,  yet  the  trend  of  authority  is  to 
the  effect  that  the  party  claiming  that  a  deed  was  intended 
as  a  mortgage  should  establish  that  fact  by  clear  and  con- 
vincing evidence,  and  slight  or  indefinite  evidence  will  not 
be  permitted  to  change  the  character  of  the  instrument  from 
what  it  appears  on  its  face  to  be,  into  a  mortgage.  It  may 
be  said  to  be  the  law,  that  the  evidence  to  show  that  a  deed 
was  intended  as  a  mortgage  should  be  satisfactory,  and  suffi- 
cient to  overcome  the  strong  presumption  created  by  the 
language  of  the  deed — that  it  is  what  it  purports  to  be,  an 
absolute  conveyance — and  where  the  evidence  is  doubtful  and 
unsatisfactory,  the  deed  must  be  held  to  be  absolute.^     This 


tional  sale ;  and  where  there  has 
been  any  doubt,  it  has  been  viewed 
as  a  mortgage,"  said  the  court  in 
Page  V.  Foeter,  7  N.  H.  392,  394. 

6  Townsend  v.  Petersen,  12  Colo. 
491 ;  Whitsett  v.  Kershow,  4  Colo. 
419;  Armor  v.  Spalding,  14  Colo. 
302;  Perot  v.  Cooper,  17  Colo.  80, 
31  Am.  St.  Rep.  258;  Bingham  v. 
Thompson,  4  Nev.  224;  Pierce  v. 
Traver,  13  Nev.  526;  Henley  v.  I  To- 
taling, 41  Cal.  22;  Mahoney  v.  Bost- 
wick,  96  Cal.  53,  31  Am.  St.  Rep. 
175 ;  Langer  v.  Merservey,  80  Iowa, 
159;  Conwell  v.  Evill,  4  Blackf.  67; 
Albany  etc.  Canal  Co.  v.  Crawford, 
11  Or.  243;  Ensminger  v.  Ensmin- 
ger,  75  Iowa,  89,  9  Am.  St.  Rep 
462;  Allen  v.  Fogg,  66  Iowa,  229 
Matthews  v.  Porter,  16  Fla.  466 
Williams  v.  Cheatham,  19  Ark.  278 
Arnold  v.  Mattison,  3  Rich.  Eq, 
153;  Knapp  v.  Bailey,  79  Me.  195, 
1  Am.  St.  Rep.  295 ;  Hyatt  v.  Coch- 
ran, 37  Iowa,  309;  Wright  v.  Ma- 


haffey,  76  Iowa,  96;  Pancake  v. 
Cauffman,  114  Pa.  St.  113;  Moore 
v.  Ivey,  8  Ired.  Eq.  192;  Glass  v. 
Hieronymus,  125  Ala.  140,  28  So. 
140,  82  Am.  St.  Rep.  225;  Case  v. 
Peters,  20  Mich.  298;  Tilden  v. 
Streeter,  45  Mich.  533;  Johnson  v. 
Van  Velsor,  43  Mich.  208;  Kibby 
V.  Harsh,  61  Iowa,  196;  Corbit  v. 
Smith,  37  Iowa,  309;  Knight  v. 
McCord,  63  Iowa,  429;  Shays  v. 
Norton,  48  111.  100;  Magnusson  v. 
Johnson,  72,  III.  156;  Helm  v.  Boyd, 
124  111.  370;  Maher  v.  Farwell,  97 
111.  56;  Price  v.  Karnes,  59  111.  276; 
Parmelee  v.  Lawrence,  44  111.  405; 
Hancock  v.  Harper,  86  111.  445 ; 
Strong  V.  Strong,  126  III.  301,  27 
111.  App.  148;  Bartling  v.  Brashun, 
102  111.  441 ;  Knowles  v.  Knowles, 
86  111.  1 ;  Workman  v.  Greening, 
145  111.  447;  Bailey  v.  Bailey,  115 
111.  551 ;  Faringer  v.  Ramsey,  2  Md. 
365;  Lance's  Appeal,  112  Pa.  St. 
456;  Nicolls  v.  McDonald,  101  Pa. 


2160 


THE  LAW  OF  DEEDS. 


[chap.  xxxn. 


principle  is  expressed  in  various  forms  by  the  courts,  but 
such  expressions  all  contain  the  idea,  that  the  mind  must  be 
thoroughly  satisfied  that  the  instrument  is  something  different 
from  what  it  purports  to  be,  before  a  court  is  justified  in  so 
declaring. 


St.  514;  Cadman  v.  Peter,  118  U. 
S.  11,  30  L.  ed.  78;  Satterfield  v. 
Malone,  35  Fed.  Rep.  445;  Wil- 
liams V.  Stratton,  18  Miss.  418; 
Adams  v.  Adams,  51  Conn.  544; 
Downing  v.  Woodstock  Iron  Co., 
93  Ala.  262;  Peagler  v.  Stabler,  91 
Ala.  308;  Rowland  v.  Blake,  97 
U.  S.  624,  24  L.  ed.  1027 ;  Edwanes 
V.  Wall,  79  Va.  321 ;  Sable  v.  Ma- 
loney,  48  Wis.  331 ;  Schriber  v.  Le 
Clair,  66  Wis.  579;  Rockwell  v. 
Humphrey,  57  Wis.  410;  Hunter  v. 
Maanum,  78  Wis.  656;  Kerr  v.  Hill, 
27  W.  Va.  576;  Hinton  v.  Pritchard, 
107  N.  C.  128,  10  L.R.A.  401 ;  Leg- 
gett  V.  Leggett,  88  N.  C  108;  Mc- 
Nair  v.  Pope,  100  N.  C.  404;  Smiley 
V.  Pearce,  98  N.  C.  185;  Mitchell 
V.  Welman,  80  Ala.  16;  Knaus  v. 
Dreher,  84  Ala.  319;  Turner  v. 
Wilkinson,  72  Ala.  361;  Parks  v. 
Parks,  66  Ala.  326;  Hartley's  Ap- 
peal, 103  Pa.  St.  23;  Stewart's  Ap. 
peal,  98  Pa.  St.  377;  Logue's  Ap- 
peal, 104  Pa.  St.  306,  49  Am.  Rep. 
508;  Haines  v.  Thompson,  70  Pa. 
St.  434;  Erwin  v.  Curtis,  43  Hun, 
292;  Shattuck  v.  Bascom,  55  Hun, 
14;  Holmes  v.  Grant,  8  Paige,  243; 
McClellan  v.  Sanford,  26  Wis.  595 ; 
Newton  v.  HoUey,  6  Wis.  592 ;  Mc- 
Cormick  v.  Ilerndon,  67  Wis.  648; 
Kent  V.  Lasley,  24  Wis.  654;  Butler 
V.  Butler,  46  Wis.  430;  Marks  v. 
Pell,  1  Johns.  Ch.  594;  Coyle  v. 
Davis,  116  U.  S.  108,  29  L.  ed.  583; 
Cobb  V.  Day,  106  Mo.  278;  Wilson- 


V.  Parshall,  129  N.  Y.  223 ;  Heaton 
V.  Gaines,  198  111.  479,  64  N.  E. 
1081;  Williams  v.  Williams,  180 
111.  361,  54  N.  E.  229;  Burgett  v 
Osborne,  172  111.  227,  50  N.  E.  206 
Eames  v.  Hardin,  111  111.  634 
Bentley  v.  O'Bryan,  111  111.  53 
Sharp  V.  Smitherman,  85  111.  153 
Mann  v.  Jobusch,  70  111.  App.  440 
The  presumption  is  that  the  instru- 
ment is  what  it  purports  on  its  face 
to  be  and  hence  a  deed  will  operate 
as  such  unless  the  evidence  proves 
it  to  be  a  mortgage :  Rogers  v. 
Beach,  115  Ind.  413,  17  N.  E.  609, 
and  to  overcome  its  apparent  effect 
the  evidence  must  be  reasonably 
clear  and  satisfactory:  Betts  v. 
Betts,  132  Iowa,  12,  106  N.  W.  928. 
Affirmative  evidence  is  required  to 
change  the  apparent  character  of  a 
deed  into  a  mortgage :  Ketts  v. 
Wilson,  130  Ind.  492,  29  N.  E.  401. 
The  evidence  to  overcome  the  pre- 
sumption should  be  unequivocal  and 
convincing:  Bobb  v.  Wolff,  148  Mo. 
335,  49  S.  W.  996.  That  the  party 
asserting  a  deed  to  be  a  mortgage 
has  the  burden  of  proof,  see,  also, 
Crowcll  V.  Keene,  159  Mass.  352, 
34  N.  E.  405 ;  Cobb  v.  Day,  106  Mo. 
278,  17  S.  W.  723 ;  Book  v.  Beasly. 
138  Mo.  455,  40  S.  W.  101 ;  Shiver 
V.  Arthur,  54  S.  C.  184,  32  S.  E. 
310;  Turner  v.  Cochran,  30  Tex. 
Civ.  App.  549,  70  S.  W.  1024. 
§  1148.    In  general. 


CHAPTER  XXXII. 

DEED  TO   ONE,   PURCHASE  MONEY  PAID  BY  ANOTHER. 


i  1149.     Legislation  as  to  resulting 
trusts. 
1149a,  Mortgage    as    a    convey- 
ance. 

1150.  Deed  to  one,  and  purchase 

money   paid   by   another. 

1151.  Some   instances. 
1151a.  Arises    by    implication    of 

law. 

1152.  Consideration  paid  by  sev- 

eral. 
1152a.  Consent   that   title   should 
be  taken  in  name  of  an- 
other. 

1153.  Deed   taken    in   the   name 

of  one  joint  purchaser. 

1154.  Interests    acquired. 

1155.  Purchase  of  specific  part. 

1156.  Deed  taken  by  agent. 

1157.  Payment    made    with    ag- 

ent's funds. 

1158.  Agent    at    execution    sale. 

1159.  Partnership    funds. 

1160.  Guardian    and    ward. 

1161.  Wife's    separate   property. 
1161a.  Protection  of  wife's  rights. 

1162.  Trust  funds  generally. 

1163.  Attorney's    knowledge    of 

defect    in    judicial    pro- 
ceedings. 

1164.  Investment  of  stolen  mon- 

ey. 

1165.  Comments. 

1166.  Surrender  of  contract  for 

purchase  of  real  estate. 
Deeds,  Vol.  H.— 136  2161 


§  1167.    Tenants  in  common, 

1168.  Deed  to  wife  or  child, 

1169.  Illustrations. 

1170.  Parol   agreement, 

1171.  Where  no  obligation  to 
provide  exists. 

1172.  Presumption   rebuttable. 

1173.  Married  woman  as  agent 
of  husband. 

1174.  Payment  of  purchase  mon- 
ey by  alien. 

1175.  Payment  when  title  passes. 

1176.  Gift  or  loan  to  cestui  que 
trust. 

1177.  Agreement  to  convey  to 
another. 

1177a.  Deed  to  assignee  for  bene- 
fit of  creditors. 

1178.  Resulting  trust  not  con- 
verted into  express  trust 
by  agreement. 

1179.  Part  payment  under  agree- 
ment to  convey, 

1180.  Advancing  portion  of 
money. 

1181.  Agreement  to  purchase  by 
two  or  more  parties. 

1182.  Parol  evidence  to  estab- 
lish trust. 

1183.  Convincing  proof  required. 

1184.  Parol  evidence  to  rebut 
resulting  trust. 

1185.  Benefit  inconsistent  with 
the  trust. 


2162  THE  LAW   OF  DEEDS.  [CHAP.  XXXH. 

§  1186.     Professional    services.  §  1189.     Deeds    without    considera- 

1187.  Conveyance   of    legal   title  tion. 

only.  1190.     Payment      for      improve- 

1188.  Laches  of  cestui  que  trust  meats. 

§  1148.  In  general.— Where  one  pays  the  purchase 
money,  but  the  title  is  taken  in  the  name  of  another,  the 
party  taking  the  legal  title  will,  under  certain  circumstances, 
be  declared  a  trustee  of  the  one  whose  money  paid  for  the 
land.  A  trust  of  this  kind  is  known  as  a  resulting  trust. 
Each  case  must  in  a  measure  be  determined  by  its  own  cir- 
cumstances. In  some  cases  the  deed  will  convey  to  the  grantee 
a  beneficial  interest,  as  when  it  is  made  to  a  wife  or  child, 
who,  nevertheless,  has  paid  no  part  of  tlie  purchase  money.^ 

§  1149.  Legislation  as  to  resulting  trusts. — The  rule 
as  to  resulting  trusts,  where  the  purchase  money  has  been 
paid  by  one  and  the  deed  taken  by  another,  has  been  modified 
or  abolished  in  several  of  the  States.  In  New  York  the 
title  vests  in  the  grantee,  where  it  has  been  so  taken  with 
the  consent  or  knowledge  of  the  person  paying  the  considera- 
tion, and  where  the  grantee  has  not  purchased  the  land  in 
violation  of  a  trust.  But  the  conveyance  is  deemed  fraudulent 
as  against  the  creditors  who  were  such  at  that  time,  of  the 
person  having  the  consideration,  and  the  grantee  has  the 
burden  of  proof  of  showing  that  the  transaction  was  not 
for  a  fraudulent  purpose."    Statutes  of  a  similar  import  have 

1  Robinson  v.  Taylor,  2  Bro.  Ch.  42 ;  Rogers  v.  Rogers,  3  P.  Wms. 

594;   Elliott  v.   Elliott,  2  Ch.   Cas.  193;    Cripps  v.   Jee,  4   Bro.   C.   C. 

Ch.    232;    Coningham    v.    Mellish,  472.     It   is   not   necessary   for  the 

Prec.  Ch.  31;  Hayes  v.  Kingdome,  creation   of    a    resulting   trust   that 

1    Vern.    33;    Christ's    Hospital    v.  one  party  should  have  been  guilty 

Budgin,  2  Vern.  683;  Lloyd  v.  Spil-  of  fraud:  Talbot  v.  Barber,  11  Ind. 

lett,  2  Atk.   566;   Jennings  v.   Sel-  App.  1,  38  N.  E.  Rep.  487. 

leek,  1  Vern.  467;  Baylis  v.  New-  ^Rev.  Stats.,  pt.  2,  ch.   1,  art.  6, 

ton,  2  Vern.  28;  Smith  v.  King,  16  §§  51-53,  vol.  2,  p.  1105  (ed.  1875). 

East,  283;  Grey  v.  Grey,  2  Swanst.  See  Jencks  v.  Alexander,  11  Paige, 

598;  Cook  v.  Hutchinson,  1  Keen,  619;  Bodine  v.  Edwards,  10  Paige, 


CHAP.  XXXII.]  DEED  TO  ONE,  MONEY  PAID  BY  ANOTHER.       2163 

been  passed  in  Indiana,'  Minnesota,*  Michigan,'  Kansas,' 
Wisconsin,''  Kentucky.'  But  these  provisions  of  the  statute 
imply  that  the  party  paying  the  purchase  money  had  full  knowl- 
edge that  the  deed  was  made  to  another.'  And  it  has  been 
held  under  these  statutes,  where  the  purchase  was  made  by 
the  parties  paying  the  money  for  the  benefit  of,  and  intended 
as  a  gift  or  advancement  to,  their  daughter,  who  was  an  in- 
fant, and  an  absolute  deed  was  executed  to  a  third  person 
for  the  benefit  of  such  infant  daughter,  but  without  her  con- 
sent or  knowledge,  that  these  statutes  did  not  apply,  and  that 
the  holder  of  the  legal  title  had  a  mere  naked  title  without 
interest,  against  which  a  judgment  rendered  against  him  could 
not  become  a  lien.^     If  it  is  expressly  agreed  between  two 


504;  Siemon  v.  Schurck,  29  N.  Y. 
598;  Brewster  v.  Power,  10  Paige, 
562;  Lounsbury  v.  Purdy,  16  Barb. 
376,  18  N.  Y.  515;  Gilbert  v.  Gil- 
bert, 1  Keyes,  159;  Willink  v.  Van- 
derveer,  1  Barb.  599;  Norton  v. 
Stone,  8  Paige,  222;  Reid  v.  Fitch, 
11  Barb.  399;  Watson  v.  Le  Row,  6 
Barb.  481 ;  Swinburne  v.  Swin- 
burne, 28  N.  Y.  568;  Buffalo  R.  R. 
Co.  V.  Lampson,  47  Barb.  533 
Stover  V.  Flack,  41  Barb.  162 
Foote  V.  Bryant,  47  N.  Y.  544 
Reitz  V.  Reitz,  80  N.  Y.  538;  Day 
V  Roth,  18  N.  Y.  448;  Underwood 
V.  Sutcliffe,  n  N.  Y.  58 ;  Traphagen 
V.  Burt,  67  N.  Y.  30;  Ocean  Nat. 
Bank  v.  Olcott,  46  N.  Y.  12;  Mc- 
Cartney V.  Bostwick,  32  N.  Y.  53; 
Jackson  v.  Forrest,  2  Barb.  Ch. 
576;  Sieman  v.  Austin,  ZZ  Barb.  9. 

sStats.  1876,  vol.  1,  p.  915,  §§  6- 
8. 

4  Stats.  (Younge's  ed.  1830),  p. 
553,  §§  7-9.  See  Durfee  v.  Pavitt, 
14   Minn.   424. 

8  Comp.  Laws  1871,  vol.  2,  p. 
1331,  §  7.     See  Fisher  v.  Fobes,  22 


Mich.  454;  Groesbeck  v.  Seeley,  13 
Mich.  329. 

6  Comp.  Laws  (Dassler's  ed., 
1881.) 

7  Rev.  Stats.  (Taylor's  ed.,  1872), 
vol.  2,  p.  1129,  §  7. 

8  Gen.  Stats.  1873.  p.  587,  §  19. 
See  Martin  v.  Martin,  5  Bush.  47. 
And  see,  as  to  other  States,  Mc- 
Donough's  Executors  v.  Murdock, 
15  How.  367,  14  L.  ed.  732 ;  Gaines 
V.  Chew,  2  How.  619,  11  L.  ed. 
402;  Hutchins  v.  Haywood,  50  N. 
H.  491;  Clark  v.  Chamberlain,  13 
Allen,  257. 

9  Reitz  V.  Reitz,  80  N.  Y.  538. 

1  Siemon  v,  Schurck,  29  N.  Y. 
508.  "It  is  fairly  inferable,"  said 
Hogeboom,  J.,  "from  the  phrase- 
ology of  these  sections,  and  it  is 
obvious  from  the  notes  of  the  re- 
visers, that  the  principal,  if  not  the 
only  mischief  intended  to  be  rem- 
edied and  uprooted  by  these  sec- 
tions, was  a  secret  trust  for  the 
benefit  of  the  person  paying  the 
consideration.  It  was  not  deemed 
consistent  with  fair  dealing  and  just 


2164  THE  LAW  OF  DEEDS.  [CHAP.  XXXII. 

persons  that  the  title  shall  be  placed  in  the  name  of  one  for 
the  benefit  of  both,  the  statute  abolishing  resulting  trusts  does 
not  apply.^  Nor  does  the  statute  apply  where  a  deed  absolute 
on  its  face  is  accompanied  by  a  parol  defeasance.'  Nor 
does  it  apply  to  a  case  where  money  of  the  complainant  has 
been  invested  in  lands  and  a  deed  taken  without  his  knowledge 
or  consent  in  the  names  of  his  step-children.  He  will  be 
in  such  a  case  entitled  in  equity  to  a  conveyance.* 

§  1149a.  Mortgage  as  a  conveyance. — Under  a  statute 
providing  that  when  a  conveyance  is  made  to  one  person 
and  the  consideration  paid  by  another,  no  resulting  trust 
shall  arise,  but  the  title  shall  vest  in  the  grantee,  a 
mortgage  is  not  a  conveyance.  Although  one  person  is  named 
as  the  payee  in  a  note  and  mortgage,  the  title  is  in  the  person 
by  whom  the  money  is  supplied.  "It  is  true"  said  the  court, 
"that  the  words  'grant'  and  'conveyance'  are  sometimes  con- 
policy  that  a  person  for  whose  use  children,  or  equally  deserving  claim- 
such  a  conveyance  was  made,  and  ants  upon  the  bounty  of  the  parent, 
who  was  designed  to  reap  all  the  or  from  a  supposed  inconvenience 
benefits  thereof,  should  thus  conceal  or  embarrassment  in  making  the 
a  real  ownership  under  an  assumed  conveyance  to  a  minor,  or  from  ig- 
name;  and  the  statute,  therefore,  norance  or  injudicious  advice,  or 
virtually  imposed  upon  him  the  pen-  any  other  cause,  we  are  able  to 
alty  of  the  forfeiture  of  his  estate.  see  that  the  mischiefs  of  such  a 
No  such  argument — at  least,  not  in  transaction  are  by  no  means  as 
all  its  force — applies  to  the  case  great  as  those  arising  from  a  secret 
of  a  gift  or  advancement  made  by  a  trust  in  favor  of  the  person  pajring 
parent  to  a  child,  where  the  latter  the  consideration  himself." 
was  intended  to  be  vested  with  the  ^  Gage  v.  Gage,  43  N.  Y.  S.  810, 

beneficial  ownership  and  the  com-       13  App.  Div.  565. 
plete  equitable  title.    It  may  be  dif-  '  Stitt    v.    Rat    Portage    Lumber 

ficult  to  give  a  satisfactory  reason  Co.,  96  Minn.  27,  104  N.  W.  561. 
why  the  title  should  not  have  been  *  Ransom    v.    Ransom,    31    Mich, 

conveyed  directly  to  the  child  for      301.     See,  also,  Chapman  v.  Chap- 
whose  benefit  the  conveyance   was      man,  1 14  Mich.  144,  12  N.  W.  131 ; 
intended ;  but  whether  the  real  mo-       Bulen  v.  Granger,  56  Mich.  207,  22 
tive   was   to  conceal  the  character       N.  W.  306. 
of  the  transaction  from  the  other 


CHAP.  XXXII.]  DEED  TO  ONE,  MONEY  PAID  BY  ANOTHER.        2165 

striied  to  include  a  mortgage  even  in  jurisdictions  where,  as  in 
Kansas,  sucli  an  instrument  passes  no  estate  in  the  land.  For 
various  reasons  that  are  unassailable,  but  which  are  peculiar 
to  each  of  the  several  classes  of  cases,  such  interpretation 
has  been  adopted  in  the  construction  of  statutes  relating  to 
the  homestead  right,  to  the  alienation  of  public  lands  by  a 
settler  before  acquiring  title,  to  the  registration  of  instru- 
ments affecting  real  estate,  and  to  other  matters.  These 
reasons  have  no  application  here.  A  mortgage  is  but  an  in- 
cident of  the  debt  it  secures.  It  inures  to  the  benefit  of  the 
owner  of  the  debt  without  formal  assignment  as  a  separate 
and  independent  right.  It  is  extinguished  by  the  payment  of 
the  indebtedness."^  Such  a  statute  does  not  relate  to  personal 
property,  and  hence,  a  bond  and  mortgage  may  be  held  by 
one  as  trustee  for  another  paying  the  consideration.* 

§  1150.  Deed  to  one,  and  purchase  money  paid  by  an- 
other.— The  law  presumes,  in  the  absence  of  a  statutory 
declaration  to  the  contrary,  that  the  one  who  pays  the  con- 
sideration is  the  one  to  reap  the  benefit,  and  that  if,  from 
any  cause  or  reason  operating  between  themselves,  the  title 
is  not  taken  in  the  name  of  the  one  who  has  paid  the  purchase 
price,  this  was  done  for  some  reason  satisfactory  to  them- 
selves, yet  not  for  the  purpose  of  vesting  the  whole  title  in 
the  apparent  grantee.  Hence,  it  may  be  asserted  that,  as  a 
general  proposition,  where  the  purchase  money  is  paid  by  one 
and  the  title  taken  in  the  name  of  another,  the  two  being 
strangers  to  each  other,  a  resulting  trust  arises,  and  the  grantee 
will  be  held  to  be  a  trustee  for  the  person  who  parted  with 
the  consideration  for  which  the  deed  was  made.'  "It  is  a 
settled  principle  that  where  one  person  purchases  property 

SHanrion    v.    Hanrion,    73    Kan.  Wis.  482,  97  N.  W.  186;  Baker  v. 

25    84  Pac.  381,  117  Am.  St.  Rep.  Terrell,  8  Minn.  195. 

453  7  Union   College   v.   Wheeler,   59 

6Robbins   V.   Robbins,  89   N.   Y.  Barb.    585;    Boyd    v.    McLean,    1 

25L     See,  also.  Meier  v.  Bell,  119  Johns.  Ch.  582;  Neale  v.  Hagthorp, 


2166 


THE  LAW   OF   DEEDS. 


[chap.  XXXII. 


for  a  stranger,  and  the  purchase  money  is  paid  by  the  stranger, 
or  out  of  his  funds,  although  the  title  is  taken  in  the  name 
of  the  person  making  the  purchase,  a  trust  results,  and  the 


3  Bland,  551 ;  Hempstead  v.  Hemp- 
stead, 2  Wend.  109;  Willis  v.  Wil- 
lis, 2  Atk.  71;  Woodman  v.  Mor- 
rel,  2  Freem.  33;  Wallace  v.  Duf- 
field,  2  Serg.  &  R.  521,  7  Am.  Dec. 
660;  Dillard  v.  Crocker,  Speer  Eq. 
20;  Edwards  v.  Edwards,  39  Pa. 
St.  369;  Bostleman  v.  Bostleman, 
24  N.  J.  Eq.  103;  Long  v.  Steiger, 
8  Tex.  460;  Groesbeck  v.  Seeley, 
13  Mich.  329 ;  Campbell  v.  Campbell, 
21  Mich.  428;  Glidewell  v.  Spaugh, 
36  Ind.  319;  Garrett  v.  Garrett,  1 
Strob.  Eq.  96;  Davis  v.  Baugh,  59 
Cal.  568;  Johnson  v.  Qiiarles,  46 
Mo.  423;  Rankin  v.  Harper,  23  Mo. 
579;  Paul  v.  Chouteau,  14  Mo.  580; 
Russell  V.  Lode,  1  Greene,  566 ;  Wil- 
liams V.  Hollingsworth,  1  Strob. 
Eq.  103,  47  Am.  Dec.  527 ;  McGov- 
em  V.  Knox,  21  Ohio  St.  551,  8 
Am.  Rep.  80;  Bayles  v.  Baxter,  22 
Cal.  575;  Millard  v.  Hathaway,  27 
Cal.  119;  Wilson  v.  Castro,  31  Cal. 
420;  Jenkins  v.  Frink,  30  Cal.  586, 
89  Am.  Dec.  134;  Case  v.  Codding. 
38  Cal.  191;  Settembre  v.  Putnam, 
30  Cal.  490;  Trench  v.  Harrison, 
17  Sim.  Ill;  Murless  v.  Franklin, 
I  Swanst.  17;  Grey  v.  Grey,  2 
Swanst.  597;  Rider  v.  Kidder.  10 
Ves.  360 ;  Ex  parte  Vernon,  2  Wms. 
549;  Lade  v.  Lade,  1  Wils.  21; 
Hungate  v.  Hungate,  Toth.  120; 
Redington  v.  Redington,  3  Ridg. 
App.  177;  Finch  v.  Finch,  15  Ves. 
50;  Ex  parte  Houghton,  17  Ves. 
253;  Crop  v.  Norton,  9  Mod.  235; 
Ambrose  v.  Ambrose,  1  P.  Wms. 
321 ;  Henderson  v.  Hoke,  1  Dev. 
&  B.  Eq.  119;  Strimpfler  v.  Roberts, 


18  Pa.  St.  283,  57  Am.  Dec.  606; 
Lloyd  V.  Carter,  17  Pa.  St.  (5 
Harris)  216;  Beck  v.  Graybill,  28 
Pa.  St.  (4  Casey)  66;  Lynch  v. 
Cox,  23  Pa.  St.  (11  Harris)  265; 
Kisler  v.  Kisler,  2  Watts,  323,  27 
Am.  Dec.  308;  Cutler  v.  Tuttle,  19 
N.  J.  Eq.  549,  558;  Hollis  v.  Hol- 
lis,  1  Md.  Ch.  479;  Guthrie  v.  Gard- 
ner, 19  Wend.  414 ;  Wasley  v.  Fore- 
man, 38  Cal.  90;  Perry  v.  Head,  1 
Marsh.  A.  K.  46;  Gass  v.  Gass,  1 
Heisk.  613;  Elliott  v.  Armstrong, 
2  Blackf.  198;  Phillips  v.  Cram- 
mond,  2  Wash.  C.  C.  441;  Kirk- 
patrick  v.  Davidson,  2  Kelly,  297; 
Hall  V.  Sprigg,  7  Mart.  (La.)  243, 
12  Am.  Dec.  506;  Nichols  v.  Thorn- 
ton, 16  111.  113;  Prevo  v.  Wallers, 
4  Scam.  35;  McDonough's  Exe- 
cutors V.  Murdock,  15  How.  367, 
14  L.  ed.  732;  Church  v.  Cole,  36 
Ind.  35;  Hampson  v.  Fall,  64  Ind. 
382;  Letcher  v.  Letcher,  4  Marsh. 
J.  J.  592;  Baumgartner  v.  Guess- 
feld,  38  Mo.  36;  McLennan  v.  Sul- 
livan, 13  Iowa,  521 ;  Tinsley  v.  Tins- 
ley,  52  Iowa,  14;  Rogan  v.  Walker, 
1  Wis.  527;  Seaman  v.  Cook,  14 
111.  501;  Rhodes  v.  Green,  36  Ind. 
11;  Stark  v.  Cannady,  3  Litt.  399, 
14  Am.  Dec.  76;  Harris  v.  Urjion 
Bank,  1  Cold.  152;  Irvine  v.  Mar- 
shall, 7  Minn.  286;  Groves  v. 
Groves,  3  Younge  &  J.  170;  Wray 
v.  Steele,  2  Ves.  &  B.  390;  Pelly  v. 
Maddin,  21  Vin.  Abr.  498;  Smith 
V.  Baker,  1  Atk.  385;  Withers  v. 
Withers,  Amb.  151 ;  Lever  v.  And- 
rews, 7  Brown  Pari.  C.  288 ;  Clarke 
V.    Danvers,    1    Ch.    Cas.   Ch,   310; 


CHAP.  XXXII. i  DEED  TO  ONE^  MONEY  P.\ID  BY  ANOTHER.        2167 

land  is  held  in  trust  for  the  party  whose  money  is  paid. 
This  trust  arises  without  any  declaration  in  writing,  for  it 
is  expressly  excepted  by  the  statute  of  frauds  from  the  opera- 


Smith  V.  Camel  ford,  3  Ves.  J.  R. 
712;  Prankerd  v.  Prankerd,  1  Sim. 
&  S.  1 ;  Goodright  v.  Goodright,  1 
Watk.  Cop.  227,  Lofft,  230;  Jack- 
man  V.  Ringland,  4  Watts  &  S. 
149;  Bank  of  United  States  v. 
Carrington,  7  Leigh,  566;  Tebbetts 
V.  Tilton,  31  N.  H.  283;  Hall  v. 
Young,  37  N.  H.  134;  Lyford  v. 
Thurston,  16  N.  H.  399;  Page  v. 
Page,  8  N.  H.  187;  Dow  v.  Jewell, 
18  N.  H.  340,  45  Am.  Dec.  371; 
Hopkinson  v.  Dumas,  42  N.  H.  296; 
Hall  V.  Congdon,  56  N.  H.  279; 
Brown  v.  Cherry,  59  Barb.  628; 
Howell  V.  Howell,  15  N.  J.  Eq.  75; 
Johnson  v.  Dougherty,  18  N.  J. 
Eq.  406;  Depeyster  v.  Gould,  2 
Green  Ch.  480,  29  Am.  Dec.  723; 
Botsford  V.  Burr,  2  Johns.  Ch.  408; 
Jackson  v.  Sternberg,  1  Johns.  Cas. 
523;  Kelley  v.  Jenness,  50  Me.  455, 
79  Am.  Dec.  623 ;  Baker  v.  Vining, 
30  Me.  126,  50  Am.  Dec.  617;  Buck 
V.  Pike,  11  Me.  9;  Cecil  Bank  v. 
Snively,  23  Md.  253;  Newells  v. 
Morgan,  2  Harris,  225;  Dorsey  v. 
Clarke,  4  Har.  &  J.  551 ;  Chapline 
V.  McAfee,  3  Marsh.  J.  J.  513; 
McGuire  v.  Ramsey,  4  Eng.  519; 
Taliaferro  v.  Taliaferro,  6  Ala.  404; 
Leiper  v.  Hoffman,  26  Miss.  615; 
Click  V.  Click,  1  Heisk.  607;  Wil- 
liams T.  Van  Tuyl,  2  Ohio  St.  336 ; 
Qark  v.  Clark,  43  Vt.  685 ;  Pinney 
V.  Fellows,  IS  Vt.  525;  Dewey  v. 
Long,  25  Vt.  564;  Lounsbury  v. 
Purdy,  16  Barb.  376;  McCartney  v. 
Bostwick,  32  N.  Y.  53;  Harder  v. 
Harder,  2  Sand.  Ch.  17;  Jackson  v. 
Woods,   1  Johns.  Cas.  163-   Hoxie 


V.  Carr,  1  Sum.  187;  Livermore  v. 
Aldrich,  5  Cush.  435;  Peabody  v. 
Tarbell,  2  Cush.  232;  Root  v.  Blake, 
14  Pick.  271;  Kendall  v.  Mann,  11 
Allen,  15 ;  Faringer  v.  Ramsay,  2 
Md.  365;  McGowan  v.  McGowan, 
14  Gray,  121,  74  Am.  Dec.  668; 
Dean  v.  Dean,  6  Conn.  285;  Powell 
V.  Monson  etc.  Mfg.  Co.,  3  Mason, 
362;  Stewart  v.  Brown,  2  Serg.  & 
R.  461 ;  Jackson  v.  Matsdorg,  11 
Johns.  91,  6  Am.  Dec.  355;  Steere 
V.  Steere,  5  Johns.  Ch.  1,  9  Am. 
Dec.  256;  White  v.  Carpenter,  2 
Paige,  218;  Kellogg  v.  Wood,  4 
Paige,  579;  Partridge  v.  Havens, 
10  Paige,  618;  Foote  v.  Colvin,  3 
Johns.  218,  3  Am.  Dec.  478;  Jack- 
son V.  Morse,  16  Johns.  197,  8  Am. 
Dec.  306;  Forsythe  v.  Clark,  3 
Wend.  638;  Stratton  v.  Dialogue  16 
N.  J.  Eq.  70;  Nixon's  Appeal,  63 
Pa.  St.  279;  Foster  v.  Trustees  of 
Athenaeum,  3  Ala.  302;  Caple  v. 
McCallum,  27  Ala.  461;  Mahorner 
V.  Harrison,  13  Smedes  &  M.  53 ; 
Walker  v.  Brungard,  13  Smedes  & 
M.  764;  Andrews  v.  Jones,  10  Ala. 
401;  Powell  v.  Powell,  1  Freem. 
Ch.  134;  Salmon  v.  Symonds,  30 
Cal.  301;  McCarrall  v.  Alexander, 
48  Miss.  128;  Simson  v.  Eckstein, 
22  Cal.  580;  Gaines  v.  Chew,  2 
How.  619,  11  L.  ed.  402;  Tarpley 
V.  Poage,  2  Tex.  139;  Bludworth 
V.  Lake,  23  Cal.  256;  Harris  v 
Reynolds,  13  Cal.  514,  73  Am.  Dec 
600;  Price  v.  Reeves,  38  Cal.  457 
Hassey  v.  Wilkie,  55  Cal.  525 
Oberthier  v.  Stroud,  33  Tex.  522 
Ensley  v.  Ballentine,  4  Humph.  233 


2168 


THE  LAW   OF  DEEDS. 


[chap.  XXXII. 


tion  of  that  statute,  and  the  facts  necessary  to  constitute  such 
trust  may  be  proved  by  parol  evidence.  A  similar  rule  pre- 
vails in  cases  where  the  consideration  proceeds  from  two 
or  more  persons  jointly.  A  resuUing  trust  will  arise  in  propor- 
tion to  the  amount  of  the  consideration  which  they  may  have 
respectively  contributed."  *  But  the  payment,  in  order  to  raise 
a  resulting  trust,  must  be  for  some  specific  part  or  distinct 
interest  in  the  estate.* 

§  1151.  Some  instances. — Where  A  buys  land,  and 
takes  the  deed  in  tlie  name  of  B,  and  the  latter  advances  the 
purchase  money,  and  takes  A's  notes  for  the  same,  and  agrees 
to  convey  to  A  on  repayment  of  the  money  advanced  and  in- 
terest, the  money  advanced  by  B  may  be  considered  as  a 


Smitheal  v.  Gray,  1  Humph.  491, 
34  Am.  Dec.  664;  Doyle  v.  Sleeper, 
1  Dana,  536;  Jenison  v.  Graves,  2 
Blackf.  444;  Creed  v.  Lancaster 
Bank,  1  Ohio  St.  1 ;  Hutchinson  v. 
Hutchinson,  59  Cal.  313;  Milliken 
V.  Ham,  36  Ind.  166;  Bruce  v. 
Roney,  18  111.  67;  Smith  v.  Sackett, 
5  Gilm.  534;  Latham  v.  Henderson, 
47  111.  185;  Albright  v.  Oyster,  19 
Fed.  Rep.  489;  Connor  v.  Follans- 
bee,  59  N.  H.  124;  Gogherty  v. 
Bennett,  37  N.  J.  Eq.  87;  Brown 
V.  Brown,  11  Va.  619;  Harker  v. 
Reilly,  4  Del.  Ch.  72;  Lipcomb  v. 
Nichols,  6  Colo.  290;  McNamara  v. 
Garrity,  106  111.  384;  Goldsberry  v. 
Gentry,  92  Ind.  193 ;  Lewis  v.  Mont- 
gomery etc.  Loan  Assn.,  70  Ala. 
276;  Parker  v.  Coop,  60  Tex.  Ill; 
Milner  v.  Freeman,  40  Ark.  62 ; 
Buren  v.  Buren,  79  Mo.  538;  Rey- 
nolds V.  Reynolds,  30  Kan.  91 ; 
Boyer  v.  Libbey,  88  Ind.  235 ;  Leg- 
gett  V.  Leggett,  88  N.  C.  108;  Witte 
V.  Wolfe,  16  S.  C.  256;  Sherburne 


V.  Morse,  132  Mass.  469;  Rupp's 
Appeal,  100  Pa.  St.  531 ;  Seibold  v. 
Christman,  75  Mo.  308;  Robinson 
V.  McDiarmid,  87  N.  C.  455 ;  Witts 
V.  Horney,  59  Md.  584;  Law  v. 
Law,  76  Va.  527;  Ward  v.  Spivey, 
18  Fla.  847;  Beadle  v.  Beadle,  2 
McCrary,  C  C  586;  Lawry  v. 
Spaulding,  73  Me.  31 ;  Van  Sycle 
V.  Kline,  34  N.  J.  Eq.  332;  Robin- 
son V.  Leflore,  59  Miss.  148 ;  Hardin 
V.  Darwin,  66  Ala.  55;  Stafford  v. 
Wheeler,  93  Pa.  St  462;  Harrison 
V.  Emery,  85  N.  C.  161 ;  Walker  v. 
EUedge,  65  Ala.  51 ;  Kelly  v.  John- 
son, 28  Mo.  249 ;  Frederick  v.  Haas, 
5  Nev.  389;  Bartlett  v.  Pickersgill, 

1  Eden,  515;  Rothwell  v.  Dewees, 

2  Black.  613,  17  L.  ed.  309. 

8  Cutler  V.  Tuttle,  19  N.  J.  Eq. 
(4  Green,  C.  E.)  549,  558.  per 
Dupue,  J. 

8  McGowan  v.  McGowan,  14  Gray, 
119,  74  Am,  Dec  668,  and  cases 
cited. 


CHAP.  XXXII.]  DEED  TO  ONE^  MONEY  PAID  BY  ANOTHER,        2169 

loan  to  A,  and  the  land  so  purchased  will  be  held  by  B,  as 
trustee  for  A.^  Where  one  having  a  grant  of  land  from  the 
Mexican  government  dies  intestate,  and  a  person  erroneously 
believing  himself  to  be  the  heir  sells  a  part  of  the  land  to 
another,  who,  subsequently  acting  under  the  impression  that 
he  has  acquired  a  valid  title,  obtains  a  confirmation  of  the 
grant  and  a  patent  from  the  United  States,  the  true  heirs 
at  law  are  not  deprived  by  the  patent  of  their  interest  in  the 
property,  but  the  patentee  holds  the  legal  title  in  trust  for 
them.'  Where  two  persons  agree  with  an  owner  of  land 
to  purchase  it  of  him  for  five  hundred  dollars,  each  to  have 
an  undivided  half,  and  one  of  the  intending  purchasers  ac- 
cepts from  the  agent  of  the  other  a  watch  in  lieu  of  one 
hundred  and  seventy-five  dollars,  and  other  chattels,  for  the 
purpose  of  selling  them  to  make  up  the  balance  of  one-half 
of  the  purchase  price,  cancels  a  debt  due  him  by  the  owner, 
in  part  payment  of  the  land,  and  sells  the  chattels  and  pays 
the  balance,  a  resulting  trust  arises  in  favor  of  the  other 
vendee  for  one-half  of  the  land.^  A  resulting  trust  does  not 
arise  from  the  agreement  of  the  parties,  but  from  the  fact  that 
the  purchase  money  has  been  paid  by  one,  and  the  title  taken 
in  the  name  of  another.*  Where  a  father  purchased  land, 
paying  two  thousand  five  hundred  dollars  for  the  same,  of 
which  sum  twelve  hundred  dollars  belonged  to  one  of  his 
sons,  and  took  the  deed  in  his  own  name,  and  afterward  the 
son  died,  leaving  his  father,  mother,  and  five  brothers  and 
sisters  as  his  heirs,  and  the  father,  becoming  indebted  to  a 
large  amount  subsequently  conveyed  the  land  without  con- 
sideration to  the  brothers  and  sisters  of  the  deceased  son,  and 
a  suit  was  brought  by  the  creditors  of  the  father  to  subject 
the  land  to  the  payment  of  his  debts,  it  was  held  that  the 
heirs  of  the  deceased  son  had  a  resulting  trust  in  the  land,  to 
the  extent  of  twelve  undivided  twenfy-fifths,  and  that  they 

1  Page  V.  Page,  8  N.  H.  187.  »  Frederick  v.  Haas,  5  Nev.  3®). 

2  Wilson  V.  Castro,  31  Cal.  420.  «  Bruce  v.   Roney,   18  111.  67. 


2170  THE  LAW   OF  DEEDS.  [ciIAP.  XXXll. 

held  the  legal  title  to  the  remaining  thirteen  twenty-fifths, 
subject  to  the  lien  of  the  creditors  of  the  father,  as  also 
one-seventh  of  the  twelve  twenty-fifths,  which  was  the  father's 
share,  as  one  of  the  seven  heirs  of  the  deceased  son.^  But 
where  a  father,  for  the  purpose  of  defrauding  his  creditors, 
purchased  land  in  the  name  of  his  son,  it  was  decided  that 
the  presumption  of  an  advancement  to  the  son  was  repelled 
by  the  intended  fraud  upon  creditors,  and  therefore  the  father 
had  a  resulting  trust,  which  was  subject  to  sale  on  execution 
under  judgments  obtained  by  such  creditors.^  And  while,  if 
the  purchase  price  is  paid  by  the  husband,  and  the  deed  is 
taken  in  the  name  of  the  wife,  it  may  be  presumed  that  the 
purchase  was  an  advancement  to  the  wife,  yet  the  transaction 
is  open  to  explanation,  and  when  it  appears  that  the  husband's 
object  was  to  defraud  creditors,  he  has  a  resulting  trust,  sub- 
ject to  sale  on  execution.'  But  where  a  father  having  an 
interest  in  the  land  has  the  deed  made  to  his  son,  who  has 
paid  certain  debts  of  the  father,  and  the  deed  is  treated  by 
both  father  and  son  as  an  absolute  conveyance,  the  father  hav- 
ing sufficient  property  to  pay  all  his  debts,  and  no  fraudulent 
intent  existing,  the  conveyance  is  not  fraudulent  and  void 
as  to  the  father's  subsequent  creditors,  although  the  considera- 
tion was  not  equal  to  the  value  of  the  land.' 

§  1151a.  Arises  by  implication  of  law. — A  resulting  trust 
is  not  created  by  contract  but  arises  by  implication  of  law,^  and 
it  cannot  arise  where  a  fraudulent  purpose  is  the  foundation 
of  the  transaction.*  Implications  are  not  considered  where 
the  trust  is  expressed.^     Thus  a  trust  is  express  and  not  re- 

•  Latham    v.    Henderson,    47    111.  ^  Dewey  v.  Long,  25  Vt.  564. 

185.  9  Potter  v.  Clapp,  203  111.  592,  68 

« Rankin  v.  Harper,  23  Mo.  579.  N.  E.  81,  96  Am.  St.  Rep.  322. 

See,  also,  Doyle  v.  Sleeper,  1  Dana,  ^  Sell  v.  West,   125   Mo.  621,  28 

531.  S.  W.  696,  46  Am.  St.  Rep.  508. 

"^  Guthrie   v.    Gardner,    19   Wend.  ^  Coleman  v.   Parran,  43  W.  Va. 

414  727,  28  S.  E.  769. 


CHAP.  XXXII.]  DEED  TO  ONE,  MONEY  PAID  BY  ANOTHER.        2171 

suiting  where  land  is  conveyed  by  a  son  to  his  father  with 
the  understanding  that  the  latter  was  to  hold  it  only  for  his 
support  and  to  reconvey  it  either  by  deed  or  will.^  A  code 
provision  requiring  that  all  trusts  in  real  property  shall  be 
created  by  an  instrument  in  writing  does  not  apply  to  trusts 
which  result  by  law,  as  such  a  trust  may  be  established  by 
parol*  Such  a  trust  is  not  within  the  purview  of  a  statute 
prohibiting  parol  trusts  in  land.^  A  contract  of  agency  is  not 
within  the  statute  of  frauds  where  the  president  of  a  company 
was  directed  as  agent  to  purchase  land  for  the  company  which 
he  agreed  to  do,  but  instead  of  doing  this,  purchased  the  land 
for  himself  and  took  the  deed  in  his  own  name.®  A  resulting 
trust  cannot  arise  where  it  is  orally  agreed  that  the  grantor 
shall  convey  land  to  a  creditor  and  that  it  shall  be  sold,  and 
the  proceeds  distributed  among  the  grantee  and  other  creditors 
of  the  grantor,  for  the  reason  that  a  resulting  trust  cannot  be 
based  upon  an  express  agreement.''  It  is  said  by  Judge  Corson 
that,  "in  a  resulting  trust  intention  is  an  essential  element, 
although  that  intention  is  never  expressed  by  words  of  direct 
creation.  The  law,  however,  presumes  the  intent  from  the 
facts  and  circumstances  accompanying  the  transaction,  and 
the  payment  of  the  consideration  for  the  whole  or  a  definite 
or  aliquot  part  of  the  property  sought  to  be  impressed  with 
the  trust.  There  is  usually  no  element  of  fraud  in  a  resulting 
or  implied  trust,  but  the  conveyance  is  made  or  taken  with 
the  knowledge  and  consent,  express  or  implied,  of  the  person 
who  has  paid  the  consideration.     When  one,  therefore,  takes 

SMonson  v.  Hutchin,  194  111.  431,  S.  W.  678;  Butler  v.  Carpenter,  163 

62  N.  E.  788.  Mo.   597,  63  S.  W.  823;  Lyons  v. 

*Culp  V.  Price,  107  Iowa,  133,  11  Berlau,  67   Kan.  426,   73   Pac.   52; 

N.  W.  848.     See  Los  Angeles  etc.  Rayl  v.  Payl,  58  Kan.  585,  50  Pac. 

R.   Co.   V.    Occidental  Oil   Co.,    144  501. 

Cal.  528,  78  Pac.  25.  ®  Halsell    v.    Wise    County    Coal 

5  Tillman  v.  Murrell,  120  Ala.  239,  Co.,   19  Tex.   Civ.  App.  564,  47  S. 

24   So.   712.     See,   also,   Crosby   v.  W.   1017. 

Henry,  76  Ark.  615,  88  S.  W.  949;  ^  Byers    v.    McEniry,    117    Iowa, 

Plumb  V.  Cooper.  121  Mo.  668,  26  499,  91  N.  W.  191. 


2172  THE  LAW   OF  DEEDS.  [CHAP.  XXXII. 

a  conveyance  secretly,  contrary  to  the  wishes  of,  and  in  viola- 
tion of  his  duty  to,  the  beneficiary,  and  in  fraud  of  his  rights, 
the  trust  is  not  a  resulting  but  a  constructive  or  involuntary 
trust."  *  If  a  purchaser  at  a  foreclosure  sale  only  agrees 
to  convey  to  the  mortgagor,  should  redemption  be  made  within 
a  certain  time,  a  default  of  the  mortgagor  as  to  such  payment 
will  not  justify  a  court  in  declaring  a  resulting  trust.*  A 
trust  must  result  at  the  moment  that  title  is  taken,  and  no 
agreements  made  before  or  after  that  time  can  create  a  re- 
sulting trust.*  If  one  agrees  to  buy  land  at  a  commissioners' 
sale  for  another,  but  buys  it  for  himself,  no  trust  will  arise, 
although  he  was  enabled  to  obtain  the  land  at  an  inadequate 
price  because  other  persons  who  would  have  bid  did  not  do 
so  when  they  became  aware  of  this  agreement.^ 

§  1152.  Consideration  paid  by  several. — It  is  now  well 
settled,  whatever  doubt  there  formerly  may  have  been,  that 
if  the  consideration  money  is  paid  by  a  number  of  persons, 
and  the  deed  is  taken  in  the  name  of  a  stranger,  the  latter 
will  hold  the  legal  title  in  trust  for  the  joint  purchasers.''  If 
an  unlawful  perpetuity  is  created  by  a  will,  causing  a  failure 
of  the  trust,  and  the  will  makes  no  other  provision  for  dispos- 

8  Farmers'  etc.  Bank  v.  Kimball  Stevenson,  118  Iowa,  106,  91  N.  W. 
M.   Co.,   1   S.  D.  388,  36  Am.  St.      797. 

Rep.  739.  SLarkins  v.  Rhodes,  5  Port.  196; 

9  Banes  v.  Morgan,  204  Pa.  185,  Baumgartner  v.  Giiessfeld,  38  Mo. 
53  Atl.  754.  36;    Letcher   v.   Letcher,  4   Marsh. 

1  Arnold  v.  Ellis,  20  Tex.  Civ.  J.  J.  590;  Wray  v.  Steele,  2  Ves. 
App.  262,  48  S.  W.  883;  Williamson  &  B.  388;  Keaton  v.  Cobb,  1  Dev. 
V.  Gove,  73  S.  W.  563.  Ch.  439,  18  Am.  Dec.  595 ;  Ross  v. 

2  Whiting  V.  Dyer,  21  R.  L  278,  Hegeman,  2  Edvv.  Ch.  373;  Powell 
43  Atl.  181.  See  as  to  resulting  v.  Monson  etc.  Co.,  3  Mason,  347. 
trusts:  Foster  v.  Beidler,  79  Ark.  See  Jenkins  v.  Frink,  30  Cal.  586, 
418,  96  S.  W.  175;  Whitmer  v.  89  Am.  Dec.  134;  Hidden  v.  Jordan, 
Schenk,  11  Idaho,  702,  83  Pac.  775;  21  Cal.  92;  Avery  v.  Stewart,  136 
Stewart  v.  Douglass.  148  Cal.  511,  N.  C.  426,  68  L.R.A.  776.  48  S.  E. 
83     Pac     699;      McClenahan     v,  775. 


CHAP.  XXXII.]  DEED  TO  ONE^  MONEY  PAID  BY  ANOTHER.        2173 

ing  of  the  property,  a  trust  results  in  favor  of  the  heir  or 
next  of  kin,  and  administration  may  be  had  on  the  estate.* 

§  1152a.  Consent  that  title  should  be  taken  in  name  of 
another. — The  right  of  a  party  to  have  a  resuhing  trust  de- 
clared in  his  favor  is  not  defeated  by  the  fact  that  he  con- 
sented that  the  title  to  the  land  should  be  taken  in  the  name 
of  another.^  A  vendor  will  hold  the  legal  title  as  trustee 
for  the  vendee  where  the  latter  has  paid  the  purchase  price, 
taken  possession  of  the  land,  and  improved  it  with  the  consent 
of  the  vendor,  and  paid  off  the  debts  of  the  estate.'  A  sub- 
sequent payment  will  not  relate  back  so  as  to  attach  a  trust  to 
the  original  purchase.  The  trust  must  arise  when  the  deed 
is  executed.'  Where  a  lease  containing  an  option  of  purchase 
was  interlined  so  as  to  make  another  a  colessee,  and  both 
jointly  occupied  the  land,  the  colessee  making  valuable  im- 
provements, and  the  original  lessee  purchased  the  land,  taking 
the  deed  in  his  own  name,  it  was  decided  that  the  purchase 
inured  to  the  benefit  of  the  colessee,  who,  on  payment  of  one- 
half  of  the  purchase  price,  was  entitled  to  a  conveyance  of  a 
half  interest.^  A  resulting  trust  may  be  created  by  a  parol 
contract  by  which  a  purchaser  is  to  buy  the  land  and  hold 
it  for  the  joint  benefit  of  himself  and  another.'  If  a  woman 
by  promising  to  marry  a  man  fraudulently  obtains  money 
from  him  with  which  she  purchases  land,  agreeing  to  hold 
the  land  as  a  substitute  for  her  right  to  dower  under  the 
marriage,  and  if  she  refuses  to  marry  him,  a  trust  in  the 
land  will  result  in  his  favor  to  the  extent  of  the  money  ad- 
vanced by  him.* 

*  Andrews  V.  Lincoln,  95  Me.  541,  »  Barbour   v.   Johnson,   21   D.   C. 

56  L.R.A.  103,  50  Atl.  898.  40. 

5  Summers  v.  Moore,   113  N.  C.  » Towle    v.   Wadsworth,   147   111. 


394. 


80. 


6  Ryder  V.  Loomis,  161  Mass.  161.  l  Edwards  v.    Culberson,    111    N. 

7  Moorman  v.  Arthur,  90  Va.  455.      C.  342,  18  L.R.A.  204.  16  S.  E.  233. 


2174  THE  LAW   OF  DEEDS.  [CHAP.  XXXII. 

§  1153.  Deed  taken  in  the  name  of  one  joint  purchas- 
er.— So,  where  several  parties  contribute  to  the  purchase 
of  land,  and  the  deed  is  taken  in  the  name  of  one  of  them, 
each  of  the  others  has  a  resulting  trust  in  the  land  in  the 
proportion  which  the  amount  that  he  paid  bears  to  the  whole 
consideration  price.^  "The  rule  is  well  settled  that  when  land 
is  purchased  for' which  one  party  pays  the  consideration  and 
another  party  takes  the  title,  a  resulting  trust  immediately 
arises  in  favor  of  the  party  paying  the  consideration,  and 
the  other  party  becomes  his  trustee ;  and  it  is  now  equally  well 
settled  that  if  the  one  party  pays  only  a  part  of  the  considera- 
tion, the  party  taking  the  title  to  the  whole  land  becomes  a 
trustee  for  the  other  party  pro  tanto."  ^  Where  land  is  pur- 
chased at  a  tax  sale  by  one  under  an  agreement  that  another 
shall  have  an  equal  interest,  the  former  holds  the  title  for  both 
as  tenants  in  common.*  But  where  two  persons  separately 
purchase  distinct  parcels  of  land  from  the  same  grantor,  the 
title  to  which  proves  to  be  void,  one  of  them  can  subsequently 

2  Buck  V.  Swazey,  35  Me.  41,  56  Me.  455,  79  Am.  Dec.  623;  Union 

Am.  Dec.  681 ;  Seaman  v.  Cook,  14  College    v.   Wheeler,    5   Lans.    160. 

111.  501;  Frederick  v,  Haas,  5  Nev.  See  Dikeman  v.  Norrie,  36  Cal.  94; 

389;  Thomas  v.  Thomas,  62  Miss.  Beadle  v.  Seat,  102  Ala.  532,  15  So. 

531;  Bear  v.  Koenigstein,  16  Neb.  Rep.  243. 

65 ;  Jackson  v.  Bateman,  2  Wend.  ^  Case  v.  Codding,  38  Cal.  191, 
570;  Cloud  v.  Ivie,  28  Mo.  578;  per  Rhodes,  J.,  and  cases  cited. 
Morey  v.  Herrick,  18  Pa.  St.  129;  See,  also,  Pierce  v.  Pierce,  7  Mon. 
Purdy  V.  Purdy,  3  Md.  Ch.  547;  B.  433;  Lake  v.  Gibson,  1  Eq.  Cas. 
Rigden  v.  Walker,  3  Atk.  735  ;  Stew-  Abr.  291 ;  Brothers  v.  Porter,  6 
art  V.  Brown,  2  Serg.  &  R.  461;  Mon.  B.  106;  Quackenbush  v.  Leon- 
Jackson  V.  Moore,  6  Cowen.  706;  ard,  9  Paige,  334;  Powell  v.  Mon- 
James  v.  James,  41  Ark.  301 ;  Clark  son  etc.  Mfg.  Co.,  3  Mason,  347 ; 
V.  Clark,  43  Vt.  685;  Bogert  v.  Per-  Botsford  v.  Burr,  2  Johns.  Ch.  405; 
ry,  17  Johns.  351,  8  Am.  Dec.  411;  Shoemaker  v.  Smith,  11  Humph.  81; 
Case  V.  Codding,  38  Cal.  191 ;  Baum-  Hall  v.  Young,  Z7  N.  H.  134;  Ber- 
gartner  v.  Guessfeld,  38  Mo.  36;  nard  v.  Bongard,  Har.  (Mich.)  130; 
McDonald  v.  McDonald,  24  Ind.  Pinney  v.  Fellows,  15  Vt.  525. 
68 ;  Dow  V.  Jewell,  19  N.  H.  340,  *  Stewart  v.  Brown,  2  Serg.  &  R. 
45  Am  Dec.  371 ;  Brown  v.  Brown,  461. 
77  Va.  619;   Kelley  v.  Jenness,  50 


CHAP.  XXXII.]  DEED  TO  ONE^  MONEY  PAID  BY  ANOTHER.        2175 

acquire  the  true  title  to  both  of  the  different  parcels,  and 
he  will  not  hold  the  title  as  trustee  for  the  other.^  An  ap- 
plication was  made  to  the  proper  officer  for  a  grant  of  several 
lots  of  land  for  the  mutual  benefit  of  three  persons,  A,  B,  C, 
who  agreed  among  themselves  that  A  should  pay  the  pur- 
chase money  to  the  State  for  the  lands  as  the  same  became 
due,  and  should  obtain  the  patents,  and  that  he  should  receive 
the  purchase  money  and  interest  out  of  the  sale  of  the  land, 
and  that  on  the  payment  of  the  money  due  to  him,  he  should 
release  one-third  of  the  land  to  B  and  C,  respectively.  Sub- 
sequently the  executors  and  trustees  of  A  paid  the  purchase 
money  and  received  the  patents.  B  transferred  his  interest  in 
the  land  to  another  person  by  an  absolute  deed,  but  really  as 
security  for  a  debt  of  one  thousand  four  hundred  and  eighty 
dollars.  The  creditor  afterward  sold  his  interest  in  the  land 
to  the  executors  and  trustees  of  A  for  one  thousand  dollars 
only.  The  court  held  that  the  executors  and  trustees  of  A 
took  the  legal  title  to  the  land  as  trustees  for  those  having  a 
beneficial  interest  in  the  land  under  the  agreement,  and  that 
as  the  deed  from  B  was  only  a  mortgage,  such  executors  and 
trustees  of  A  were  entitled  to  hold  the  mortgage  for  the 
amount  which  they  paid  for  it  and  interest,  and  not  for  the 
amount  for  which  it  was  originally  given.^ 

§  1154.     Interests  acquired. — It  is  said  that  in  the  ab- 
sence of  proof  as  to  the  exact  amount  of  money  contributed 

6  Collins  V.  Bartlett,  44  Cal.  371.  conveyed  to  three  of  the  purchasers, 
6  Quackenbush  v.  Leonard,  9  and  they  in  turn  conveyed  to  him 
Paige,  334.  Land  was  purchased  by  their  interest  in  the  other  portions, 
six  persons  who  contributed  equally  which  he  was  to  hold  in  trust  for 
to  the  purchase  price,  and  the  title  himself  and  the  other  two  pur- 
was  placed  in  one  of  the  purchasers,  chasers,  who  paid  equal  portions  of 
who  executed  an  ir.strument  de-  the  bonus  paid  by  them  in  the  par- 
daring  that  he  held  it  in  trust  for  tition.  The  other  two  purchasers 
all,  which  was  not  recorded.  A  were  held  to  have  a  resulting  trust 
partition  was  subsequently  made  in  the  land:  Rogers  v.  Donnellan, 
whereby  one-half  of  the  land  was  11  Utah,  108,  39  Pac.  Rep.  494. 


2176  THE  LAW  OF  DEEDS.  [CHAP.  XXXII. 

by  each  for  tlie  purchase,  the  law  will  presume  that  the  parties 
contributed  equally.'    A  party  may  by  the  same  deed  take  an 
undivided  portion  of  the  land  to  himself  in  his  own  right, 
and  be  charged  as  a  trustee  for  other  portions  of  the  same 
land.    He  subsequently  may  purchase  and  take  a  deed  to  him- 
self of  the  interest  of  some  or  all  of  his  cestuis  que  trust, 
and  then  he  ceases  to  be  a  trustee,  but  becomes  the  absolute 
owner  of  the  share  which  he  purchases.*    Where  A  has  mort- 
gaged his  land  to  B,  with  covenants  of  warranty,  and  sub- 
sequently, having  paid  the  amount  due  on  a  prior  mortgage, 
takes  an  assignment  of  the  mortgage  to  himself,  the  title  which 
he  thus  acquires  would  in  the  absence  of  explanation  inure 
to  the  benefit  of  B.     But  if  the  fact  is  that  C  purchased  the 
prior  mortgage  and  paid  the  consideration,  and  A  after  its 
assignment  to  him  by  a  previous  agreement  assigned  it  to  C, 
or  assigned  it  in  blank  and  delivered  it  to  C,  with  power  to 
fill  the  blank,  the  assignment  to  A  being  clearly  for  the  benefit 
of  C,  an  implied  resulting  trust  in  his  favor  at  once  arises 
and  attaches  to  the  assignment  made  by  the  first  mortgagee  to 
A.     If,  however,  a  part  of  the  money  was  paid  by  A  and  a 
part  by  C,  the  trust  in  favor  of  C  extends  only  to  the  amount 
paid  by  him.®     If  an  agreement  is  made  by  two  proprietors 
of  land,  that  one  of  them  shall  under  a  certain  statute  purchase 
an  adjoining  tract  of  government  land,  and  that  both  shall 
furnish  an  equal  sum  of  money  to  pay  the  price,  and  that 
the  one  who  enters  shall  convey  one  half  of  the  land  to  the 
other,  and  he  enters  under  this  agreement,  a  resulting  trust 
arises  in  favor  of  the  one  advancing  one  half  the  money,  as 
to  one  half  of  the  land.* 

■^  Slioemaker  V.  Smith,  11  Humph.  interest  acquired  is  the  proportion 

(30  Tenn.)    81.  which  the  amount  paid  by  one  bears 

8  Jackson  v.  Moore,  6  Cowen,  706.  to  the  whole  price.    Collins  v.  Cor- 

'Kelley  v.   Jenncss,   50   Mc.  455,  son    (N.  J.   Ch.  Dec  26,  1894),  30 

79  Am.  Dec.  623.  Atl.   Rep.  862. 

1  Cloud  V.  Ivie,  28  Mo.  578.    The 


CHAP.    XXXII.]  DEED  TO  ONE,  MONEY  PAID  BY  ANOTHER.    2177 

§  1155.  Purchase  of  specific  part. — A  resulting  trust 
will  not  arise  in  favor  of  one  of  several  joint  purchasers,  un- 
less his  part  is  some  definite  portion  of  the  whole,  and  the 
money  paid  by  him  is  for  some  aliquot  part  of  the  property.^ 
"Such  a  trust  can  only  arise  in  favor  of  a  person  who  claims 
to  have  furnished  the  consideration  money,  when  such  con- 
sideration or  some  aliquot  part  thereof  was  furnished  as  part 
of  the  original  transaction  at  the  time  the  purchase  was  made. 
The  party  claiming  the  benefit  of  the  resulting  trust,  must 
have  occupied  a  position  originally  which  would  have  entitled 
him  to  be  substituted  in  the  place  of  him  to  whom  the  con- 
veyance has  been  made."  ^  No  resulting  trust  can  arise  where 
the  proportions  paid  by  the  respective  parties  are  uncertain.* 

§  1156.  Deed  taken  by  agent. — If  an  agent  purchases 
property  with  the  money  belonging  to  his  principal  without 
the  latter's  knowledge,  or  if  the  agent  has  the  deed  made  out 
in  his  own  name  against  the  consent  of  the  principal,  a  result- 
ing trust  arises  in  favor  of  the  principal.^  A,  under  a  contract 

8  01cott  V.   Bynum,   17  Wall.  44,  edges  the  receipt  of  the  cansidera- 

21  L.  ed.  570;  Cuttler  v.  Tuttle,  19  tion    from    him    alone,    when    the 

N.   J.   Eq.   561;    McGowan   v.   Mc-  amount  belonging  to   one  and  the 

Gowan,  14  Gray,  119,  74  Am.  Dec.  other   is    uncertain,    and    unknown 

668;  White  v.  Carpenter,  2  Paige,  even  to  those  who  make  the  pay- 

217 ;  Reynolds  v.  Morris,   17  Ohio  ments ;  and  no  satisfactory  evidence 

St.   510;   Baker  v.   Vining,  30   Me.  is    offered    exhibiting    the    portion 

121,    50   Am.    Dec.    617;    Sayre   v.  which  was   really  the  property   of 

Townsends,    15    Wend.    647.      See  each.     The   trust    springs    from    a 

Hidden  v.  Jordan,  21  Cal.  92.  presumption  of  law,  because  the  al- 

3  Perry  v.   McHenry,   13  111.  227,  leged  cestui  que  trust  has  paid  the 

238.  per  Trumbull   J.  money.     Such  presumption  must  be 

*Baker  v.  Vining,  30  Me.  121,  50  attended  with  no  uncertainty.     The 

Am.  Dec.  617.     Said  the  court,  per  whole    foundation   is    the   payment, 

Tenny,  J:     "And  no  case  has  been  and    this    must    be    clearly    estab- 

found  where  a  resulting  trust  has  lished." 

been  held  to  arise   upon  payments  5  Pollansbee    v.    Kilbreth,    17    111. 

made  in  common  by  the  one  assert-  522,    65    Am.    Dec.    691 ;    Pugh    v. 

ing  his  claim,  and  the  grantee  in  the  Pugh,    9    Ind.    132 ;    Day   v.    Roth, 

deed,  wherein  the  grantor  acknowl-  18  N.  Y.  448;  Seichrist's  Appeal,  66 
Deeds,  Vol.  II.— 137 


2178  THE  LAW  OF  DEEDS.  [CHAE.    XXXIL 

for  the  purchase  of  a  lot  from  B,  entered  into  possession,  and 
made  certain  improvements,  but  being  unable  to  meet  the  pay- 
ments, sold  a  part  of  the  lot  to  C  by  parol,  they  both  having 
agreed  upon  the  division  line.  B,  the  owner  of  the  land,  with 
the  consent  of  A,  executed  a  deed  for  the  whole  lot  to  C,  the 
latter  agreeing  with  A  to  hold  the  other  part  of  the  lot  in  trust 
for  A.  and  to  convey  such  portion  to  him  on  the  receipt  of  A's 
share  of  the  purchase  money.  A  continued  in  possession  of  his 
part  according  to  the  line  agreed  upon,  and  upon  C's  refusal  to 
convey,  it  was  held  that  he  held  in  trust  for  A,  and  could  be 
compelled  to  convey.*  The  cestui  que  trust  when  he  discovers 
the  fraud  may  repudiate  the  transaction,  thus  relieving  him- 
self of  his  equitable  title,  or  he  may  waive  the  fraud  and  assert 
his  rights  as  cestui  que  trust;  he  may  also  lose  his  equitable 
title,  by  laches,  fraud,  or  agreement.'  Where  the  agent  takes 
the  title  by  fraud  in  his  own  name,  he  becomes  a  trustee  ex 
malcficio}  An  agent  having  a  sum  of  money  in  his  hands 
belonging  to  his  principal,  wrote  to  her  a  letter  admitting  that 
he  held  the  money  for  investment  on  her  account,  and  re- 
questing a  power  of  attorney  to  invest  the  same,  and  she 
sent  the  power  of  attorney.  There  was  no  other  evidence  to 
show  upon  what  understanding  the  agent  had  received  the 
money.  He  subsequently  invested  the  money  by  buying  real 
estate,  the  deed  for  which  was  made  out  in  his  brother's  name. 
The  court  held  that  the  letter  was  proper  evidence  for  the 
purposes  of  showing  that  the  money  was  held  in  trust,  and 

Pa.  St.  237;  Squire's  Appeal,  70  Pa.  Kluender  v.   Fenske,  53  Wis.  118; 

St.  268;  Bridenbecker  v.  Lowell,  32  Roberts  v.  Haley,  65  Cal.  397. 

Barb.  9.     And  see   Robb's  Appeal,  ^  Seichrist's    Appeal,    66    Pa.    St 

41  Pa.  St.  45;  Eshleman  v.  Lewis,  237.     See,   also,    Gashe   v.    Young, 

49  Pa.  St.  410 ;  Wynn  v.  Sharer,  23  51    Ohio    St.    376,    38    N.    E.    Rep. 

Ind.    573;    Church   v.    Sterling,    16  20. 

Conn.  388;   Farmers'  etc.  Bank  v.  '  Follansbee   v.    Kilbreth,    17   111. 

King,  57  Pa.  St.  202,  98  Am.  Dec.  522,  65  Am.  Dec.  691. 

215;      Moffit     V.      McDonald,      11  8  Squires'  Appeal,  70  Pa.  St.  266; 

Humph.  457;  Bank  of  America  v.  Foilansbee  v.  Kilbreth,  17  111.  522; 

Ppllock,    4    Edw.    Ch.    215.      See  65  Am.  Dec.  691. 


CHAP,    XXXII.]   DEED  TO  ONE,  MONEY  PAID  BY  ANOTHER.    2179 

that  the  agent  was  not  a  mere  debtor,  and  that  the  principal 
had  a  resulting  trust  in  the  property  so  purchased.'  So  where 
the  consideration  for  the  purchase  of  land  is  real  estate  of 
the  principal,  a  trust  in  his  favor  will  result,  where  an  agent 
for  the  purchase  of  real  estate  has  the  deed  made  in  favor 
of  his  wife,  and  such  trust  is  not  affected  by  the  fact  that  the 
principal  had  knowledge  that  the  deed  was  so  executed,  and 
consented  to  the  transaction.* 

§     1157.     Payment    made    with    agent's    funds. — But 

where  an  agent  purchases  land  with  his  own  money,  using 
no  money  of  the  principal,  a  resulting  trust  cannot  be  raised 
by  parol  evidence.  Whatever  trust  there  may  be  in  a  case 
of  this  kind,  does  not  arise  from  the  transaction  itself,  but 
from  the  agreement  between  the  parties,  and  a  trust  created 
by  express  agreement  must,  under  the  statute  of  frauds,  be 
in  writing.  "We  think  the  doctrine  well  sustained  that,  where 
one  man  merely  employs  another  by  parol  as  an  agent  to  pur- 
chase real  property  for  him,  and  the  person  thus  employed 
purchases  the  land  in  his  own  name,  and  no  part  of  the  pur- 
chase money  is  paid  by  the  principal,  and  the  agent  denies 
the  trust,  it  would  directly  overturn  the  statute  of  frauds  to 
admit  any  other  evidence  than  that  which  the  statute  re- 
quires." *     Where  A  agrees  by  parol   with   B  that  he  will 

9  Day  V.  Roth,   18  N.  Y.  448.  J.  Eq.  458;  Taliaferro  v.  Taliaferro, 

iBostleman  v.  Bostleman,  24  N.  6  Ala.  406;   Minot  v.   Mitchell,  30 

J.  Eq.  103.  Ind.  228,  95  Am.  Dec.  685 ;  Heacock 

2  Burden    v.    Sheridan,    36    Iowa,  v.   Coatsworth,   Clarke,  84;   Fowke 

125,  134,  14  Am.  Rep.  505,  per  Mil-  v.    Slaughter,   3    Marsh.    A.   K.   57, 

ler,  J.,  who  examines  several  of  the  13  Am.  Dec.  133;  Walker  v.  Brun- 

cases  at  length.     See,  also,  Dorsey  gard,  13  Smedes  &  M.  765;  Moore 

V.   Clarke,  4  Har.  &  J.   551;   Ken-  v.   Green,  3   Mon.    B.  407;   Arnold 

nedy  v.   Keating,  34  Mo.  25;   Pin-  v.  Cord,  16  Ind.  177;  Woodhull  v. 

nock   V.    Clough,    16   Vt.    500,    507,  Osborne,    2    Edw.    Ch.    615;    Jack- 

42  Am.  Dec.  521;  Pearson  v.  East,  mar>  v.  Ringland,  4  Watts  &  S.  149; 

36  Ind.  28;  Flagg  v.  Mann,  2  Sum.  Lathrop  v.  Hoyt,  7  Barb.  60;  Lamas 

486,  546;   Nestal  v.   Schmid,  29  N.  v.   Bayly,  2  Vern.  627;   O'Hara  v. 


2180  THE  LAW  OF  DEEDS.  [CHAP.    XXXII. 

attend  a  sale  of  B's  farm  under  a  decree  of  foreclosure,  bid 
off  the  premises,  take  a  deed  in  his  own  name,  and  agrees 
to  let  B  have  an  opportunity  to  repay  the  amount  bid,  and 
secure  a  reconveyance,  the  agreement  it  is  held  is  void,  as 
being  within  the  statute  of  frauds,  and  B  has  no  resulting 
trust.'  And  where  a  guardian  who  is  indebted  to  his  ward 
purchases  land,  declaring  it  to  be  for  the  ward,  and  putting 
the  ward  in  possession,  but  paying  for  the  land  with  his 
own  money  and  taking  the  title  in  his  own  name,  no  resulting 
trust  arises,  and  the  ward  has  no  title  to  the  land  when  no 
proof  is  made  of  an  agreement  that  the  land  was  to  be  given 
to  the  ward  in  payment  of  the  debt.* 

§  1158.  Agent  at  execution  sale. — But  if  the  principal 
furnishes  the  consideration,  whether  in  money  or  other  prop- 
erty, and  the  agent  takes  the  title  in  his  own  name,  a  result- 
ing trust  is  created.*^  Thus,  a  sheriff  was  about  to  sell  certain 
real  estate  under  an  execution,  and  the  judgment  creditor 
requested  a  person  to  attend  the  sale  as  his  agent,  and  in 
case  the  bids  were  not  in  excess  of  the  judgment,  to  purchase 
the  property,  and  have  the  amount  bid  credited  by  the  sheriff 
on  the  execution.  The  agent  made  a  bid  as  directed,  and  the 
amount  bid  was  credited  on  the  execution,  but  he  took  the 
certificate  of  purchase  in  his  own  name,  instead  of  in  that 
of  the  judgment  creditor,  and  subsequently  received  a  deed. 
The  court  decided  that  he  held  the  title  in  trust  for  the  judg- 
ment creditor.^  Where  a  written  contract  is  made  by  several 
persons  that  one  of  them  shall  purchase  for  the  benefit  of  all, 
land  about  to  be  sold  under  an  execution,  each  to  supply  his 
share  of  the  money,  and  the  purchaser  to  convey  to  each,  one 

O'Neil,  2  Brown  Pari.  C.  39;  At-  *  Taliaferro  v.  Taliaferro,  6  Ala 

kins  V.   Rowe,   Mos.  39;   Rastel   v.  404. 

Hutchinson,  1  Dick.  44;  Bartlett  v.  6  Currey  v.  Allen,  34  Cal.  254. 

Peckersgell,   1   Edg.   515.  6  Currey  v.  Allen.  34  Cal.  254 
8Lathrop  v.   Hoyt,  9  Bart.    '^? 


CHAP.    XXXII.]   DEED  TO  ONE,  MONEY  PAID  BY  ANOTHER.    2181 

of  the  contracting  parties  cannot,  after  the  purchase  is  ef- 
fected, by  securing  another  judgment,  redeem  the  property 
and  obtain  the  title  for  himself.  He  will  become  a  trustee, 
holding  the  legal  title  in  trust  for  all  the  parties  interested  in 
the  contract.'  A  husband  having  given  a  note  for  his  own 
indebtedness,  his  wife,  for  the  purpose  of  securing  its  pay- 
ment, executed  jointly  with  him  a  mortgage  upon  land  which 
he  had  previously  conveyed  to  her  bv  a  deed  of  gift.  This 
deed  was  duly  recorded.  The  mortgage  subsequently  was 
foreclosed,  and  a  person  purchased  the  land  for  the  husband 
with  the  latter's  money,  and  conveyed  the  land  to  him.  For 
the  purpose  of  securing  an  antecedent  indebtedness,  the  hus- 
band afterward  conveyed  the  land  to  one  who  took  without 
actual  notice.  The  act  of  the  husband  in  purchasing  through 
an  agent  was  but  the  payment  of  his  own  debt;  and,  there- 
fore, he  took  the  title  in  trust  for  his  wife.  As  to  the  second 
mortgagee,  the  court  held  that  the  records  were  sufficient  to 
put  him  upon  inquiry,  and  that  he  was  compelled  at  his 
own  risk  to  acquire  information  as  to  the  facts.' 

§  1159.  Partnership  funds. — Where  one  partner  pur- 
chases real  estate  with  partnership  funds,  and  takes  the  deed 
in  his  own  name,  the  other  partners  have  a  resulting  trust 
equivalent  to  their  share  in  the  partnership.  "We  could  not 
deny,"  said  Mr.  Justice  Black,  "the  correctness  of  this  proposi- 
tion, without  saying  that  one  partner  may,  with  the  consent 
of  the  other,  buy  property  for  the  benefit  of  both,  and  after- 
ward appropriate  it  entire  to  his  own  use,  because  he  got 
the  deed  in  his  own  name.  This  would  establish  a  rule  under 
which  one  partner  could  always  cheat  another  out  of  his  own 
share.  It  would  be  a  premium  on  bad  faith,  and  the  highest 
reward  that  could  be  offered  for  the  violation  of  bargains, 
and  the  disregard  of  justice,  truth,  and  conscience."  ^    Under 

t  Jenkins   v.   Frink,  30  Cal.   586.  »  Hassey  v.  Wilke,  55  Cal.  525. 

gq  ^j^  j)ec.  134,  ®  In  Coder  v.  Huling,  27  Pa.  St. 


2182  THE  LAW  OF  DEEDS.  [CHAP.    XXXII. 

a  verbal  agreement  between  A  and  B  to  purchase  and  improve 
real  estate,  sharing  equally  the  profits  and  losses,  two  farms 
were  purchased  which  were  conveyed  to  them  jointly.  Their 
agent  contracted  for  a  third  farm  in  his  own  name,  but  A, 
without  B's  knowledge  or  consent,  had  the  contract  assigned 
to  himself,  and  secured  a  conveyance  of  the  farm.  Both  A 
and  B  made  permanent  improvements  at  various  times  upon, 
and  purchaseed  cattle  for,  each  of  the  farms.  They  treated 
all  three  farms  alike,  and  B,  with  A's  knowledge,  superintend- 
ed work  performed  upon  the  third  farm,  and  made  payments 
therefor.  Both  A  and  B  visited  such  farms  together,  and  had 
various  conversations  relative  to  the  disposition  of  an  interest 
therein,  and  A  did  not  at  any  time  intimate  that  B  was  not 
also  as  to  this  farm  a  joint  owner,  and  B  advanced  money  at 
different  times  on  account  of  purchases  for  all  three  farms. 
The  court  held  that  A  having  taken  title  to  such  third  farm, 
in  fraud  of  the  rights  of  B,  the  latter  had  a  resulting  trust 
therein,  and  that  it  was  unnecessary  for  him  to  seek  a  dissolu- 
tion of  the  partnership  and  an  accounting,  but  that  he  was 
entitled  to  a  conveyance  from  A  of  an  undivided  interest  in 
the  farm.^     No  resulting  trust  arises  however,  where  there 

84,  88.     See,  also,  Smith  v.  Burn-  Smith    v.    Ramsey,    1    Gilm.    Z72>; 

ham,  2  Sum.  435;  McCully  v.  Mc-  Mallory   v.    Mallory,   5   Bush,  464; 

Cully,     78     Va.     159;     Homer     v.  Ebbert's    Appeal,    70    Pa.    St.    79; 

Homer,  107  Mass.  85;  Richards  v.  Weinrich  v.  Wolf,  24  W.  Va.  299. 

Manson,  101  Mass.  482;  Phillips  v.  See  Warren  v.  Schainwald,  62  Cal. 

Crammond,    2    Wash.    C.    C.    401 ;  56. 

Pugh  V.  Currie,  5  Ala.  446 ;  Baldwin  ^  Traphagen   v.    Burt,   67    N.    Y. 

V.  Johnston,  Saxt.  Ch.  441 ;  Oliver  30,    and    cases    cited.      Where   two 

V   Piatt,  3  How.  401,  11  L.  ed.  652;  brothers    owning    adjoining    farms, 

Winkfield    v.    Brinkman,    21    Kan.  engaged  in  farming  in  partnership 

682;    Edgar   v.   Donnally,  2    Munf.  and  one  of  them  bought  a  tract  of 

387;  Evans  v.  Gibson.  29  Mo.  223,  adjacent  land   under  an  agreement 

77  Am.  Dec.  565;  Turner  v.  Petti-  that   the   north   half   should  belong 

grew,    6    Humph.    438;    Jenkins    v.  to  him   and  the   south   half   to   his 

Frink,  30  Cal.  586,  89  Am.  Dec.  134;  brother,  paying  for  land  with  part- 

Settembre  v.  Putnam,  50  Cal.  400;  nership   funds  and  taking  the  title 

Freeman    v.    Kelly,    Hoff.   Ch.    90;  in   his   own   name,   it   was   decided 


I 


Chap,  xxxii.]  deed  to  one,  money  paid  by  another.  ^183 

is  a  parol  agreement  between  two  persons  to  buy  a  single 
tract  of  land  "in  partnership,"  but  the  transaction  is  consum- 
mated by  one,  to  whom  the  deed  is  made  and  by  whom  the 
consideration  is  paid,  the  other  contributing  nothing,  but 
agreeing  simply  to  contribute  one  half  of  the  purchase  price 
when  demanded  by  the  grantee." 

§  1160.  Guardian  and  ward. — A  ward  has  a  resulting 
trust  in  land  purchased  with  his  money  by  his  guardian,  the 
deed  for  which  is  made  to  the  guardian.^  And  where  the 
deed  acknowledges  the  receipt  of  the  consideration  paid  by 
him,  "guardian  of  the  minor  children"  of  a  person  named, 
but  the  deed  is  made  to  himself,  his  heirs  and  assigns,  without 
referring  in  any  other  mode  to  his  guardianship,  creditors  of 
the  guardian  have  sufficient  notice  that  the  land  is  held  by 
him  in  trust.*  But  if  the  guardian  pay  for  the  land  with 
his  own  money,  declaring  the  purchase  at  the  time  to  be  for 
the  benefit  of  his  ward,  the  latter  cannot  claim  a  trust,  because 
such  a  trust  is  void  by  the  statute  of  frauds.' 

§  1161.  Wife's  separate  property. — The  same  principle 
applies  where  a  husband  takes  a  deed  in  his  own  name  for 

that  he  held  title  to  the  south  half  v.  Robinson,  22  Iowa,  427;  Pillars 

in  trust  for  his  brother:   Van  Bus-  v.  McConnell,  141  Ind.  670;  40  N. 

kirk   V.    Van    Buskirk,    148   111.    9.  E.  Rep.  689.     The  right  to  enforce 

Where   land   belonging   to    a    farm  a  resulting  trust  is  not  defeated  by 

is  conveyed  by  consent  to  one  of  the  fact  that  the  ward  can  sue  at 

the  partners,  the  fact  that  the  land  law  to  recover  the  moneys  used  by 

was  paid  for  by  partnership  funds  the  guardian  in  the  purchase  of  the 

will    not   create   a    resulting   trust :  land  in  his  own  name :    Thompson 

Gunnison  v.  Erie  Dime  Savings  and  v.    Hartling,    105    Ala.   263,    16    So. 

Loan  Co.,  157  Pa.  St.  303.  Rep.  711. 

2  Norton  v.  Brink,  75  Neb.  566,  *  Bancroft  v.  Consen,  13  Allen, 
7    L.R.A.(N.S.)    945,    110    N.    W.  50. 

669.  SKisler  v.   Kisler,  2  Watts,  323, 

3  Bancroft  v.  Consen,  13  Allen,  27  Am.  Dec.  308;  Snell  v.  Elam, 
50;  Caplinger  v.  Stokes,  Meigs,  175;  2  Heisk.  82;  Johnson  v.  Dougherty, 
Puigh  V.   Puigh,    19  Ind.   132;  Lee  18  N.  J.  Eq.  406u 

V.  Fox,  6  Dana,  171.    See  Robinson 


2184  THE  LAW  OF  DEEDS.  [CHAP.    XXXII. 

land  purchased  with  the  separate  property  of  his  wife.  She 
has  a  resulting  trust.^  She  may  elect  to  charge  her  husband 
personally,  or  claim  the  land  as  her  own,  and  if  part  of  her 
funds  only  were  used  in  the  purchase,  she  has  a  resulting  trust 
to  the  extent  of  that  part.'  When  the  husband  has  conveyed 
the  land  so  purchased  to  a  third  person,  who  has  notice  of  the 
manner  in  which  the  husband  acquired  it,  such  third  person 
is  also  chargeable  with  the  trust.  '  Where  a  son  obtains  mon- 
ey from  his  mother  to  purchase  land,  on  the  understanding 
that  he  is  to  take  the  deed  in  his  own  name  and  hold  the 
title  for  her  benefit,  and  the  son  pays  the  money  to  the  vendor, 
and  the  latter,  at  the  request  of  the  son's  wife,  who  has 
knowledge  of  the  acts,  executes  a  deed  to  her,  she  holds  the 
title  in  trust  for  the  mother.'  If  a  husband  purchases  land 
with  his  wife's  money,  and  subsequently  sells  and  exchanges 
it  for  another  tract  of  land,  she  still  has  a  right  to  pursue 
her  money,  and  to  fasten  a  trust  on  the  land  received  by  the 

SGoldsberry   v.   Gentry,   92   Ind.  'Tilford  v.  Torrey,  53  Ala.  120. 

193;  Fillman  v.  Divers,  31  Pa.  St.  What  her  rights  under  the  rule  at 

429 ;  Kline's  Appeal,  39  Pa.  St.  463 ;  the    common    law    would    be,    see 

Tilford    V.    Torrey,    53    Ala.    120;  Waldrow  v.  Sanders,  85  Ind.  270; 

Pritchard  v.  Wallace,  4  Sneed,  405,  Westerfield  v.  Kimmer,  82  Ind.  365. 

70  Am.    Dec.   254;    Pinney   v.   Pel-  8  ^Jethodist   Episcopal    Church  v. 

lows,  15  Vt.  525;  Resor  v.  Resor,  Jacques,   1  Johns.  Ch.  450. 

9  Ind.  347;   Barron  v.  Barron,  24  » Wormouth   v.  Johnson,  58  CaL 

Vt.  375;  Davis  v.  Davis,  46  Pa.  St.  622.     Where  two  parcels  of   land, 

342;    Raybold   v.   Raybold,   20   Pa.  descending    to    a    wife    and    other 

St.  308;  Woodford  v.  Stephens.  51  heirs,  are  bid  in  at  an  auction  by 

Mo.  443 ;   Darkin  v.  Darkin,  23  L.  her  husband,  and  one  of  the  parcels 

J.  Ch.  890;  Lench  v.  Lench,  10  Ves.  is  paid   for  by  crediting  him  with 

511;     Wallace    v.     McCullough,     1  the  wife's  distributive  share  of  the 

Rich.  Eq.  426;  Carter  v.  Bolin  (Tex.  estate,    he    holds    such    parcel    as 

App.,  May  15,  1895),  30  S.  W.  Rep.  trustee  for  his  wife,  but  he  is  not 

1084;    Berry   v.    Wiedman,   40   W.  a   trustee    as    to    the    other   parcel 

Va.  36,  20  S.  E.  Rep.  817;  Howard  which  he  paid  for  in  cash,  with  the 

v.   I-Ioward,  52  Kan.  469;  Irick  v.  money    either    of    himself    or    his 

Clement,    49    N.   J.    Eq.    590.      See  wife :    Cooksey  v.  Bryan,  2  App.  D. 

Parker  v.  Coop,  60  Tex.  Ill ;  Derry  C.  557. 
V.  Derry,  74  Ind.  560. 


CTIAP.    XXXII.]   DEED  TO  ONE,  MONEY  PAID  BY  ANOTHER.     2185 

husband  in  exchange.*  Where  a  wife  takes  title  in  her  own 
name  to  land  purchased  with  a  fund  belonging  partly  to  the 
husband  and  partly  to  the  wife,  and  she  agrees  on  her  hus- 
band's request  to  convey  to  him,  there  is  a  resulting  trust  in 
his  favor.^  Where  the  wife  consents  to  the  husband  taking 
the  title  in  his  own  name,  for  convenience,  to  property  pur- 
chased with  her  funds,  she  may  enforce  the  trust  as  against 
creditors  of  the  husband.^  If  a  father  purchases  land  for 
his  married  daughter,  but,  through  error,  the  husband  is  named 
as  grantee  in  the  conveyance,  a  trust  will  arise  in  her  favor.* 


1  Walker  v.  Elledge,  65  Ala.  51. 
See  English  v.  Law,  27  Kan.  242. 

2  Harden  v.  Darwin,  66  Ala.  55. 
*City  Nat.  Bank  v.  Hamilton,  34 

N.  J.  Eq.  158. 
*  dinger  v.  Shultz,  183  Pa.  469, 

38  Atl.  1024.  See,  also,  Lord  v. 
Bishop,  101  Ind.  334.  Cases  are 
numerous  in  which  a  trust  has  been 
declared  in  favor  of  a  wife  when 
the  title  to  property  purchased  with 
her  money,  has  been  taken  in  the 
name  of  her  husband.  See  Garner 
V.  Second  Nat.  Bank,  151  U.  S. 
420,  38  L.  ed.  218,  14  Sup.  Ct.  Rep. 
390;  Thames  v.  Herbert,  61  Ala. 
346 ;  Nettles  v.  Nettles,  67  Ala.  601 ; 
Brown  v.  Wright,  58  Ark.  20,  21 
L.R.A.  467,  22  S.  W.  1022;  Booth 
V.  Lenox,  45  Fla.  191,  34  So.  566; 
Sasser  v.  Sasser,  TZ  Ga.  275 ;  Bell 
V.  Stewart,  98  Ga.  669,  27  S.  E. 
153;  Burt  v.  Kuhnen,  113  Ga.  1143, 

39  S..  E.  414;  Slocum  v.  Slocum,  9 
111.  App.  142;  Krebaum  v.  Cordell, 
63  111.  23;   Holmes  v.   Clifford,  95 
111.  App.  245;  Barnett  v.  Goings,  8 
Blackf.    284,    44    Am.    Dec.    766 
Malady  ▼.   McEnary,  30  Ind.  273 
Dayton    v.    Fisher,    34    Ind.    356 
Davis  V.  Davis,  43  Ind.  561 ;  Tracy 
V.    Kelley,   52   Ind.   535;    Derry   v. 


Derry,  74  Ind.  560;  Goldsberry  v. 
Gentry,  92  Ind.  193;  Radcliffe  v. 
Radcliffe,  96  Ind.  482;  Mitchell  v. 
Colglazier,  106  Ind.  466,  7  N.  E. 
199;  Pierce  v.  Hower,  142  Ind.  626, 
42  N.  E.  223;  English  v.  Law,  27 
Kan.  242;  Mosteller  v.  Mosteller, 
40  Kan.  658,  20  Pac.  464;  Howard 
V.  Howard,  52  Kan.  469,  34  Pac 
1114;  Miller  v.  Edwards,  7  Bush 
394;  Mallory  v.  Mallory,  5  Bush 
464;  Rath  v.  Rankins,  17  Ky.  L 
Rep.  1120,  ZZ  S.  W.  832;  Brooks  v 
Dent,  1  Md.  Ch.  523;  Gittings  v, 
Winter,  101  Md.  194,  60  Atl.  630 
House  V.  Harden,  52  Miss.  860; 
Greaves  v.  Atkinson,  68  Miss.  598, 
10  So.  11;  Bowen  v.  McKean,  82 
Mo.  594;  Broughton  v.  Brand,  94 
Mo.  169,  7  S.  W.  119;  Owings  v. 
Wiggins,  133  Mo.  630,  34  S.  W. 
877;  Alkire  Grocer  Co.  v.  Ballenger, 
137  Mo.  369,  38  S.  W.  911;  Mc- 
Leod  V.  Venable,  163  Mo.  536,  63 
S.  W.  847;  Irick  v.  Clement,  49 
N.  J.  Eq.  590,  27  Atl.  434;  Mayer 
v.  Kane,  69  N.  J.  Eq.  1ZZ,  61  Atl. 
374;  Methodist  Episcopal  Church 
V.  Jaques,  1  Johns.  Ch.  450;  Cun- 
ningham V.  Bell,  83  N.  C.  328; 
Kirkpatrick  v.  Holmes,  108  N.  C. 
206,  12  S.  E.  1037;  Ross  v.  Hendrix, 


2186  THE  LAW  OF  DEEDS.  [CHAP.    XXXIt. 

§  1161a.  Protection  of  wife's  rights. — Where  land  is 
purchased  by  a  husband  with  money  belonging  to  his  wife, 
and  the  title  is  placed  in  his  name  without  her  consent,  the 
trust  arising  in  her  favor  will  be  protected  against  the  claims 
of  the  creditors  of  the  husband,  unless  the  debts  were  con- 
tracted on  the  faith  of  his  ownership  of  the  property.^  It 
is  not  essential,  to  create  a  resulting  trust  in  favor  of  a  wife, 
that  the  purchase  money  should  have  been  paid  at  the  time 
the  land  was  purchased,  but  the  trust  will  arise  if  it  be  paid 
as  installments  or  as  encumbrances  fall  due,  in  conformity 
with  a  contract  of  purchase  and  under  an  agreement  that  she 
is  to  recover  so  much  as  she  pays  for.®  But  if  a  wife  lends 
money,which  constitutes  part  of  her  separate  estate,  to  her 
husband  to  complete  the  payment  due  for  a  tract  of  land, 
and  he  agrees  that  the  debt  shall  be  a  charge  upon  the  land 
until  paid,  the  debt  at  his  death  is  not  entitled  to  priority 
or  Hen  over  other  unsecured  claims  against  his  estate.'  Nor, 
where  there  has  been  a  lapse  of  several  years  during  which 
the  wife  has  remained  silent,  and  she  has  not  asserted  her 
claim  until  after  her  husband's  death,  and  it  appears  that 
the  contribution  made  by  the  husband  greatly  exceeded  that 
made  by  the  wife,  although  he  may  have  promised  to  take  the 
deed   in  her   name,   a   resulting   trust   will   not  be   decreed.' 

110  N.  C.  403,  15  S.  E.  4;  Sessions  County,    1     Tenn.     Ch.    App.     18; 

V.  Trevitt,  39  Ohio  St.  259;  Linn-  John     v.     Battle,     58     Tex.     591; 

ville  V.   Smith,  6  Or.  202;   Rupp's  Blum  v.  Rogers,  71  Tex.  676,  9  S. 

Appeal,  100  Pa.  531 ;  Heath  v.  Slo-  W.  595 ;  Berry  v.  Wiedman,  40  W. 

cum,  115  Pa.  549,  9  Atl.  259;  7.ogan  Va.   36,   52   Am.    St.    Rep.   866,   20 

V.   Eva,   144  Pa.  312,  22  Atl.   757 ;  S   E.  817 ;  Standard  Mencantile  Co, 

Light  V.  Zeller,  144  Pa.  570,  22  Atl.  v.   Ellis,  48  W.   Va.  309,  37  S,  E. 

1029;  Light  v.  Zeller,   144  Pa.  582.  593. 

22  Atl.  1025;  Young  v.  Senft,  153  5  Hews  v.   Kenney,  43   Neb.  815. 

Pa.    353,    25    Atl.    778;    Miller    v.  6  Gilchrist  v.  Brown,  165  Pa.  St. 

Baker,  166  Pa.  414,  45  Am.  St.  Rep.  295,  44  Am.  St.  Rep.  664. 

680,  31  Atl.  121;  Lloyd  v.  Woods,  "^  Lof tis  v.  Loftis,  94  Tenn.  232. 

176    Pa.    63,    34    Atl.    926;    Dun-  « Schierloh  v.  Schierloh,  72  Hun, 

bach    V.    Bishop,    183    Pa.    602,  39  150. 
AtL     38;     Burnett     v.     Campbell 


CHAP.    XXXII.]   DEED  TO  ONE,  MONEY  PAID  BY  ANOTHER.    2187 

Where  a  husband  took  the  title  to  property  in  his  own  name, 
which  was  purchased  with  his  wife's  funds,  he  assuring  her 
that  he  had  made  provision  for  her  protection,  she  may  after 
his  death  assert  her  claim,  and  the  statute  of  limitations  will 
not  begin  to  run  against  her  until  the  trust  has  been  re- 
pudiated.® If  a  husband  buys  property  with  his  wife's  money, 
a  resulting  trust  is  presumed,  and  if  he  claims  that  she  in- 
tended to  make  a  gift,  he  has  the  burden  of  proof.* 

§  1162.  Trust  funds,  generally. — The  preceding  sec- 
tions are  but  illustrations  of  the  general  rule  that  when  any 
person  occupying  the  position  of  a  trustee  purchases  land 
with  trust  funds,  taking  a  deed  in  his  own  name,  the  bene- 
ficiary may  claim  the  benefit  of  the  purchase.  This  rule  pre- 
vails with  respect  to  all  who  occupy  a  fiduciary  character. 
Thus,  an  administrator  or  executor,  purchasing  land  with 
the  property  of  the  estate,  holds  as  a  trustee  for  those  bene- 
ficially interested  in  the  estate.^  So  with  respect  to  the  com- 
mittee of   a   lunatic, '   or  to   the  trustee   of   a  corporation.* 

9  Smith  V.  Smith,  132  Iowa,  700,  561 ;  Barker  v.  Barker,  14  Wis.  131 ; 

109  N.  W.   194,   119  Am.  St.  Rep.  Schaffner  v.  Grutzmacher,  6  Clark, 

581.  137;  Williams  v.   Hollingsworth,   1 

1  Berry  v.  Weidman,  40  W.  Va.  Strob.  Eq.  103,  47  Am.  Dec.  527; 
36,  52  Am.  St.  Rep.  866;  Evans  v.  Harper  v.  Archer,  28  Miss.  212; 
Welborn,  74  Tex.  530,  15  Am.  St.  Wallace  v.  Duffield,  2  Serg.  &  R. 
Rep.  858;  Grantham  v.  Grantham,  521,  7  Am.  Dec.  660;  Seaman  v. 
34  S.  C.  504,  27  Am.  St.  Rep.  839;  Cook,  14  111.  501.  And  see  Roberts 
Hanley  v.  Legg,  129  Ala.  619,  30  v.  Opp,  56  111.  34;  Musham  v.  Mush- 
So.  34,  87  Am.  St.  Rep.  81;  Miller  am,  87  111.  80;  Fox  v.  Doherty,  30 
V.  Baker,  166  Pa.  St.  414,  45  Am.  Iowa,  334;  Kirkpatrick  v.  McDon- 
St.  Rep.  680;  Beam  v.  Bridges,  108  aid,  11  Pa.  St.  387;  Hancock  v. 
N.  C.  276,  23  Am.  St.  Rep.  59.  Titus,  39  Miss.  224;  Valle  v.  Bry- 

2  Stow  V.  Kimball,  28  111.  93;  an,  19  Mo.  423;  Neill  v.  Keese,  13 
Dodge  V.  Cole,  97  111.  338,  37  Am.  Tex.  187;  Harrisburg  Bank  v.  Ty- 
Rep.  Ill;  Garrett  v.  Garrett,  1  ler,  3  Watts  &  S.  373;  Wilhelm  v. 
Strob.  Eq.  96;  Buck  v.  Uhrich,  16  Folmer,  6  Pa.  296. 

Pa.  St.  490 ;  White  v.  Drew,  42  Mo. 


2188 


THE  LAW  OF  DEEDS. 


[chap.  xxxn. 


It  is  sufficient  if  the  general  character  of  the  trust  fund  can 
be  identified.^  A  person  died  leaving  surviving  him  a  widow 
and  four  children,  and  the  widow  administered  on  his  es- 
tate and  managed  it  for  thirty-seven  years.  She  at  first,  in 
the  joint  names  of  herself  and  children,  and  subsequently 
in  her  own  name,  with  their  assent  and  knowledge,  invested 
and  reinvested  the  proceeds,  and  she  furnished  all  the  sup- 
plies for  the  family,  they  all  living  together.  It  was  held  that 
the  widow  was  to  be  treated  as  a  trustee  in  these  invest- 
ments for  those  interested  in  the  estate.®  If  a  trustee  pur- 
chase an  interest,  the  retention  of  which  by  him  would  mater- 
ially affect  the  trust  property,  he  holds  it  in  trust  for  the 
cestui  que  trust.''    Where  trust  land  is  exchanged  by  a  trustee 


8  Buffalo  R.  R.  Co.  v.  Lamson, 
47  Barb.  533;  Reid  v.  Fitch,  11 
Barb.  399;  Turner  v.  Pettigrew,  6 
Humph.  438.  See  Hannett's  Ap- 
peal, 72  Pa.  St.  337. 

*  Methodist  Episcopal  Church  etc. 
V.  Wood,  5  Ohio,  283;  Church  v. 
Sterling,   16  Conn.  388. 

6  Campbell  v.  Walker,  5  Ves.  678; 
Sanderson  v.  Walker,  13  Ves.  601 ; 
United  States  v.  Waterborough, 
Davies,  154;  Overseers  of  the  Poor 
V.  Bank  of  Virginia,  2  Gratt.  544, 
44  Am.  Dec.  399;  De  Bevoise  v. 
Sanford,  Hoff.  Ch.  194;  Downes  v. 
Grazebrook,  3  Mer.  200;  McLarren 
V.  Brewer,  51  Me.  402.  And  see 
Thompson's  Appeal,  22  Pa.  St.  16. 

8  Seaman  v.  Cook,  14  III.  501. 
"Any  application  or  appropriation 
of  these  funds  to  her  sole  use  and 
benefit  would  be,  by  our  law,  a  vio- 
lation of  her  trust,  and  it  will  not 
lie  in  her  mouth,  or  avail  to  allege 
a  breach  of  confidence  and  a  vio- 
lation of  trust  and  duty,  as  the 
ground  of  title  to  her  principal's 
estate.      For    if    these    investments 


were  not  made  for  the  use  of  the 
principals,  but  her  own,  it  was  a 
breach  of  trust,  a  misapplication  of 
their  money,  and  a  violation  of  her 
duty.  This  the  law  will  not  pre- 
sume to  have  been  the  intention, 
but  will  treat  it  as  a  resulting  trust 
to  the  owners  of  the  money."  See, 
also,  Wallace  v.  Duffield,  2  Serg. 
&  R.  529,  7  Am.  Dec.  660. 

7  Jenkins  v.  Frink,  30  Cal.  586,  89 
Am.  Dec.  134;  Settembre  v.  Put- 
nam, 30  Cal.  490;  Campbell  v. 
Campbell,  21  Mich.  438;  Van  Epps 
V.  Van  Epps,  9  Paige,  237 ;  Dickin- 
son V.  Codwise,  1  Sand.  Ch.  226; 
Holmes  v.  Campbell,  10  Minn.  401 ; 
Heath  v.  Page,  63  Pa.  St.  108,  3 
Am.  Rep.  533;  Hall  v.  Vanness,  49 
Pa.  St.  457;  Harold  v.  Lane,  53 
Pa.  St.  269;  Torrey  v.  Bank  of 
Orleans,  9  Paige,  649;  Clark  v. 
Cantwell,  3  Head,  302;  Holt  v. 
Holt,  1  Ch.  Cas.  Ch.  190;  Tanner 
V.  Elworthy,  4  Beav.  487 ;  Geddings 
v.  Geddings,  3  Russ.  241 ;  Nesbitt 
V.  Tredennick,  1  Ball  &  B.  46. 
Where  a  trustee  pays  half  the  pur- 


CHAP.    XXXII.]  DEED  TO  ONE,  MONEY  PAID  BY  ANOTHER.    2189 

for  other  land  with  the  beneficiary's  consent,  the  trust  arising 
may  be  estabHshed  by  parol  evidence.' 

§  1163.  Attorney's  knowledge  of  defect  in  judicial  pro- 
ceedings.— Where  an  attorney  conducts  a  suit  to  obtain 
the  title  to  land  for  his  cHent,  the  title,  however,  by  reason 
of  defects  in  the  proceedings  not  passing,  and  the  attorney, 
after  the  relation  of  attorney  and  client  had  ceased,  having 
discovered  such  defects,  purchases  the  property  for  the  benefit 
of  another,  the  original  client  and  such  purchaser  are  to  be 
deemed  strangers.  Hence,  in  the  absence  of  actual  fraud, 
the  legal  title  is  not  held  in  trust.^ 

§  1164.  Investment  of  stolen  money. — Where  a  clerk 
steals  goods  or  money  from  the  store  of  his  employer,  and 
invests  the  same  in  land,  it  is  held  that  the  employer  can 
hold  neither  the  clerk  nor  his  representatives,  after  his  death, 
as  trustees,  so  as  to  secure  a  conveyance  to  himself  of  the 
legal  title.^  "It  is  not  at  all,"  said  Ruffin,  C.  J.,  "like  the 
cases  of  dealings  with  trust  funds  by  trustees,  executors, 
guardians,  factors,  and  the  like,  in  which  the  owner  of  the 
fund  may  elect  to  take  either  the  money  or  that  in  which  it 
was  invested.  For,  in  all  those  cases,  the  legal  title,  if  we 
may  use  the  expression,  of  the  fund,  is  in  the  party  thus 
misapplying  it.  He  has  been  intrusted  with  the  whole  pos- 
session of  it,  and  that  for  the  purpose  of  laying  it  out  for 
the  benefit  of  the  equitable  owner;  and,  therefore,  all  the 
benefit  and  profit  the  trustee  ought,  in  the  nature  of  his  office, 
and  from  his  relation  to  his  cestui  que  trust,  to  account  for 

chas«  price  of  land  with  trust  funds,  ^  Learned  v.  Haley,  34  Cal.  608. 

but   subsequently   accounts    for  the  l  Campbell  v.  Drake,  4  Ired.  Eq. 

same  the  land  is  not  subject  to  a      94;  Pascoag  Bank  v.  Hunt,  3  Edw. 
resulting    trust:       In    re    Ricker's      Ch.  583. 
Estate,  14  Mont.  153. 

8  Francis  v.  Cline,  96  Va.  201,  31 
S.  E.  10. 


2190  THE  LAW  OF  DEEDS.  [CHAP.    XXXII. 

to  that  person.  But  the  case  of  a  servant  or  shopkeeper  is 
very  different.  He  is  not  charged  with  the  duty  of  investing 
his  employer's  stock,  but  merely  to  buy  and  sell  at  the  counter. 
The  possession  of  goods  or  money  is  not  in  him  but  in  his 
master;  so  entirely  so  that  he  may  be  convicted  of  stealing 
them,  in  which  both  a  cepit  and  asportavit  are  constituents. 
This  person  was,  in  truth,  guilty  of  a  felony  in  possessing 
himself  of  the  plaintiff's  effects  for  the  purpose  of  laying 
them  out  for  his  own  lucre;  and  that  fully  rebuts  the  idea 
of  converting  him  into  a  trustee.  If  that  could  be  done, 
there  would  be  at  once  an  end  to  punishing  thefts  by  shop- 
men. If,  indeed,  the  plaintiff  could  actually  trace  the  identical 
money  taken  from  him  into  the  hands  of  a  person  who  got 
it  without  paying  value,  no  doubt  he  could  recover  it,  for 
his  title  was  not  destroyed  by  the  theft.  But  we  do  not  see 
how  a  felon  is  to  be  turned  into  a  trustee  of  property  merely 
by  showing  that  he  bought  it  with  stolen  money.  If  it  were 
so  there  would  have  been  many  a  bill  of  the  kind.  But  we 
believe  there  never  was  one  before,  and  therefore  we  cannot 
entertain  this."  ' 

§  1165.  Comments. — Of  course,  there  are  some  diffi- 
culties connected  with  this  question.  A  suit  to  charge  the 
purchaser  with  a  trust  under  these  circumstances,  renders 
it  necessary  to  inquire  into  the  commission  of  a  criminal 
offense.  But  it  would  seem  on  well-established  equitable 
principles,  where  it  can  be  proven  that  the  identical  prop- 
erty was  used  in  the  purchase  of  the  land,  that  the  purchaser 
should  be  held  to  be  a  trustee.  The  general  rule  in  regard 
to  stolen  property  is  that  the  owner  is  not  divested  of  his 
title,  and  his  rights  to  a  recovery  are  not  impaired  by  a 
transfer  to  a  bona  fide  purchaser.'     And  it  seems  to  us  that 

2  In   Campbell  v.   Drake,  4  Ired.  ^  Bassett   v.    Spofford,   45    N.    Y. 

Eq.  94.  But  see  Wills,  Fargo  &  387,  6  Am.  Rep.  101;  Newton  v. 
Co.  V.  Robinson,  13  Cal.   133.  Porter,    5    Lans.    417;    Silsbury   v. 


CHAP.    XXXII.]   DEED  TO  ONE,  MONEY  PAID  BY  ANOTHER.     2191 

if  the  identity  of  the  stolen  property  with  the  consideration 
for  the  purchase  can  be  proven,  the  person  who  has  converted 
stolen  property  into  real  estate  should  be  considered  as  holding 
such  land  for  the  owner,  to  the  same  extent  as  if  the  original 
stolen  property  had  never  left  his  possession.  The  question 
seems  to  be  one  of  evidence,  of  proof,  rather  than  one  of 
tlie  existence  of  an  equitable  right,  which,  we  think,  in  the 
interests  of  justice  ought  not  to  be  denied.* 

§  1166.  Surrender  of  contract  for  purchase  of  real  es- 
tate.— A  entered  into  an  agreement  with  the  subagent  of 
the  trustees  of  an  estate  for  the  purchase  of  a  piece  of  land, 
and  after  making  a  part  payment  and  improving  a  portion 
of  the  land,  sold  his  right  to  B,  who,  in  the  year  following, 
died,  leaving  as  his  heirs  a  widow  and  minor  children.  B's 
widow  surrendered  the  original  contract  made  by  A,  the 
right  to  which  was  purchased  by  her  husband,  and  had  a  new 
contract  for  the  purchase  of  the  land  executed  to  her  in  her 
own  name.  She  transferred  the  contract  thus  obtained  to  C, 
who  surrendered  this  one  likewise,  and  took  out  a  new  con- 
tract in  his  own  name.  It  was  held  that  by  taking  the  new 
agreement  the  widow  occupied  the  relation  of  trustee  for  the 
heirs  of  her  husband,  and  that  her  vendee  having  knowledge 
of  the  condition  of  the  title,  and  of  A's  possession,  stood  on 
the  same  footing,  which  was  not  altered  by  the  surrender 
of  the  contracts,  and  the  execution  of  new  ones  by  the  owner 
of  the  legal  title.^  And  where  a  widow  in  possession  of 
premises  for  which  a  deed  had  been  made  to  her  husband, 
but  which  is  defective  for  want  of  a  proper  description, 
has  a  deed  executed  to  her  to  cure  such  defect  without  the 

McCoon,  3  Comst.  379,  53  Am.  Dec.  lock,  4  Edw.  Ch.  215.     And  see  the 

307 ;  Thompson  v.  Parker,  3  ]\Iason,  late  case  of  Grouch  v.  Hazelhurst 

382;  Hoffman  v.  Carow,  22  Wend.  Lumber  Co.  (A/Iiss.,  Nev.  12,  1894), 

285.  16  So.  Rep.  496. 

*  See   Bank  of   America   v.   Pol-  ^  Hall  v,  Vanness,  49  Pa.  St.  457. 


2192  THE  LAW  OF  DEEDS.  [CHAP.    XXXII. 

payment  of  any  new  consideration,  she  holds  the  title  thus 
acquired  in  trust  for  her  husband's  heirs.^ 

§  1167.  Tenants  in  common. — Where  a  person  claim- 
ing and  exercising  acts  of  ownership  over  a  piece  of  land 
dies,  and  his  possession  descends  to  his  heirs  as  tenants  in 
common,  and  one  of  such  heirs,  who  is  also  executor  of 
the  decedent's  will,  secures  a  deed  in  his  own  name  from  a 
person  claiming  to  have  a  perfect  title,  such  purchaser  can- 
not hold  the  land  against  his  tenants  in  common."'  But  if 
the  tenants  in  common  have  title  to  the  land  in  fee,  and 
one  of  them  buys  an  outstanding  claim  of  title  which  is  void, 
an  implied  trust  as  to  such  void  claim  in  favor  of  his  co- 
tenants  cannot  be  raised  in  the  absence  of  an  agreement  that 
such  purchase  should  be  for  the  use  of  his  cotenants.'  Where 
a  tenant  for  life  in  possession  purchases  an  adverse  title,  the 
purchase  will  be  considered  as  having  been  made  for  the 
benefit  of  himself  and  remainderman  or  reversioner.  He 
cannot  retain  it  for  his  exclusive  benefit  upon  contribution 
from  others  holding  by  way  of  remainder  or  reversion." 

§  1168.  Deed  to  wife  or  child. — Where  the  person  who 
pays  the  consideration  for  the  purchase  of  land  takes  a  deed 
in  the  name  of  his  wife,  or  one  or  more  of  his  children, 
or  of  some  person  to  whom  he  owes  some  moral  or  legal 
obligation,  the  rule  is  that  it  will  be  presumed  that  this  was 
done  as  an  advancement.  It  has  already  been  pointed  out 
that  the  reason  on  which  is  based  the  equitable  principle  of 
resulting  trusts  is  that  the  party,  by  the  payment  of  the  money, 

6  Campbell  v.  Campbell,  21  Mich.  ferred  to  him,  and  the  court  will 

438.  therefore  refuse  to  order  so  vain 

■^  Keller  v.  Auble,  58  Pa.  St.  410,  a  thing  as  the  transfer  of  an  un- 

98  Am.  Dec.  297.  divided  half  of  nothing." 

8  Mandeville  v.  Solomon*  33  Cal.  ^  Whitney  v.  Salter,  36  Mann.  103, 

38.     "It  will  be  of  no  value  to  the  1  Am.  St.  Rep.  656. 
plaintiff,"  said  the  court,  "if  trans- 


CHAP.    XXXII.]  DEED  TO  ONE,  MONEY  PAID  BY  ANOTHER.    2193 

intended  some  benefit  for  himself,  notwithstanding  the  deed 
was  not  taken  in  his  own  name,  but  in  that  of  a  stranger. 
But  when  the  deed  is  made  to  some  person  to  whom  he  is 
under  an  obHgation  to  provide,  this  reason  can  no  longer  be 
urged.  The  contrary  presumption  results  that  he  intended 
the  transaction  to  be  what  it  in  form  is — a  conveyance  to 
the  grantee  for  the  latter's  sole  use  and  benefit.*     "It  is  a 


1  Stanley  v.  Brannon,  6  Blackf. 
193;  Dickenson  v.  Davis,  44  N.  H. 
647;  Thompson  v.  Thompson,  1 
Yerg.  97;  Wehon  v.  Devine,  20 
Barb.  9;  Knouff  v.  Thompson,  16 
Pa.  St.  357;  Douglass  v.  Price,  4 
Rich.  Eq.  322 ;  Fleming  v.  Donahoe, 
5  Ohio,  255;  Miller  v.  Blose,  30 
Gratt.  744;  Guthrie  v.  Gardner,  19 
Wend.  414;  Shaw  v.  Read,  47  Pa. 
St.  96 ;  Shepherd  v.  White,  10  Tex. 
72;  Murless  v.  Franklin,  1  Swanst. 
17;  Lamplugh  v.  Lamplugh,  1  P. 
Wms.  Ill;  Elliott  v.  Eliott,  2  Ch. 
Cas.  Ch.  231 ;  Grey  v.  Grey,  2 
Swanst.  597;  Sidmouth  v.  Sid- 
mouth,  2  Beav.  454;  Dyer  v.  Dyer, 
2  Cox,  93;  Christy  v.  Courtenay,  13 
Beav.  96;  Baker  v.  Leathers,  3  Ind. 
557;  Tremper  v.  Barton,  18  Ohio, 
418;  Cartwright  v.  Wise,  14  111.  417; 
Bennett  v.  Camp,  54  Vt.  36 ;  Wood- 
man v.  Morrell,  2  Freem.  33;  Graff 
v.  Rohrer,  35  Md.  327;  Jackson  v. 
Matsdorf,  11  Johns.  91,  6  Am.  Dec. 
355;  Whitten  v.  Whitten,  3  Cush. 
191;  Dudley  v.  Bosworth,  10 
Humph.  12,  51  Am.  Dec.  690; 
Thomas  v.  Chicago,  55  111.  403 ; 
Gray  v.  Gray,  13  Neb.  453;  Bart- 
lett  V.  Bartlett,  13  Neb.  456; 
Wheeler  v.  Kidder,  105  Pa.  St.  270; 
Dummer  v.  Pitcher,  2  Mylne  &  K. 
612;  Garfield  v.  Hatmaker,  15  N. 
Y.  475;  Johnson  v.  Johnson,  16 
Minn.  512;  Maxwell  v.  Maxwell, 
Deeds,  Vol.  H.— 138 


109  111.  588;  Kline's  Appeal,  39  Pa. 
St.  463;  Murphy  v.  Nathans,  46 
Pa.  St.  508;  Wallace  v.  Bowers,  28 
Vt.  638;  Drew  v.  Martin,  32  Law 
J.  Ch.  367;  Jennings  v.  Selleck,  1 
Vern.  467;  Ebran  v.  Dancer,  2  Ch. 
Cas.  Ch.  26;  Tucker  v.  Burrow,  2 
Hem.  &  M.  525;   Benfer  v.  Drew, 

1  P.  Wms.  780;  Christ's  Hospital 
v.  Budgin,  2  Vern.  683;  Glaister  v. 
Hewer,  8  Ves.  199;  Kingdom  v. 
Bridges,  2  Vern.  67;  Jencks  v. 
Alexander,  11  Paige,  619;  Lady 
Gorges'  Case,  Cro.  Car.  550,  2 
Swanst.   600;    Bedwell   v.    Froome, 

2  Cox,  97;  Back  v.  Andrew,  2 
Vern.  120;  Stevens  v.  Stevens,  70 
Me.  92;  Rumboll  v.  Rumboll,  2 
Eden,  15,  17;  Kilpin  v.  Kilpin,  1 
Mylne  &  K.   556;   Soar  v.  Foster, 

4  Kay  &  J.  160;  Beckford  v.  Beck- 
ford,  Lofft,  490;  Goodright  v.  Hod- 
ges, 1  Watk.  Cop.  228;  Mumma  v. 
Mumma,  2  Vern.  19;  Finch  v. 
Finch,  15  Ves.  50;  Wait  v.  Day,  4 
Denio,  439;    Proseus  v.    Mclntyre, 

5  Barb.  424;  Reid  v.  Fitch,  11  Barb. 
399;  Fatheree  v.  Fletcher,  31  Miss. 
265;  Pole  v.  Pole,  1  Ves.  76;  Part- 
ridge V.  Havens,  10  Paige,  618; 
Page  v.  Page,  8  N.  H.  187 ;  Bodine 
V.  Edwards,  10  Paige,  504;  Astreen 
v.  Flanagan,  3  Edw.  Ch.  279; 
Frances  v.  Wilkinson,  147  111.  370; 
Scott  v.  Calladine,  79  Hun,  79. 


2194  THE  LAW  OF  DEEDS.  [CHAP.    XXXII. 

general  rule,  that  when  a  father  purchases  land  and  takes 
a  deed  to  a  child,  it  is  prima  facie  an  advancement  to  the 
child,  the  law  presuming  such  to  be  the  intention  of  the 
father.  But  this  presumption  may  be  rebutted,  and  wherever 
it  expressly  appears  that  the  parent  intended  that  the  con- 
veyance should  not  be  considered  such,  then  the  child  takes 
a  trust  estate."  ^  This  principle  applies  also  where  the  child 
is  an  adopted  one.^  Where  a  title  bond  for  land  is  executed 
to  father  and  son  upon  the  obligation  of  both  for  the  pur- 
chase money,  the  son  has  an  equitable  estate  in  an  undivided 
half  of  the  land,  which  will  be  an  advancement  to  him  to 
that  extent,  if  the  whole  of  the  purchase  money  is  subse- 
quently paid  by  the  father.*  Any  written  acknowledgment 
by  a  son  in  whose  name  a  deed  has  been  taken  for  land 
purchased  by  the  father  will  rebut  the  presumption  that  the 
conveyance  was  not  intended  as  an  advancement.*  The  law 
will  not  imply  a  trust  in  favor  of  a  husband  paying  for  lands 
conveyed  to  his  wife.^  If  the  title  is  taken  in  the  wife's 
name  the  presumption  is  that  the  transfer  was  intended  as  an 
advancement,  and  not  a  trust.''     Where  an  obligation,  either 

2  Fleming  v.  Donahoe,  5  Ohio,  dren,  and  subsequently  executed  an- 
2S5,  256.  Where  a  father  conveys  other  deed  to  the  same  child,  in  the 
land  to  the  husband  of  his  daughter  entire  absence  of  any  fraud,  it  was 
in  consideration  of  love  and  alTec-  held  that  such  child,  by  virtue  of 
tion  for  her,  no  trust  is  created  in  the  second  deed,  took  the  land  free 
favor  of  herself  or  her  heirs :  Hig-  from  any  trust  in  favor  of  the 
bee  V.  Higbee,  123  Mo.  287.  See,  other  children:  Thompson  v.  Mar- 
also,  Acker  V.  Priest,  92  Iowa,  610,  ley,  102  Mich.  476,  (0  N.  W.  Rep. 
61  N.  W.  Rep.  235.  976. 

3  Astreen  v.  Flanagan,  3  Edw.  Ch.  «  Danforth  v.  Briggs,  89  Me.  316, 
279.  36  Atl.  452. 

4  Thompson  v.  Thompson,  1  Ycrg.  "^  Dornian  v.  Dorman,  187  111.  154, 
(9  Tenn.)  97.  58  N.  E.  235,  79  Am.  St.  Rep.  210; 

6  Shepherd  v.  White,  10  Tex.  72.  Deuter  v.  Deuter,  214  111.  308,  73 

Where  a  father  had  conveyed  land  N.   E.  453 ;    Chambers  v.   Michael, 

to  one  of  his  children,  having  been  71  Ark.  373,  74  S.  W.  516;  Rowe 

fraudulently  induced   to   do   so  by  v.  Johnson.  33   Colo.  469,  81   Pac 

representations  that  the  child  would  268. 
hold  it  in  trust  for  the  other  chil- 


CHAP.    XXXII.]   DEED  TO  ONE,  MONEY  PAID  BY  ANOTHER.    2195 

legal  or  moral,  to  provide  for  the  grantee  rests  upon  a 
person,  the  fact  that  he  advances  money  for  the  purchase 
of  land  in  the  name  of  such  grantee  does  not  raise  a  pre- 
sumption of  a  resulting  trust.*  If  under  such  circumstances 
a  deed  is  taken  in  the  name  of  the  wife,  those  who  claim 
that  a  resulting  trust  as  against  the  wife's  heirs,  was  created, 
have  the  burden  of  proof  to  rebut  the  presumption  that  an 
advancement  was  intended.^  So,  where  a  father  paying  the 
consideration  for  a  tract  of  land  has  the  deed  made  to  his  son, 
it  is  presumed  that  he  intended  a  gift  or  advancement,  but 
satisfactory  evidence  may  overcome  this  presumption.^  But 
it  will  be  necessary  in  such  a  case  to  allege  and  show  facts 
other  than  the  payment  of  the  purchase  money  by  the  father, 
to  rebut  the  presumption.^  Where  a  widow  conveyed  land 
to  some  of  her  children,  the  other  children  who  claim  that 
the  purchase  price  was  obtained  from  the  proceeds  of  person- 
alty bequeathed  to  the  widow  for  life,  with  remainder  to 
all  the  children  without  distinction,  have  the  burden  of  show- 
ing this  fact.^ 

§  1169.     Illustrations. — A  wife  had  a  power  of  attorney 

from  her  husband  by  which  she  had  authority  to  receive 
and  collect  all  money  and  other  property  due  to  him  for  her 
own  use.  She  received  money  under  this  power  of  attorney, 
and  with  it  purchased  land,  taking  the  deed  in  her  own  name. 
After  her  husband's  death,  the  heirs  at  law  of  the  husband 
brought  a  bill  in  equity  against  her  for  a  conveyance  of  the 
land  so  purchased,  alleging  these  facts,  and  also  that  there 

8  McCartney  v.  Fletcher,  11  App.  104  N.  W.  438.    See,  also,  Emfinger 

D.  C.  1.  V.  Emfinger,   137  Ala.  2,i7,  34   So. 

'Dorman  v.  Dorman,  187  111.154,  346;    Cunningham  v.    Cunningham, 

58  N.  E.  235,  79  Am.  St.  Rep.  210.  125    Iowa,    681,    101    N.    W.    470; 

1  Hoon  V.  Hoon,   126  Iowa,  391,  Brown  v.  Brown,  62  Kan.  666,  64 
102  N.  W.  105.  Pac.  599;  Proctor  v.  Rand,  94  Me. 

2  Hoon  V.  Hoon,  supra.  313,  47  Atl.  537;  Helvie  v.  Hoovtc 
«Webb  V.   Webb,   130  Iowa,  457,       11  Okl.  687,  69  Pac.  958. 


2196  THE  LAW  OF  DEEDS.  [CHAP.    XXXH. 

was  no  intention  on  the  part  of  the  husband  that  such  pur- 
chase should  be  a  provision  for  the  wife  or  her  separate 
property.  On  demurrer  to  the  bill  it  was  held  that  the  al- 
legations mentioned  did  not  show  a  resulting  trust  in  favor 
of  the  husband  or  his  heirs.*  A  and  his  wife  conveyed  a 
tract  of  land  for  the  expressed  consideration  of  one  thousand 
dollars  to  B.  On  the  next  day  B  and  wife  reconveyed  the 
same  land  for  the  same  expressed  consideration  to  A's  wife. 
B  prepared  both  these  deeds  at  A's  request  for  the  purpose 
of  conveying  the  land  to  A's  wife.  B  also  at  the  same  time 
prepared  a  will  which  was  properly  executed  by  A's  wife, 
devising  this  same  land  to  her  husband,  A,  for  his  natural 
life,  and  at  his  death  to  her  son  by  a  former  marriage. 
She  died  before  A.  Four  years  after  the  execution  of  the 
original  deeds  A  died,  leaving  a  will  in  which  he  declared 
that  by  B's  mistake  the  deeds  and  will  referred  to  did  not 
carry  out  his  intention,  which  he  stated  was  to  convey  only 
a  life  estate  to  his  wife,  and  he  directed  that  proceedings 
be  commenced  to  cancel  the  deeds.  His  executor  and  de- 
visees brought  a  suit  for  this  purpose  alleging  the  mistake, 
and  charging  fraud  and  undue  influence  on  A's  wife  and 
her  son  in  procuring  the  deeds,  and  prayed  that  the  deeds 
be  set  aside,  and  that  the  court  declare  a  resulting  trust  in 
favor  of  A  and  his  devisees.     It  was  held  that  notwithstand- 

*  Whitten  v.  Whitten,  3  Cush.  191.  of  a  purchaser  by  a  husband  in  the 

Said  Fletcher,  J:     "The  moral  ob-  name  of  his  wife,  and  of  securities 

ligation  of  a  parent  to  provide  for  taken    in    her    name.      Indeed,    Mr. 

his   children   is   the   foundation   of  Justice    Story    says,    that   the    pre- 

this    exception,    or    rather    of    this  sumption  is  stronger  in  the  case  of 

rebutter  of  a  presumption,  since  it  a  wife  than  in  that  of  a  child.     It 

is  not  only  natural,  but  reasonable,  is,    therefore,    an    established    doc- 

to  presume  that  a  parent,  by  pur-  trine,  that  where  the  husband  pays 

chasing    in    the    name    of    a   child,  for    land    conveyed    to    the    wife, 

means  a  benefit  to  the  latter  in  dis-  there  is  no  resulting  trust  for  the 

charge  of  this  moral  obligation,  and  husband ;  but  the  purchaser  will  be 

also  as  a  token  of  parental  aflfec-  regarded    and    presumed   to    be    an 

tion:    2   Story's   Eq.,   §    120.     The  advancement  and  provision  for  the 

like  presumption  exists  in  the  case  wife." 


CHAP.    XXXII.]  DEED  TO  ONE,  MONEY  PAID  BY  ANOTHER.    2197 

ing  no  consideration  passed,  there  was  no  resulting  trust  in 
favor  of  A  and  his  devisees,  and  that  the  declarations  in  A's 
will  could  not  be  received  in  evidence  to  show  his  intention 
in  having  the  deeds  made.^  As  a  father  who  purchases  land 
with  his  own  money,  and  has  the  deed  executed  to  his  idiot 
son,  cannot  subsequently  claim  a  resulting  trust  therein,  and 
that  he  did  not  intend  it  for  his  son's  benefit,  but  for  his 
own  use,  so  a  purchaser  of  such  land  from  the  father  oc- 
cupies no  better  position  than  his  grantor,  and  it  not  entitled 
to  any  relief  in  equity.^ 

§  1170.  Parol  agreement. — Where  land  is  purchased 
by  a  father,  but  by  his  direction,  for  the  purpose  of  de- 
frauding his  creditors,  a  deed  is  made  to  his  son,  while  the 
father  has  no  resulting  trust,  yet  the  fact  that  he  paid  the 
whole  of  the  purchase  money  constitutes  a  good  moral  or 
conscientious  consideration  for  a  subsequent  parol  agreement 
between  the  father  and  grantee  and  another  son  for  the 
partition  of  the  land  between  the  two  sons;  the  grantee  in 
the  original  deed  will  not  be  permitted  to  repudiate  this 
agreement,  and  claim  the  whole  land  under  his  deed,  where 
for  several  years  the  two  sons  have  acted  upon  this  agree- 
ment, and  recognized  the  interest  of  each  other  in  their  re- 
spective divisions,  and,  in  consequence  of  and  reliance  upon 
such    agreement    and    division,    have    made    expenditures.' 

6  Groff   V.    Rohrer,   35    Md.   327.  would  open  too  wide  a  door  for  the 

Where  one  who  has  paid  for  land  revocation  of  advancements  to  those 

causes  the  deed  to  be  made  to  his  who  have  such  a  peculiar  claim  up- 

brother,  an  intended  gift  is  probable,  on  the  bounty  and  protection  of  a 

and   hence    it   does   not   necessarily  father.     The  very  idea  of  selecting 

follow    that    a    trust    will    result:  an    idiot    for   a   trustee    is    absurd. 

Printup  v.   Patton,  91   Ga.  422.  He  must  be  incapable  of  executing 

^  Cartwright  v.  Wise,  14  111.  417.  or  discharging  any  duty  in  relation 

"The  policy  of  the  law,"  said  the  to  it;  and  the  very  suggestion  in- 

court,   "requires   that    such   an   ad-  dicates  insanity,  or  a  contemplated 

vancement  thus  made  to  such  a  par-  fraud  on  the  part  of  the  father." 
ty  should  be  held  to  be  irrevocable  '  Proseus   v.    Mclntyre,   5    Barb, 

by    the    father.      A    contrary    rule  424. 


2198  THE  LAW  OF  DEEDS.  '    [CHAP.    XXXII. 

Where  a  husband  purchases  land,  and  has  the  deed  made  to 
the  wife  for  the  sole  purpose  of  providing  a  home  for  her  in 
case  she  should  survive  him,  his  purpose  being  known  by 
and  assented  to  by  her,  and  there  being  a  mutual  understand- 
ing between  them  that  in  the  event  he  survived  her,  the  title 
to  the  land  should  vest  in  bim  and  should  not  descend  to  her 
heirs,  no  trust,  it  is  held,  arises  in  favor  of  the  husband, 
although  it  was  the  intention  of  both  husband  and  wife  to 
have  the  proper  instrument  in  writing  prepared  and  executed 
for  the  purpose  of  effecting  such  understanding.' 

§  1171.  Where  no  obligation  to  provide  exists. — But 
the  fact  that  a  deed  is  made  to  some  relative  of  the  person 
paying  the  purchase  money  does  not  rebut  the  presumption 
of  trust,  where  there  is  no  obligation  on  the  part  of  the 
person  paying  the  money  to  provide  for  the  grantee,  as,  if 
the  deed  be  made  to  a  brother,  ®  or  to  a  sister.^  Where  a 
woman  cohabiting  with  a  man  to  whom  she  has  not  been 
legally  married,  purchases  land  with  her  own  money,  and 
takes  a  deed  in  the  name  of  the  man,  she  is  entitled  to  en- 
force a  trust,  as  the  parties  are  in  law  strangers  to  each 
other.* 

§  1172.  Presumption  rebutted. — While  it  is  now  an 
established  principle,  as  has  been  shown,  that  where  a  deed 
has  been  taken  in  the  name  of  an  infant  child,  the  pre- 
sumption  is,   that   the  conveyance   was   intended   as   an   ad- 

8  Johnson   v.    Johnson,    16    Minn.  3    Madd.   237;    Lamplugh   v.    Lam- 

512.  plugh,  1   P.  Wms.  Ill;  Jackson  v. 

^  Edwards    v.    Edwards,    39    Pa.  Feller,  2  Wend.  465 ;  Taylor  v.  Al- 

St.    369;    Maddison    v.    Andrew,    1  ston,  2  Cox,  97;  In  re  Visme,  2  De 

Ves.  58;  Foster  v.  Foster,  34  L.  J.  Gex  &  S.  17;  McGovem  v.  Knox, 

Ch.  428.  21   Ohio   St.   547,  8  Am.   Rep.  80; 

1  F"ield  V.  Lonsdale,  14  Jur.  995 ;  Garrett    v.    Wilkinson,   2    De    Gex 

Keaton   v.    Cobb,   1   Dcv.    Ch.   439,  &  S.  2+4. 

18  Am.  Dec.  595.     And  see  as  to  2  McDonald  v.  Carr,  150  IIL  204. 

other   relations,   Edwards  v.   Field, 


CHAP.    XXXII.]  DEED  TO  ONE,  MONEY  PAID  BY  ANOTHER. 


2199 


vancement,^  yet  this  presumption,  however,  may  be  rebutted 
by  evidence  of  such  facts  as  show  that  it  was  not  the  inten- 
tion of  the  grantor  to  make  an  advancement.  If  the  deed 
is  made  to  the  son  by  his  procurement,  without  the  knowledge 
or  consent  of  the  parent,  the  son  cannot  set  up  title  to  the 
land  in  himself  as  an  advancement.  If  the  deed,  however, 
was  made  with  the  consent  of  the  parent,  the  presumption  of 
advancement  may  be  rebutted  by  declarations  of  the  parties, 
and  by  circumstances  contemporaneous  with  the  transaction.* 
It  has  been  held  that  a  bill  by  a  husband  to  establish  a  result- 
ing trust  in  land  bought  by  his  wife  with  money  furnished 


8  Murless  v.  Franklin,  1  Swanst. 
17;  Williams  v.  Williams,  32  Beav. 
370;  Grey  v.  Grey,  2  Swanst.  600; 
Redington  v.  Redington,  3  Ridg. 
App.  190 ;  Kilpin  v.  Kilpin,  1  Mylne 
&  K.  542;  Mumma  v.  Mumma,  2 
Vern.  19;  Stileman  v.  Ashdown,  2 
Atk.  480;  Christy  v.  Courtnay,  13 
Beav.  96;  Paschall  v.  Hinderer,  28 
Ohio  St.  568;  Fox  v.  Fox,  15  Irish 
Ch.  89;  Dyer  v.  Dyer,  2  Cox,  98; 
Collinson  v.  Collinson,  3  De  Gex, 
M.  &  G.  409;   Hayes  v.  Kingdom, 

1  Vern.  34;  Dummer  v.  Pitcher,  2 
Mylne  &  K.  272;  Skeats  v.  Skeats, 

2  Younge  &  C.  Ch.  9 ;  Back  v.  An- 
drew, 2  Vern.  120;  Taylor  v.  Tay- 
lor, 1  Atk.  386;  Lloyd  v.  Read,  1 
P.  Wms.  607;  Scroope  v.  Scroppe, 
1  Ch.  Cas.  Ch.  27;  Finch  v.  Finch, 
15  Ves.  43;  Thompson  v.  Thomp- 
son, 1  Yerg.  97.  At  one  time  it  was 
considered  that  very  slight  circum- 
stances would  rebut  this  presump- 
tion. See  Elliott  v.  Elliott,  2  Ch. 
Cas.  Ch.  231;  Binion  v.  Stone,  2 
Freem.  169;  Dickinson  v.  Shaw,  2 
Cox,  95;  RumboU  v.  Rumboll,  2 
Eden,  17;  Grey  v.  Grey,  2  Swanst. 
600;  Lloyd  v.  Read,  1  P.  Wms.  608; 


Finch  V.  Finch,  IS  Ves.  43;  Pole 
V.  Pole,  1  Ves.  76;  Murless  v. 
Franklin,  1  Swanst.  13.  But  such 
is  not  the  view  now  taken. 

4  Peer  v.  Peer,  3  Stockt  Ch.  432. 
And  the  presumption  as  to  an  ad- 
vancement may  be  rebutted  or  sup- 
ported by  evidence  of  antecedent  or 
contemporaneous  facts :  Williams 
v.  Williams,  32  Beav.  370;  Persons 
V.  Persons:  25  N.  J.  Eq.  250;  Tay- 
lor v.  Taylor,  4  Gilm.  303 ;  Dudley 
V.  Bosworth,  10  Humch.  12,  51  Am. 
Dec.  690;  Butler  v.  M.  Ins.  Co.,  14 
Ala.  777;  Christy  v.  Courtnay,  13 
Beav.  96;  Tucker  v.  Burrow,  2 
Hem.  &  M.  524;  Hayes  v.  Kinders- 
ley,  2  Smale  &  G.  194;  Shales  v, 
Shales,  2  Freem.  252;  Baker  v, 
Leathers,  3  Ind.  558;  Reddington 
V.  Reddington,  3  Ridg.  App.  177 
Hall  V.  Hall,  1  Con.  &  L.  120 
Jackson  v.  Matsdorf,  11  Johns 
91,  6  Am.  Dec.  355.  And  see  Stone 
V.  Stone,  3  Jur.  N.  S.,  708;  Devoy 
V.  Devoy,  3  Smale  &  G.  403;  Hub- 
ble V.  Osborne,  31  Ind.  249;  Wil- 
liams V.  Williams,  32  Beav.  372; 
Tremper  v.  Barton,  18  Ohio,  418. 


2200  THE  LAW  OF  DEEDS.  [CHAP.    XXXII. 

by  him,  stating  that  he  sent  her  the  money  from  a  foreign 
country,  with  instructions  to  purchase  the  premises  and  have 
the  deed  made  to  her,  so  that  in  case  of  death  or  accident 
to  him  while  abroad  she  and  her  children  might  have  a  home, 
but  that  she  was  only  a  nominal  purchaser,  acting  really  as 
his  agent,  and  that  the  property  was  bought  for  and  belonged 
to  him,  and  was  considered  by  them  as  his  and  not  hers, 
and  that  she  made  no  claim  to  it,  and  that  it  was  not  his  in- 
tention that  she  should  have  any  beneficial  interest  except  as 
his  trustee,  does  not  contain  sufficient  averments  to  show  a 
resulting  trust.^  If  the  deed  is  made  to  a  wife  or  child  for 
the  purpose  of  defrauding  creditors,  a  trust  arises  which  the 
creditors  can  enforce.^  The  presumption  that  arises  that  an 
advancement  was  intended,  where  the  conveyance  is  taken  in 
the  name  of  a  wife  or  child,  is  not  one  of  law  but  of  fact  as 
to  intention  and  competent  evidence  may  overcome  itj 

§  1173.  Married  woman  as  agent  of  husband. — If  a 
deed  is  made  to  one  who  pays  no  part  of  the  purchase 
money,  the  purchase  price  being  paid  by  a  married  woman 
as  agent  of  her  husband,  and  the  grantee  named  in  the  deed 

'  Cairns    v.    Colburn,    104    Mass.  Ohio  St.  1 ;  Abney  v.  Kingsland,  10 

274.     See   Cartwright   v.   Wise,    14  Ala.  355;  44  Am.  Dec.  491 ;  Guthrie 

111.  417.    See,  also,  Williard  v.  Wil-  v.  Gardner,  19  Wend.  414;  Crozier 

liard,  56  Pa.  St.  119;  Jeans  v.  Cook,  v.   Young,  3   Mon.   158;   Jencks  v. 

24  Beav.  521;  Pole  v.  Pole,  1  Ves.  Alexander,  U  Paige,  619;  Demaree 

76.  V.  Driskill,  3  Blackf.  115;  Gowing 

8  Lush  V.  Wilkinson,  5  Ves.  384;  v.    Rich,    1    Ired.    553;    Watson    v. 

Rucker  v.  Abell,  8  Mon.  B.  566,  48  Le    Row,   6    Barb.    487;    Cutter   v. 

Am.  Dec.  406;  Townsend  V.  Westa-  Griswold,  Walk.  Ch.  437;   Kimmel 

cott,  2  Beav.  340;  Newell  v.  Mor-  v.   McRight,  2  Pa.  St.  38;   Bell  v. 

gan,    2    Harris,    225;    Stileman    v.  Hallenback,    Wright,    751;    Parish 

Ashdown,  2  Atk.  477;  Christ's  Hos-  v.  Rhodes,  Wright,  339. 
pital  V.  Budgin,  2  Vern.  684;  Doyle  'Deck  v.  Tablet,  41  W.  Va.  332, 

V.  Sleeper,  1  Dana,  531 ;  Elliott  v.  23  S.  E.  721,  56  Am.  St.  Rep.  837. 

Horn,    10   Ala.   348,   44    Am.    Dec.  See,  also,  Johnson  v.  Ludwick,  58 

488;  McCartney  v.  Bostwick,  32  N.  W.  Va.  464,  52  S.  E.  489. 
Y.  53;  Creed  v.  Lancaster  Bank,  1 


CHAP.    XXXII.]  DEED  TO  ONE,  MONEY  PAID  BY  ANOTHER.    2201 

gives  her  a  receipt  for  the  money,  and  also  executes  and 
delivers  to  her  a  written  promise  to  convey  to  her  on  de- 
mand the  land  described  in  the  deed,  and  the  parties  always 
treat  the  property  as  belonging  to  the  husband,  the  grantee 
holds  such  land  in  trust  for  the  husband.  After  the  death 
of  the  husband  intestate  he  may  relieve  himself  from  his 
trust  by  conveying  the  land  to  the  heirs  at  law  of  the  husband, 
and  the  fact  that  one  object  of  having  the  deed  made  to  the 
grantee  was  to  protect  the  land  from  attachment  by  the  credit- 
ors of  the  husband  is  immaterial.^  If  the  land  is  purchased 
by  a  son  with  his  own  money  on  the  understanding  that  the 
deed  is  to  be  made  to  him,  but  through  mistake  the  deed  is 
made  to  the  father,  the  latter  holds  the  legal  title  to  the  land 
in  trust  for  the  son,  and  if  he  conveys  the  property  to  the 
son,  the  conveyance  cannot  be  deemed  fraudulent.* 

§  1174.     Payment  of  purchase  money  by  alien. — If  the 

law  forbids  an  alien  to  hold  land,  he  cannot  do  indirectly 
what  the  law  will  not  permit  him  to  do  directly.  Hence, 
if  he  pays  the  purchase  money,  but  tlie  deed  is  taken  in  the 
name  of  a  stranger,  no  resulting  trust  arises.^  "A  resulting 
trust  is  the  creature  of  equity.  It  is  raised  for  the  benefit  of 
the  party  who,  upon  principles  of  justice  and  the  circum- 
stances of  the  case,  is  entitled  to  the  subject.  Being  raised 
for  his  benefit,  there  can  be  no  motion  for  raising  it,  when 

•Perkins  v.  Nichols,  U  Allen,  Shippen,  Wythe,  139;  Childers,  1 
542.  See  Persons  v.  Persons,  25  N.  De  Gex  &  J.  482.  No  resuhing 
J.  Eq.  250;  Peer  v.  Peer,  3  Stockt.  trust  can  arise  when  contrary  to 
Ch.  432;  Higgins  v.  Higgins,  13  policy  of  the  law,  or  to  some  ex- 
Abb.  N.  C.   13.  press  law:  Ford  v.  Lewis,  10  Mon. 

SFairiiurst  v.  Lewis,  23  Ark.  435.  B.  127;  Cutler  v.  Tuttle,  19  N.  J. 

1  Phillips  V.  Crammond,  2  Wash.  Eq.     562;     Groves     v.     Groves,     3 

C.  C.  441 ;  Hubbard  v.  Goodwin,  3  Younge    &    J.    163 ;    Redington    v. 

Leigh,   492;    Taylor   v.    Benham,   5  Redington,  3   Ridg.  App.    181;    Ex 

How.  233,  270,  12  L.  ed.  130,  148;  parte  Yallop,  15  Ves.  67;  Camden 

Leggett  V.  Dubois,  5  Paige,  114,  28  v.    Anderson,    5    Term    Rep.    709; 

Am.  Dec  413;   Phillpotts  v.  Phill-  Ex  parte   Houghton,   17  Ves.  251; 

potts,    10    Com.    B.    85;    Farley    v.  Proseus  v.  Mclntyre,  5  Barb.  424. 


2202 


THE  LAW  OF  DEEDS. 


[chap.  xxxn. 


that  will  pervert  it  to  his  prejudice.  That  which  is  designed 
as  a  boon  will  not  be  changed  into  a  forfeiture.  To  raise  the 
trust,  and  thereby  forfeit  the  estate,  would  be  to  commit  the 
offense  and  make  the  alien  bear  the  penalty."  ^  But  where 
an  attorney  employed  by  a  firm  composed  of  aliens,  to  col- 
lect a  debt  due  to  the  firm,  compromised  the  indebtedness 
by  taking  land  in  payment,  but  on  account  of  the  alienage 
of  the  partners  took  the  deed  for  the  land  in  his  own  name, 
without  any  directions  from  them,  so  that  he  might  sell  the 
land  and  convert  it  into  money,  and  informed  them  by  letter 
of  what  had  been  done,  and  promised  to  sell  the  land  as 
soon  as  possible,  but  died  before  a  sale  had  been  effected,  and 
his  heirs  sold  the  land  after  his  death,  acting  on  the  belief 
that  the  land  was  theirs,  it  was  held  that  the  proceeds  of 
sale  such  were  personal  property  belonging  to  the  partner- 
ship.^ But  if  the  disability  is  removed,  the  alien  may  enforce 
the  trust.     The  naturalization  has  a  retroactive  effect.* 


8  Hubbard  v.  Goodwin,  3  Leigh, 
492,  512,  per  Tucker,  P.  To  the 
same  effect  are  the  dicta*  of  the 
Chancellor  in  Leggett  v.  Du  Bois, 
5  Faige,  114,  118,  28  Am.  Dec.  413: 
"The  law  will  never  cast  the  legal 
or  equitable  estate  upon  a  person 
who  has  no  right  to  hold  it,  al- 
though an  estate  may,  by  an  ex- 
press contract  or  conveyance,  be 
vested  in  an  alien,  until  office 
found,  for  the  benefit  of  the  peo- 
ple of  the  State.  Where  an  alien, 
therefore,  purchases  land  and  takes 
an  absolute  conveyance  in  tlie  name 
of  the  citizen,  without  any  agree- 
ment or  declaration  of  a  trust,  the 
law  will  not  raise  a  trust  in  favor 
of  the  alien  purchaser  who  cannot 
hold  the  land,  any  more  than  it 
would  cast  it  by  descent  upon  an 
alien  heir  who  cannot  hold  it 
against   the   State.     The   result   in 


such  a  case  must  be,  either  that  the 
nominal  grantee  takes  the  land,  dis- 
charged of  any  trust  by  mere  im- 
plication of  law,  or  that  there  is 
a  resulting  trust  in  behalf  of  the 
people  of  the  State,  which  they 
alone  can  enforce  against  the  gran- 
tee in  the  deed." 

Where  a  slave  purchased  land 
with  the  assent  of  his  master  and 
the  deed  was  made  to  a  free  per- 
son, and  the  slave  afterward  ob- 
tained his  freedom,  it  was  held 
that  a  resulting  trust  in  his  favor 
might  be  enforced :  Leiper  v.  Hoff- 
man, 26  Miss.  615. 

3  Anstice  v.  Brown,  6  Paige,  448. 
See  McCaw  v.  Galbraith,  7  Rich. 
74. 

*  Jackson  v.  Beach,  1  Johns.  Cas. 
399;  Osterman  v.  Baldwin,  6  Wall 
116,  18  L.  ed.  730. 


CHAP.    XXXII.]   DEED  TO  ONE,  MONEY  PAID  BY  ANOTHER,     2203 

§  1175.  Payment  when  title  passes. — A  resulting  trust 
is  never  created  by  the  agreement  of  the  parties,  but  always 
by  implication  of  law,  independently  of  any  agreement.*  In 
order  to  create  a  resulting  trust,  the  money  must  have  been 
advanced  and  invested  at  the  time  the  purchase  is  made.  The 
trust  arises  from  the  execution  of  the  deed  and  conveyance 
of  title,  and  the  parties  must  be  in  such  a  situation  that  a  trust 
will  arise  from  the  transaction  itself  the  instant  at  which 
the  title  passes.^  A  resulting  trust  cannot  be  established  by 
evidence  that  the  grantee  made  an  oral  promise  to  convey 
the  land  to  one  whenever  the  latter  should  repay  to  the  grantee, 
with  interest,  the  money  advanced  for  the  purchase,  when  no 
valid  consideration  for  such  promise  appears,  and  it  is  not 
shown  that  any  part  of  the  purchase  money  was  the  money 
of  the  party  seeking  to  enforce  a  trust."'  An  oral  agreement 
for  the  purchase  of  two  parcels  of  land  on  joint  account  was 
made  between  two  parties  A.  &  B.  By  this  agreement  A. 
was  to  pay  eight-tenths  of  the  purchase  price  of  the  first 
parcel  by  conveying  to  the  owner  land  belonging  to  him, 
and  B  was  to  pay  the  remaining  two-tenths.     The  excess  of 

B  Sheldon  v.  aHrding,  44  111.  68.  97  Pa.  St.  471 ;  Steere  v.  Steere,  5 
6  Buck  V.  Swazey,  35  Me.  41,  56  Johns.    Ch.    1,    9    Am.    Dec.    256; 
Am.  Dec.  681 ;  Case  v.  Codding,  38  Graves  v.  Dugan,  6  Dana,  331;  Kel- 
Cal.  191,  193 ;  Barnard  v.  Jewell,  97  ly  v.  Johnson,  28  Mo.  249 ;   Jack- 
Mass.    87;    Kendall    v.    Mann,    11  son  v.  Moore,  6  Cow.  706;  McGow- 
Allen,    15;    Hunt   v.    Friedman,    63  en  v.   McGowen,    14  Gray,   119,  74 
Cal.  510;  Miller  v.  Blose,  30  Gratt.  Am.  Dec.  668;  Page  v.  Page,  8  N. 
744;   Williard   v.   Williard,   56   Pa.  H.  187;  Du  Val  v.  Marshall,  3  Ark. 
St.  119;  McClure  v.  Doak,  6  Baxt.  230;  Gerry  v.  Stimson,  60  Me.  186 
(Tenn.)  364;  Tunnard  v.  Littell,  23  Fickett  v.  Durham,  109  Mass.  419 
N.  J.  Eq.  264;  Davis  v.  Wetherell,  Taliaferro    v.    Taliaferro,    6    Ala 
11  Allen,  19;  Forsythe  v.  Qark,  3  404;  Wallace  v.   Marshall,  9  Mon 
Wend.  657;  White  v.  Carpenter,  2  B.  148;  Gee  v.  Gee,  2  Sneed,  395 
Paige,  218;  Rhea  V.  Tucker,  56  Ala.  Connor    v.    Lewis,    16    Me.    268 
450;  Wheeler  v.  Kirtland,  23  N.  J.  Rogers   v.    Murray,   3   Paige,   390 
Eq.  13 ;  Nixon's  Appeal,  63  Pa.  St.  Freeman  v.  Kelly,  1  Hoff.  Ch.  90 
279;  Pinnock  v.  Clough,  16  Vt.  500,  Dudley  v.  Batchelder,  53  Me.  403 
42  Am.  Dec.  521 ;  Botsford  v.  Burr,  Foster  v.  Trustees,  etc.,  3  Ala.  302, 
2  Johns.   Ch.  408 ;   Cross's   Appeal,  "^  Barnard  v.  Jewett,  97  Mass. 


2204  THE  LAW  OF  DEEDS.  [CHAP.    XXXII. 

three-tenths  over  A's  half  paid  by  him,  it  was  agreed,  should 
be  applied  toward  his  share  of  the  price  to  be  paid  for  the 
second  parcel.  The  title  to  the  first  parcel  was  taken  in  the 
name  of  both  jointly,  and  A  conveyed  his  land  to  the  grantor 
as  he  had  agreed.  Subsequently  B  bought  the  second  parcel 
with  his  own  money,  and  took  the  deed  for  it  in  his  own 
name.  From  these  facts,  no  resulting  trust,  the  court  held, 
arose  in  favor  of  A  in  the  second  parcel.®  Where  a  deed 
absolute  in  form  is  made,  expressing  no  trust,  but  the  con- 
veyance is  intended  to  be  in  trust  for  the  grantor  and  his 
wife,  no  resulting  trust  arises  from  the  subsequent  payment 
of  money  by  the  grantor's  children.^  But  the  acceptance  of 
a  promissory  note  by  the  grantor  instead  of  money,  may, 
under  some  circumstances,  be  regarded  as  a  payment.^  In 
the  case  just  cited,  A  purchased  a  tract  of  land  and  caused 
it  to  be  conveyed  to  B,  who  signed  a  note  with  him  as  surety 
for  the  purchase  money.  Subsequently,  A  assigned  his  in- 
terest to  C,  as  trustee,  for  the  benefit  of  A's  creditors.  Still 
later,  B  not  being  satisfied,  A  requested  D  to  take  a  deed  of 
the  land  and  hold  it  for  A,  and  to  pay  B  the  amount  of  his 
lien.  This  was  done,  and  C  afterward  brought  a  suit  to 
compel  D  to  convey  to  him  the  land,  tendering  to  him  the 
amounts  of  his,  D's,  payments  to  B.  with  interest.  The 
court  held  that  the  resulting  trust  with  which  the  land  was 
chargeable  in  favor  of  A  inured  also  to  the  benefit  of  C* 
Where  a  husband  procures  his  wife  to  join  with  him  in  a 
mortgage  of  her  land,  under  an  oral  agreement  that  if  the 
land  was  sold  to  pay  the  debt,  the  husband  should  convey  to 
his  wife  his  land,  and  subsequently  the  mortgaged  premises 

8  Fickett   V.   Durham,    109   Mass.  the   purchase,   we   think   the   court 

422.     Said  Ames,  J ;  "The  defend-  cannot  compel  him  to  do  so  upon 

ant  buys   the   estate    A^ith   his   own  this     bill,     without     exceeding     its 

funds,  and  upon  his  own  credit,  and  jurisdiction." 

although  it  may  be  that  ex  csquo  et  ^  Gerry  v.   Stimson,  60  Me.    1S6, 

bono,  he  ought  to  allow  tlie  plain-  ^  Buck  v.  Pike,  11  Me.  9. 

tiff  to  share  in  the  advantages  of  *  Buck  v.  Pike,  11  Me.  9. 


CHAP.    XXXII.]  DEED  TO  ONE,  MONEY  PAID  BY  ANOTHER.    22U5 

were  sold,  the  wife  joining  in  the  deed,  and  from  the  pro- 
ceeds the  mortgage  debts  and  other  debts  of  the  husband 
were  paid,  and,  on  the  same  day,  the  premises  were  sold, 
the  husband  in  pursuance  of  his  oral  agreement  conveyed 
his  land  to  a  trustee  for  his  wife's  use,  but  the  trust  deed 
was  registered  after  the  levy  of  an  execution  upon  the  land 
by  a  creditor  of  the  husband,  it  was  held  that  the  lien  of 
the  execution  was  superior  to  the  rights  of  the  wife  under 
the  conveyance.^ 

§  1176.  Gift  or  loan  to  cestui  que  trust. — If  the  party 
supplying  the  purchase  money  intends  it  as  a  gift  or  a  loan 
to  the  cestui  que  trust,  this  is  sufficient  to  raise  a  resulting 
trust.  It  is  not  necessary  that  the  money  advanced  should 
come  directly  from  the  cestui  que  trust.*  Where  a  minor 
makes  the  first  payment  for  the  purchase  of  a  tract  of  land 
according  to  the  terms  of  the  purchase,  and  is  willing  to 
give  notes  and  a  mortgage  on  the  property  for  the  balance 
due,  but  the  vendor,  for  the  purpose  of  avoiding  the  question 
of  the  vendee's  minority,  executes  a  deed  to  the  mother  of 
such  minor,  and  takes  her  notes  and  mortgage,  with  the 
understanding  between  all  the  parties  concerned  in  the  trans- 
action that  the  minor  son  is  to  pay  the  notes,  and  he  pays 
the  annual  interest  on  the  notes,  improves  the  land,  and  pays 
the  notes  at  their  maturity,  though  such  payment  is  made 
subsequently  to  the  mother's  death,  a  resulting  trust  arises  in 
his  favor,  and  he  is  entitled  to  a  decree  conveying  the  legal 
title  of  the  heirs  of  the  grantee  to  him.^ 

«McClure     v.     Doak,     6     Baxt.  441;   Page  v.   Page,  8  N.  H.  187; 

(Tenn.)    364.  Runnells      v.      Jackson,      1      How. 

*  Kelly  V.  Johnson,  28  Mo.  249;  (Miss.)  358;  Honore  v.  Hutchings, 

Dudley  v.  Batchelder,  53  Me.  403.  8  Bush.  687.    And  see,  also,  Gibson 

6  Fleming  v.  McHale,  47  111.  282.  v.    Foote,   40    Miss.    788;    Cro?   v. 

And  see  Morey  v.  Herrick,  18  Pa.  Norton,  9  Mod.  235;  White  v.  Ou- 

St.  123;  Cutter  v.  Tuttle,  19  N.  J.  penter,  2  Paige,  217;  Henderso*  %, 

Eq.  562;  Lounsbury  v.  Purdy,  18  N.  Hoke,  1  Dev.  &  B.  Ch.  119. 
Y.  515;  Aveling  v.  Knipe,  19  Ves. 


2206  THE  LAW  OF  DEEDS.  [CHAP.    XXXII. 

§   1177.     Agreement    to  convey  to  another. — As   the 

party  claiming  the  benefit  of  a  resulting  trust  must,  at  the 
time  the  purchase  is  made,  have  paid  some  part  of  the  pur- 
chase money,  it  follows  that  if  one  party  buys  the  land,  pay- 
ing his  own  money  for  it,  and  taking  the  deed  in  his  own 
name,  the  fact  that  he  had  made  an  agreement  that  an- 
other party  might  purchase  from  him  will  not  convert  the 
transaction  into  a  resulting  trust. ^  An  allegation  of  a  verbal 
agreement  that  one  party  was  to  be  jointly  interested  with 
another  in  a  purchase,  is  insufficient  to  show  a  resulting 
trust,  in  the  absence  of  any  allegation  that  the  former  paid 
any  portion  of  the  consideration  at  the  time  at  which  the 
purchase  was  made7  Where  a  guardian  of  minor  children 
purchased  a  tract  of  land  which  at  one  time  the  father  of 
the  children  owned,  on  the  representation  to  the  vendor  that 
he,  the  guardian,  desired  to  secure  the  land  for  the  children, 
but  took  the  deed  in  his  own  name,  and  paid  his  own  money 
to  the  vendor,  it  was  held  that  no  express  trust  would  arise 
in  favor  of  the  children,  for,  as  the  representations  made  by 
the  guardian  were  by  parol,  such  a  trust  was  within  the 
prohibition  of  the  statute  of  frauds.*  Nor  would  the  law  in 
such  a  case,  imply  a  trust  because  the  children  for  whose 
benefit  the  guardian  pretended  that  he  desired  to  purchase 
the  land  had  no  interest  or  claim  or  expectation  of  interest 
in  the  land,  the  title  to  which,  though  once  vested  in  the 
father  of  the  minors,  had  been  transferred  to  another.' 
Where  a  father  purchased  land,  the  deed  being  executed  to 
himself,  and  paid  the  purchase  price  with  the  exception  of  a 
small  amount  which  was  paid  by  his  son,  and  it  was  under- 
stood that  the  son  should  have  the  land,  and  he  took  passes- 
sion   of   it  aTid   erected   improvements,    the   father   speaking 

*  Reeve  v.  Strawn,  14  111.  94.    See  249.    But  see  Towle  v.  Wadsworth, 

McCue  V.  Gallagher,  23  Cal.  51.  147  111.  80. 

'  Roberts   v.   Ware,  40  Cal.  634.  ^  Rogers  v.  Simmons,  55  111.  76 

See  White  v.  Sheldon,  4  Kev.  280.  9  Rogers  v.  Simmons,  55  111.  76 
And  see  Russell  v.  Allen,  10  Paige, 


CHAP.    XXXII.]  DEED  TO  ONE,  MONEY  PAID  BY  ANOTHER.     2207 

of  the  land  as  that  of  the  son,  and  saying  that  he  would 
convey  or  devise  it  to  him,  but  died  without  doing  so,  a 
trust  does  not  result  to  the  son  by  reason  of  his  payment 
of  the  small  part  of  the  consideration,  in.  the  absence  of 
evidence  that  the  deed  was  made  to  the  father  without  the 
son's  consent.^  Where  A  borrowed  money  from  B  with 
which  to  buy  land,  B  reserving  an  option  to  take  an  interest, 
but  declining  to  become  interested  in  the  title  at  the  time, 
and  did  not  give  A  notice  of  his  intention  to  take  an  interest 
or  offer  to  pay  any  money  beyond  the  loan  made  to  A,  but 
waited  till  the  transaction  proved  to  be  a  profitable  one,  when 
he  sought  to  establish  a  trust  in  A  for  his  benefit,  it  was 
held  that  he  could  not  do  so.^  A  deed  was  made  to  a  son  in 
law  which  stated  the  consideration  to  be  his  marriage,  and 
the  natural  love  and  affection  that  the  grantor  had  for  his 
daughter  and  the  grantee.  The  deed  stated,  after  the  con- 
sideration clause,  that  the  grantor  made  the  conveyance  for 
the  purpose  of  advancing  the  grantee  in  life.  No  trust  in 
the  land  conveyed,  the  court  held,  arose  in  favor  of  the  daugh- 
ter.' 

§  1177a.     Deed  to  assignee  for  benefit  of  creditors. — 

A  deed  reciting  that  the  grantor  "  for  and  in  consideration  of 
the  conditions  of  the  assignment  made  this  day  for  the  benefit 
of  the  creditors"  of  the  grantor  conveyed  land  to  a  grantee. 
The  court  held  that  this  recital  conclusively  established  the 
fact  that  the  grantee  acquired  the  property  in  trust  and  that 

iThorne  v.  Thome,  18  Ind.  462.  Brungard,    13    Smedes   &    M.   723; 

2  Loomis   V.  Loomis,  28  111.  454.  Peebles   v.   Reading,  8  Serg.   &  R, 

And  see  Kisler  v.  Kisler,  2  Watts,  484;      Ensley      v.      Ballentine,      4 

323,   27    Am.    Dec.    308;    Duflfy    v.  Humph.   233;   Lathrop   v.   Hoyt,   7 

Masterson,  44  N.  Y.  557;  WilHard  Barb.    60;    Sample    v.    Coulson,    9 

V.  Williard,  56  Pa.  St.  119;  Green  Watts  &  S.  62;  Smith  v.  Smith,  27 

V.  Cook,  2  111.  196 ;  Dorsey  v.  Clark,  Pa.    St.    180. 

4  Har.  &  J.  551;  Jackson  v.  Ring-  ^  Thompson     v.     Thompson,     18 

land,  4  Watts  &  S.  149;  Wa'ker  v.  Ohio  St.  73. 


2208  THE  LAW  OF  DEEDS.  [CHAP.    XXXII. 

parol  evidence  was  inadmissible  to  show  that  the  grantor 
intended  to  make  an  absolute  conveyance  of  the  property  for 
the  purpose  of  paying  the  claim  of  the  grantee  and  those  of 
other  creditors. ♦  If  the  grantor  should  never  execute  an  assign- 
ment as  contemplated,  the  legal  title  to  the  land  conveyed 
would  be  held  by  the  grantee  in  trust  for  the  grantor  and  in 
case  of  his  death  for  his  heirs.*  If  a  gift  is  made  upon  trust 
void,  partially  or  entirely,  a  trust  will  arise  in  favor  of  the 
donor,  if  no  other  disposition  of  the  land  is  made.' 

§  1178.  Resulting  trust  not  converted  into  express 
trust  by  agreement. — The  fact  that  the  grantee  agrees 
verbally  with  the  party  paying  the  consideration,  that  the 
former  would,  upon  demand,  execute  a  deed  to  the  latter, 
does  not  make  the  trust  express,  as  distinguished  from  one 
implied,  so  as  to  exclude  parol  proof.®  Where  a  husband 
purchases  real  estate,  and  has  the  deed  therefor  made  to 
his  wife,  under  an  express  agreement  between  them  that  she 
shall,  at  his  request,  convey  to  him  the  land  to  which  she 
thus  holds  the  legal  title,  she  has  no  interest  which,  in  the 
event  of  her  death  while  holding  the  legal  title,  will,  as 
against  the  husband,  descend  to  her  heirs.''  "It  cannot  be 
that  the  consent  of  the  trustee  to  hold  the  title  for  the  benefit 
of  the  cestui  que  trust,  or  an  agreement  so  to  do,  in  case  of 
a  resulting  trust,  will  change  its  character.  By  the  agree- 
ment the  trustee  simply  assents  to  an  obligation  imposed  by 
the  law ;  the  trust  would  exist  without  the  agreement  by  opera- 
tion of  law.  The  agreement  cannot  destroy  the  effect  of  the 
conditions  under  which  the  law  presumes  the  estate  is  held 
by  the  trustee."  ' 

*  McDermith     v.     Voorhees,     16  '  Cotton   v.   Wood,   25   Iowa,  43, 
Colo.    402,    25    Am.    St.    Rep.    286.       and  cases  cited. 

"McHugh    V.    McCole,    97    Wis.  « Cotton   v.   Wood,  25   Iowa,  43, 

166,  40  L.R.A.  724,  72  N.  W.  631.  46,    per    Beck,    J. 

•  Bayles  v.  Baxter,  22  CaL  575. 


CHAP.    XXXII.]  DEED  TO  ONE,  MONEY  PAID  BY  ANOTHER.    2209 

§  1179.     Part  payment  under  agreement  to  convey. — 

While  evidence  oi  a  parol  agreement  by  one  to  purchase 
land  for  another  is  inadmissible  where  the  former  has  paid 
the  whole  of  the  purchase  money  and  taken  the  deed  in  his 
own  name,  yet  if  the  party  claiming  the  benefit  of  the  trust 
has  paid  any  portion  of  the  purchase  money  at  the  time  of 
the  execution  of  the  deed,  it  is  competent  to  prove  a  verbal 
agreement  which  will  have  the  effect  to  deprive  the  grantee 
of  all  beneficial  interest  in  the  land,  and  to  charge  the  prem- 
ises with  a  trust  in  favor  of  the  one  for  whom  the  grantee 
agreed  to  purchase  it.* 

§  1180.  Advancing  portion  of  money. — Where  a  bar- 
gain is  made  between  the  owner  and  another  for  the  pur- 
chase of  a  tract  of  land,  with  the  knowledge  of  a  third 
person  who  stands  by  and  becomes  a  party  to  the  transaction, 
by  advancing  a  part  of  the  money  so  as  to  enable  the  vendee 
to  complete  the  bargain,  such  third  person,  if  he  subsequently, 
without  the  vendee's  knowledge,  purchases  from  the  vendor  a 
portion  of  the  same  land,  for  which  he  receives  a  deed,  and 
which  is  placed  on  record  before  the  deed  to  the  first  vendee, 
holds  the  title  in  trust  for  such  first  vendee.^  And  the  person 
who  has,  under  these  circumstances,  advanced  a  part  of  the 
money,  if  he  sells  the  land  to  a  bona  Me  purchaser  without 
notice,  becomes  liable  for  the  damage  sustained.** 

§  1181.  Agreement  to  purchase  by  two  or  more  par- 
ties.  Where  two  or  more  persons  have  agreed  among 

themselves  to  purchase  a  tract  of  land,  but  one  of  the  number 
pays  the  whole  of  the  purchase  price,  and  has  the  deed  made 
out  in  his  favor,  the  others  cannot  claim  a  resulting  trust.' 

9  Hidden   V    Jordan,   21   Cal.  92.  ^  Mercier  v.  Hemme,  50  Cal.  606. 

See   Meason  v.   Kaine,  63   Pa.   St.  « Coppage    v.    Barnett,    34    Miss. 

235  621;    Brooks   v.   Fowie,    14   N.   H. 

iMercier  v.  Hemme.  50  Cal.  606.  248;  Fowke  v.  Slaughter,  3  Marsh. 
Deeds,  Vol.  IL— 139 


2210  THE  LAW  OF  DEEDS.  [cHAP.    XXXII. 

But  where  A  purchased  a  piece  of  real  estate,  paid  a  part  of 
the  consideration,  and  had  the  deeds  made  to  B,  his  brother, 
who  executed  a  mortgage  to  secure  the  balance  of  the  purchase 
money  remaining  unpaid,  and  subsequently  buildings  were 
erected  upon  the  land,  to  which  B  contributed  his  personal 
attention  and  money,  and  afterward  A  signed  a  document 
acknowledging  that  he  had  received  from  B,  in  settlement 
of  accounts,  three  mortgages  on  the  premises,  which  mort- 
gages, however,  were  never  recorded  or  paid,  but  were  re- 
turned to  B  and  destroyed,  it  was  held  that  these  circum- 
stances created  a  resulting  trust  in  A's  favor,  and  that  any 
declarations  that  he  had  purchased  for  B  must,  in  order  to 
bind  him,  have  been  made  contemporaneously  with  the  pur- 
chase, and  that  this  resulting  trust  was  not  divested  by  the 
receipt  for  the  valueless  mortgages  given  by  A  some  months 
after  the  erection  of  the  buildings.*  A  party  uniting  with 
others  to  purchase  land,  and  agreeing  to  conduct  the  negotia- 
tions, and  to  buy  the  land  for  the  lowest  price  possible,  is 
bound,  from  the  pocition  of  trust  which  he  has  assumed,  to 
exercise  good  faith  toward  his  associates,  and  must  share  with 
them  all  the  profits  of  the  transaction.' 

§  1182.  Parol  evidence  to  establish  trust. — The  pro- 
visions of  the  statute  of  frauds  apply  only  to  trusts  created 
by  agreement  of  the  parties,  and  do  not  apply  to  such  trusts 
as  the  law  implies  by  reason  of  the  situation  or  probable  in- 
tent of  the  parties.*     Parol  evidence,  therefore,  is  admissible 

A.  K.  56,  13  Am.  Dec.  133;  Butler  Foote    v.    Bryant,   47    N.    Y.    544; 

V.  Rutledge,  2  Cold.  4;  Edwards  v.  Black  v.  Black.  4  Pick.  234;  Bryant 

Edwards,  39  Pa.  St.  369.    See  Cook  v.  Hendricks,  S  Iowa,  256;  Ross  v. 

V.  Bronaugh,  8  Eng.  183.     But  see  Hegeman,  2  Edw.  Ch.  373 ;  Judd  v. 

Leggett  V.   Leggett,  88  N.   C.   108.  Hasely,   22    Iowa,   428;    Larkin    v 

*  Edwards  v.  Edwards,  39  Pa.  St.  Rhodes,   5    Port.    196;    Scheerer  v, 

369.  Scheerer,   109  III.   11;    Summers  v 

6  King  V.  Wise,  43  Cal.  629.  Moore,    113   N.    C.   394;   Jordan   v, 

8  Smith  V.   Sackctt,  5   Gihn.  544;  Garner,  101  Ala.  411 ;  Gates  v.  Card. 

\Var(i   V.    Armstrong,   84   111.    151;  93   Teiw.   334;    Myers   v.   Jackson, 


CHAP.    XXXII.]  DEED  TO  ONE,  MONEY  PAID  BY  ANOTHER.    2211 

to  show  the  facts  from  which  a  resulting  trust  will  arise.'' 
Where  the  owner  of  the  legal  title  has  agreed  to  convey  it 
upon  the  performance  of  certain  conditions,  and  does  convey 


135  Ind.  136;  Howard  v.  Howard, 
52  Kan.  469;  Plumb  v.  Cooper,  121 
Mo.  668;  Snider  v.  Johnson,  25  Or. 
328;  Frances  v.  Rhoades,  146  111. 
635;  Cooksey  v.  Bryan,  2  App.  D. 
C.  557.  The  existence  of  a  parol 
contract  under  which  a  person 
was  to  buy  land  and  hold  it  for  the 
joint  benefit  of  himself  and  anoth- 
er, may  be  established  by  the  evi- 
dence of  the  cestui  que  trust,  and 
by  the  admission  of  the  trustee 
that  his  original  intention  was  to 
purchase  for  their  joint  benefit,  but 
that  he  changed  his  mind  before  the 
purchase  without  notifying  the 
cestui  que  trust  of  the  alteration  in 
his  intention :  Towle  v.  Wadsworth, 
147  111.  80. 

'Foote  V.  Bryant,  47  N.  Y.  544; 
Kane  v.  O'Conners,  78  Va.  76; 
Caldwell  V.  Caldwell,  7  Bush,  515; 
Verplank  v.  Caines,  1  Johns.  Qi. 
57;  Livermore  v.  Aldrich,  5  Cush. 
431 ;  Elliott  v.  Armstrong,  3  Blackf. 
199;  Boyd  v.  McLean,  1  Johns.  Ch. 
582;  Pritchard  v.  Brown,  4  N.  H. 
397,  17  Am.  Dec.  431 ;  Knox  v.  Mc- 
Farren,  4  Cal.  586;  Murry  v.  Sell, 
23  W.  Va.  475 ;  Page  v.  Page,  8  N. 
H.  187;  Witts  v.  Horney,  59  Md. 
584;  Botsford  v.  Burr,  2  Johns.  Ch. 
405;  Morgan  v.  Clayton,  61  111.  35; 
Cooth  V.  Jackson,  6  Ves.  39;  Pugh 
V.  Bell,  1  Marsh.  J.  J.  399;  Swin- 
burne V.  Swinburne,  28  N.  Y. 
568;  Hunter  v.  Town  of  Marl- 
boro, 2  Wood.  &  M.  168; 
Larkins  v.  Rhodes,  5  Port.  196; 
Moore  v.  Moore,  38  N.  H. 
382;   Hanson  v.  First   Presbyterian 


Church,  1  Stockt.  Ch.  441;  Olive 
V.  Dougherty,  5  Iowa,  393 ;  Boyd  v. 
McLean,  1  Johns.  Ch.  582;  Miller 
V.  Stokely,  5  Ohio  St.  194;  Farrin- 
ger  V.  Ramsey,  2  Md.  365 ;  Paine  v. 
Wilcox,  16  Wis.  202;  Cotton  v. 
Wood,  25  Iowa,  43 ;  Lipscomb  v. 
Nichols,  6  Colo.  290 ;  Baker  v.  Vin- 
ing,  30  Me.  121,  50  Am.  Dec.  617; 
Letcher  v.  Letcher,  4  Marsh.  J.  J. 
590;  Parmlee  v.  Sloan,  37  Ind.  469; 
Greer  v.  Baughman,  13  Md.  257 ; 
Vendever  v.  Freeman,  20  Tex.  333, 
70  Am.  Dec.  391 ;  Qarke  v.  Quack- 
enboss,  27  111.  260;  Stall  v.  Cincin- 
nati, 16  Ohio  St.  169;  Phelps  v. 
Seeley,  22  Gratt.  573;  Childs  v. 
Griswold,  19  Iowa,  362;  Shepard  v. 
Pratt,  32  Iowa,  296;  Hyden  v.  Hy- 
den,  6  Baxt.  (Tenn.)  406;  Bly- 
holder  v.  Gibson,  18  Pa.  St.  134; 
Strimpfler  v.  Roberts,  18  Pa.  St. 
283,  57  Am.  Dec.  606;  Mitchell  v. 
O'Neale,  4  Nev.  504;  Baumgartner 
v.  Guessfeld,  38  Mo.  36;  Farrell  v. 
Lloyd,  69  Pa.  St.  239;  Willis  v. 
Willis,  2  Atk.  71;  Heiskell  v. 
Powell,  23  W.  Va.  717;  Scoby  v. 
Blanchard,  3  N.  H.  179;  Powell  v. 
Bronson  etc.  Mfg.  Co.,  3  Mason, 
347;  Jennison  v.  Graves,  3  Blackf. 
441;  Snelling  v.  Utterback,  1  Bibb. 
609,  4  Am.  Dec.  661;  Byers  v. 
Wackman,  16  Ohio,  440;  Paris  v. 
Dunn,  7  Bush,  276;  Blair  v.  Bass, 
4  Blackf.  540;  Peiffer  v.  Lytic,  58 
Pa.  St.  386;  McGinity  v.  McGinity, 
6  Pa.  St.  38;  Nixon's  Appeal,  63 
Pa.  St.  279;  Bayles  v.  Baxter,  22 
Cal.  575;  Malin  v.  Malin,  1  Wend. 
626;    Peabody   v.   Tarbell,  2   Cush. 


2212  THE  LAW  OF  DEEDS.  [CHAP.    XXXII. 

it  at  the  purchaser's  request,  for  his  benefit,  to  a  third  per- 
son, this  may  be  evidence  of  payment  by  the  beneficiary,  so 
as  to  raise  a  resulting  trust,  which  may  be  taken  by  his 
creditors.'  For  the  purpose  of  estabhshing  the  trust,  evi- 
dence that  the  person  who  paid  the  State  for  a  warrant  was 
a  clerk  in  the  land-office,  had  but  a  small  amount  of  prop- 
erty and  had  paid  large  sums  for  a  great  number  of  warrants 
to  which  he  never  asserted  any  claim,  is  admissible.'  But 
the  character  of  the  transaction  cannot  be  shown  by  agree- 
ments and  letters  between  the  party  paying  the  purchase 
money  and  other  parties.^  But  the  admissions  of  the  grantee 
are  admissible  for  the  purpose  of  proving  who  the  person  is, 
by  whom  the  purchase  money  was  paid.^  A  jury  are  author- 
ized to  find  that  a  father  holds  land  in  trust,  where  it  is 
shown  that  he  had  not  sufficient  means,  that  the  son  had, 
that  the  father  at  about  the  time  he  left  home  said  that  he  was 
going  to  a  certain  place  near  which  the  land  was  situated  for 
the  purpose  of  buying  land  for  the  son,  that  the  latter  then 
delivered  money  to  the  father,  and  that  this  occurred  about 

226;    Lloyd   v.    Carter,    17    Pa.    St.  Vern.  480;  Deg  v.  Deg,  2  P.  Wms. 

216;  Disnuikes  v.  Terry,  Walk.  Ch.  414;    Heron    v.    Heron,    Prec.    Ch. 

197;    Millard   v.   Hataway,   27  Cal.  163;   Cox  v.  Bateman,  2  Ves.    19; 

119;    Smith    v.    Burnham,    3    Sum.  Skitt    v.    Whitmore,    Freem.    280; 

433;  Barron  v.  Barron,  24  Vt.  375;  Ambrose  v.   Ambrose,   1    P.   Wms. 

Lyford  v.  Thurston,  16  N.  H.  399;  321;    Kinder   v.    Miller,    Prec.    Ch. 

Cooper    V.    Skecl,     14    Iowa,    578;  172;  Newton  v.  Preston,  Prec.  Ch. 

Groves  v.  Groves,  3  Younge  &  J.  103.     And   see   Barbin  v.  Gaspard, 

163;  Bartlctt  V.  Pickersgill,  1  Eden,  15    La.    Ann.    539;    Groesbeck    v. 

515;  Lench  v.  Lench,  10  Ves.  517;  Seeley,    13    Mich.    329;    Connor   v. 

Harder  v.  Harder,  2  Sandf.  Ch.  17 ;  Follansbee,   59   N.   H.    124. 

Peebles  v.   Reading,  8  Serg.  &  R.  8  Lyford  v.  Thurston,   16  N.   H. 

484.     See   Osborne   v.    Endicott,   6  399. 

Cal.  149,  65  Am.  Dec.  498.    In  some  ®  Strimpfler    v.    Roberts,    18    Pa. 

of  the  early  cases  it  was  held  that  St.  283,  57  Am.  Dec.  606. 

parol    evidence    could    not    be    re-  ^  Strimpfler  v.  Roberts,  18  Pa.  St. 

ceived  to  control  the  recitals  of  the  283,  57  Am.  Dec.  606. 

deed  as  to  the  payment  of  the  con-  ^  Baumgartner    v.    Guessf  eld,    38 

sideration:     See     Kirk     v.     Webb,  Mo.  36. 
Prec.   Ch.  84;   Hooper  v.   Eyles,  2 


CHAP.    XXXII.]  DEED  TO  ONE,  MONEY  PAID  BY  ANOTHER.     2213 

the  time  the  land  was  bought.'  So  where  the  trustee  ex- 
changes the  land  held  in  trust  for  other  land,  with  the  bene- 
ficiary's consent,  the  trust  thus  arising  may  be  established  bj 
parol  evidence.* 

§  1183.  Convincing  proof  required. — As  it  is  sought  in 
attempting  to  establish  a  resulting  trust  to  raise  an  equity 
superior  to  the  deed,  and  thus  give  it  an  effect  not  apparent 
upon  its  face,  the  proof  that  one  other  than  the  grantee  is 
beneficially  interested  must  be  clear  and  convincing.  "We 
recognize  the  doctrine  to  the  fullest  extent,  and  such  is  the 
uniform  holding  in  all  the  cases,  that  where  a  right  or  title 
is  claimed  against  a  writing,  in  this  or  any  other  class  of 
cases,  where  it  is  permitted  at  all,  it  must  be  sustained  by 
proof  of  the  most  convincing  and  irrefragable  character.  The 
courts  have  been  deeply  impressed  with  the  danger  of  this 
kind  of  proof,  as  tending  to  perjury  and  the  insecurity  of 
paper  titles.  Kent  and  other  eminent  judges  regret  that  the 
doctrine  was  ever  introduced,  as  it  opens  a  wide  door  to 
frauds  and  perjuries,  which  the  statute  was  intended  to  close. 
It  has,  therefore,  been  uniformly  required,  in  this  class  of 
cases,  that  the  payment  of  the  money  of  the  person   who 

8Farrell  v.  Lloyd,  69  Pa.  St.  239.  120  Iowa,  472,  94  N.  W.  1115;  Dor- 

*  Frances  v.  Cline,  96  Va.  201,  31  man   v.    Dorman,    187   111.    154,    58 

S.  E.  10.    That  a  parol  trust  may  be  N.   E.  235,   79  Am.    St.   Rep.  210; 

established   by   parol   evidence,  see,  Price  v.  Kane,  112  Mo.  412,  20  S. 

also,   Childs   v.   Jordan,   106  Mass.  W.  609;   Curd  v.  Brown,   148  Mo. 

321;  Marsh  v.  Davis,  33  Kan.  326,  82,  49  S.  W.  990;  Chicago,  B.  &  Q. 

6  Pac.  612;  Corey  v.  Morrill,  71  R.  Co.  v.  First  Nat.  Bank,  59  Neb. 
Vt.  51,  42  Atl.  976;  Polk  v.  Boggs,  348,  80  N.  W.  1030,  affirming  58 
122  Cal.  114,  54  Pac.  536;  Webb  v.  Neb.  548,  78  N.  W.  1064;  Galbraith 
Foley,  49  S.  W.  40;  Irwin  v.  Ivers,  v.   Galbraith,    190   Pa.   225,  42   Atl. 

7  Md.  308,  63  Am.  Dec.  420 ;  Brooks  683 ;  Eaves  v.  Vial,  98  Va.  134,  34 
V.  Union  Trust  &  Realty  Co.,  146  S.  E.  978;  Miller  v.  Miller,  99  Va. 
Cal.  134,  79  Pac.  843;  Booth  v.  125,  37  S.  E.  1092;  McClintock  v, 
Lenox,  45  Fla.  191,  34  So.  566;  Loisseau,  31  W.  Va.  865,  2  L.R.A. 
Branstetter  v.  Mann,  6  Idaho,  580,  816,  8  S.  E.  612;  Bright  v.  Knight, 
57  Pac.  433;  Kringle  v.  Rhomberg,  35  W.  Va.  40,  13  S.  E.  63. 


2214  THE  LAW  OF  DEEDS.  [CHAP.    XXXII. 

claims  to  be  a  cestui  que  trust  should  be  clearly  proved.  The 
same  rule  as  to  quantity  and  sufficiency  of  proof  applies 
in  this  case  as  in  a  bill  filed  to  convert  a  sale  or  deed,  ap- 
parently absolute,  into  a  mortgage  or  conditional  sale."  ^  Ex- 
pressions of  a  similar  character  may  be  found  in  numerous 
other  cases.  "While  parol  proof  is  admissible  to  establish  a 
trust  of  this  sort,  it  is  important  to  understand  that  such  proof 
must  be  strong  and  convincing."  *  It  is  said,  "the  authorities 
are  clear  that  the  payment  of  the  purchase  money  by  the 
cestui  que  trust  must  be  clearly  proved,  otherwise  you  ren- 
der insecure  titles  depending  on  deeds  and  other  written 
documents."  '  "The  cases  uniformly  show,"  says  Chancellor 
Kent,  "that  the  courts  have  been  deeply  impressed  with  the 
danger  of  this  kind  of  proof,  as  tending  to  perjury  and  the  in- 
security of  paper  title;  and  they  have  required  the  payment 
by  the  cestui  que  trust  to  be  clearly  proved."  '  "This  rule  is 
based  on  the  soundest  legal  principles,  for  the  parol  proof 
must  of  necessity  be  the  testimony  of  witnesses  as  to  what 
the  parties  have  said  or  verbally  agreed  to — a  class  of  testi- 
mony notoriously  weak;  and  the  fact  to  be  overturned  is  a 
writing,  the  best  evidence  as  to  where  the  legal  title  is 


"  9 


6  McCammon  v.  Pettitt,  35  Tenn.  '  Dorsey  v.  Clarke,  4  Har.  &  J 

(3  Sneed)  242,  246,  per  Caruthers,  551,  557,  per  Dorsey,  J. 

J;    Pillar   v.    McConnell,    141    Ind.  8  Boyd  v.   McLean.   1   Johns.  Ch. 

670,  40   N.   E.   Rep.   689;   Reed   v.  582,  590. 

Painter,  129  Mo.  674,  31  S.  W.  Rep.  » Hyden     v.     Hyden,     6     Baxt. 

919;    Hogcbooni    v.    Robertson,    41  (Tenn.)   406,  407,  per  Freen.an,  J. 

Neb.  795 ;  McRae  V.  McRae,  78  Md.  See,   also,    Faringer   v.    Ramsay,   2 

270;  Bourke  v.  Callanan,  160  Mass.  Md.  375;  Sidle  v.  Walter,  5  WaUs, 

195;  Koster  v.  Miller,  149  111.  195;  389;  Lench  v.  Lench,  10  Ves.  517; 

Hensler    v.    Hensler,    5    Tex.    Civ.  Greer   v.    Baughnian,    13   Md.    257; 

App.  367.     The  fact  of  payment  by  Keller  v.  Keller,  45  Md.  269;  Braw- 

the  beneficiary,  it  is  said,  must  be  ner  v.  Staup,  21  Md.  328;  Slocdmb 

proven  beyond  a  reasonable  doubt:  v.    Marshall,   2    Wash.    C.    C.    397; 

Logan  V.  Johnson,  72  Miss.  185,  16  Cottington  v.  Fletcher,  2  Atk.  155; 

So.  Rep.  231.  Newton  v.  Preston,  Prec.  Ch.  103; 

fl  Thomas   v.   Standiford,  49   Md.  Enos  v.  Hunter,  4  Gilm.  211;  Mil- 

181,  184.  lard    v.    Hathaway,    27    Cal.    119; 


Chap.    XXXII.]   DEED  TO  ONE,  MONEY  PAID  BY  ANOTHER.     2215 

The  execution  of  a  quitclaim  deed  to  a  third  person  by  the 
person  claiming  to  be  the  beneficiary  of  a  resulting  trust 
does  not  tend  to  prove  the  existence  of  any  interest  in  him.* 
In  a  case  where  a  father  in  law  by  an  absolute  deed,  con- 
veyed land  to  his  son-in-law,  evidence  was  given  to  the  effect 
that  the  grantor  had  declared  that  he  intended  the  land  con- 
veyed for  his  bodily  heirs,  and  that  the  grantee  had  declared 
that  he  possessed  no  property  and  also  that  the  claim  of 
ow^nership  of  the  land  was  made  by  the  grantee's  wife,  but 
the  court  said  that  this  evidence  was  not  sufficiently  of  that 
clear  and  convincing  character  necessary  to  establish  a  result- 
ing trust  in  favor  of  the  wife.*^  Nor  will  a  resulting  trust 
be  raised  in  favor  of  a  wife  by  the  testimony  of  the  husband 
alone,  that  he  used  her  funds  held  by  him  as  her  separate 
estate  to  purchase  the  land.^  It  is  said  that  to  establish  a 
resulting  trust  the  evidence  should  be  so  clear  and  convincing 
as  to  leave  no     well-founded  doubt  upon  the  subject.*     No 


O'Hara  v.  O'Neil,  2  Eq.  Cas.  Abr. 
475;  Carey  v.  Callan,  6  Mon.  B.  44; 
Ambrose  v.  Ambrose,  1  P.  Wms. 
321 ;  Nelson  v.  Warrall,  20  Iowa, 
469;  Laughlin  v.  Mitchell,  14  Fed. 
Rep.  382. 

1  Cunningham     v.      Cunningham, 
125  Iowa,  681,  101  N.  W.  470. 

2  Rogers  v.  Rogers,  52  S.  C.  388, 
29  S.   E.  812. 

3  Levy  V.  Acklen,  2  Tenn.  Ch. 
App.  201.  That  the  evidence  by 
parol  to  establish  a  resulting  trust 
must  be  clear  and  satisfactory,  see 
Gilbert  Bros.  &  Co.  v.  Lawrence 
Bros.,  56  W.  Va.  281,  49  S.  E.  155 
Heil  V.  Heil,  184  Mo.  665,  84  S.  W 
45;  Crosby  v.  Henry,  76  Ark.  615 
88  S.  W.  449;  Herlihy  v.  Coney 
99  Me.  469,  59  Atl.  952;  Bendy  v 
Mudford,  76  Ark.  615,  88  S.  W, 
999;  Doll  v.  Gifford,  13  Colo.  App 
67,  56  Pac.  676;  Luckhart  v.  Luck- 


hart,  120  Iowa,  248,  94  N.  W.  461 ; 
Goodman  v.  Crowley,  161  Mo.  657, 
61  S.  W.  850;  Viers  v.  Viers,  175 
Mo.  444,  75  S.  W.  395;  Ulrici  v. 
Boeckler,  72  Mo.  App.  661 ;  Graham 
v.  Spence,  71  N.  J.  Eq.  183,  63  Atl. 
344;  Smith  v.  Stevenson.  204  Pa. 
194,  53  Atl.  746;  Laning  v.  Dar- 
ling, 209  Pa.  254,  58  Atl.  477 ;  Bur- 
nett V.  Campbell  Co.,  1  Tenn.  Ch. 
App.  18;  Helstrom  v.  Rodes,  30 
Utah,  122,  83  Pac.  730;  Kline  v. 
Kline's  Creditors,  103  Va.  263,  48 
S,  E.  882. 

4  Rice  V.  Rigley,  7  Idaho,  115,  61 
Pac.  290.  See,  also,  Dooley  v.  Pin- 
son,  145  Ala.  659,  39  So.  664;  Fos- 
ter v.  Beidler,  79  Ark.  418,  74  S.  W. 
516;  Chambers  v.  Michael,  71  Ark. 
2,73,  74  S.  W.  516;  Marshall  v. 
Fleming,  11  Colo.  App.  515,  53  Pac. 
620;  Deaner  v.  O'Hara,  36  Colo. 
476,  85  Pac.  1123;  St.  Louis  etc.  Ry. 


2216 


THE  LAW  OF  DEEDS. 


[chap.  xxxn. 


trust  will  be  established  where  the  facts  can  reasonably  be 
explained  on  a  theory  other  than  of  a  resulting  trust.'' 

§  1184.     Parol  evidence  to  rebut  resulting  trust. — It  is 

hardly  necessary  to  remark  that  it  is  proper  to  rebut  any 
presumption  that  may  arise  from  the  transaction  as  to  a  re- 
sulting trust  by  parol  evidence.*  Where  A  contracts  for 
the  purchase  of  real  estate,  pays  the  purchase  money,  but 
subsequently  consents  by  parol  that  the  deed  should  be  made 
by  the  owner  to  B  in  consideration  of  the  latter  assuming  cer- 
tain liabilities  for  A,  the  deed,  when  made,  is  to  be  regarded 
as  the  deed  of  A  himself.  B  acquires  the  title,  and  may  re- 
but by  parol  evidence  any  equity  claimed  by  A.'  And  the 
same  result  follows  where  the  grantee  is  to  pay  the  purchase 
money  at  some  future  time,  as  where  A  purchases  land  with 
his  own  money,  but,  before  the  execution  of  the  deed,  enters 
into  a  verbal  contract  with  B  by  which  the  deed  from  the 


Co.  V.  Hannibal  Union  Depot  Co., 
125  Mo.  82,  28  S.  W.  483 ;  Owensby 
V.  Chevvning,  171  Mo.  226,  71  S.  W. 
122;  Curd  v.  Brown,  148  Mo.  82, 
49  S.  W.  990. 

sPickler  v.  Pickler,  180  111.  168, 
54  N.  E.  311.  See,  also,  Doane  v. 
Durham,  64  Neb.  125,  89  N.  W. 
640;  Hillman  v.  Allen,  145  Mo.  638, 
47  S.  W.  509;  Brinkman  v.  Sun- 
ken, 174  Mo.  709,  74  S.  W.  763; 
Mulock  V.  Mulock,  156  Mo.  431,  57 
S.  W.  122;  Luric  v.  Sabath,  208 
111.  401,  70  N.  E.  323. 

•  Elliott  V,  Armstrong,  2  Blackf. 
199;  Tryon  v.  Huntoon,  67  Cal. 
325;  Bayles  v.  Baxter,  22  Cal.  575; 
Garrick  v.  Taylor,  29  Beav.  79; 
Sewell  V.  Baxter,  2  Md.  Ch.  448; 
Squire  v.  Harder,  l^Paige,  494,  19 
Am.  Dec.  446;  Hays  v.  Quay,  68 
Pa.  St.  263 ;  McCue  v.  Gallagher,  23 
Cal.    51;    White    v.    Carpenter,    2 


Paige,  217;  Byers  v.  Danley,  27 
Ark.  11;  Rider  v.  Kidder,  10  Ves. 
364;  Benbow  v.  Townsend,  1  Mylne 
&  K.  506;  Jackson  v.  Morse,  16 
Johns.  199,  8  Am.  Dec.  306;  Creed 
V.  Lancaster  Bank,  1  Ohio  St.  1 ; 
Bellasis  v.  Compton,  2  Vern.  294; 
Pinney  v.  Fellows,  15  Vt.  525 ; 
Steere  v.  Steere,  5  Johns.  Ch.  18. 
9  Am.  Dec.  256;  Baker  v.  Vining, 
30  Me.  126,  50  Am.  Dec.  617;  Run- 
die  V.  Rundle,  2  Vern.  252;  Lane 
V.  Dighton,  Amb.  409;  Beechler  v. 
Major,  2  Drew.  &  S.  431;  Jackson 
V.  Feller,  2  Wend.  465 ;  Taylor  v. 
Taylor,  1  Atk.  386. 

7  Myers  v.  Myers,  25  Pa.  St.  100. 
"Such  evidence,"  said  the  court, 
"is  in  support  of  the  written  title, 
and  not  in  opposition  to  it."  See, 
also,  Jackson  v.  Morse,  16  Johns. 
198,  8  Am.  Dec.  306. 


CHAP.    XXXII.]  DEED  TO  ONE,  MONEY  PAID  BY  ANOTHER.    2217 

grantor  is  executed  to  B  directly,  on  B's  promise  to  pay  at 
some  future  time  to  A  the  purchase  money.  A  cannot  claim 
a  resulting  trust  in  the  land  conveyed.*  Where  a  brother 
executed  a  declaration  of  trust  that  his  father  had  given 
him  a  certain  sum  of  money  with  which  to  purchase  land 
for  the  use  of  his  sister,  and  promised  in  the  declaration 
of  trust  to  convey  fifty  acres,  which  he  described,  for  her 
separate  use,  and  had  given  a  receipt  stating  that  he  had  pur- 
chased the  whole  tract  of  one  hundred  acres  "which  was  in- 
tended for  his  sister,"  and  there  was  evidence  to  show  that 
he  did  not  claim  any  of  the  land  till  his  father's  death,  and 
other  circumstances  showing  a  trust  in  the  whole  tract,  it 
was  held  that  he  might  rebut  the  presumption  of  a  trust  in 
the  whole  by  his  own  testimony  that  the  receipt  contained  a 
mistake  in  stating  that  all  the  land  was  for  his  sister,  and 
by  other  evidence  that  there  was  an  understanding  in  the 
family  that  fifty  acres  only  were  to  be  held  in  trust  by  him.' 
A  grantor  who  has  conveyed  land  with  a  covenant  of  war- 
ranty is  estopped  from  asserting  that  he  had  an  interest  in 
the  purchase  money  from  which  a  resulting  trust  might  arise.^ 

§  1185.  Benefit  inconsistent  with  the  trust. — "The 
trust  which  results  to  the  purchaser  by  operation  of  law, 
must  be  a  pure,  unmixed  trust  of  the  ownership  and  title  of 
the  land  or  estate  itself,  and  not  an  interest  in  the  proceeds 
of  the  land,  nor  a  lien  upon  it  as  a  security  for  an  advance 
or  other  demand,  nor  an  equity  or  a  right  to  a  sum  of  money 
to  be  raised  out  of  the  land,  or  upon  the  security  of  it.  These 
rights  are  the  subjects  of  the  contracts  or  agreements  of 
the  parties,  and  may  form  the  substance  of  express  trusts, 
but  they  require  for  their  subsistence  that  the  title  and  legal 
estate  of  the  premises,  which  yields  the  aliment  that  sustains 
them,   should   reside,   not   nominally  but  potentially,   in   the 

0  McCue  V.  Gallagher,  23  Cal.  51.  ^  Squire  v.  Harder,  1  Paige,  494, 

9  Hays  V.  Quay,  68  Pa.  St  263.        19  Am.  Dec.  446. 


2218  THE  LAW  OF  DEEDS.  [CIIAP.    XXXit 

trustee.  The  sole  operation  of  pure  and  simple  trusts  is  to 
vest  the  estate  in  the  actual  purchaser,  in  exclusion  of  the 
nominal  grantee,  and  not  to  regulate  the  equitable  rights  and 
interests  of  those  for  whose  benefit  the  legal  owner  may  be 
under  a  moral  obligation  to  hold  or  apply  it."  ^  Accordingly, 
where  money  for  the  purchase  of  land  was  furnished  by 
three  persons  jointly,  and  it  was  agreed  that  two  of  them 
should  take  the  title  in  fee,  and  the  third,  in  consideration 
of  the  money  advanced  by  her,  should  have  wood  from  the 
land  during  her  life,  and  the  deed  was  taken  in  the  name  of 
one  of  the  two,  no  trust  results  in  favor  of  the  third  person.' 
And  if  the  parties  express  a  trust  in  writing  at  the  time  of 
the  transaction,  this  supersedes  any  resulting  trust  which  might 
othenvise  arise.*  An  owner  of  a  farm  and  a  person  intending 
to  purchase  it,  agreed  that  in  consideration  of  the  conveyance, 
the  latter  would  support  the  owner  and  his  wife  during  their 
lives,  and  after  the  grantor's  death  would  pay  to  his  estate 
a  stipulated  sum.  The  owner,  in  compliance  with  this  agree- 
ment, conveyed  the  farm  in  fee,  and  the  grantee  executed  a 
deed  thereof  to  the  grantor  and  his  wife  for  their  lives.  But, 
when  requested,  the  grantee  refused  to  give  an  obligation  of 
any  character  to  support  the  grantor  and  his  wife,  or  to  pay 
the  sum  determined  upon  to  his  estate  after  his  decease.  These 
facts,  it  was  held,  did  not  create  a  resulting  trust." 

§  1186.  Professional  services. — The  rendition  of  pro- 
fessional services  forms  a  sufiicient  consideration,  it  is  held, 
to  raise  a  resulting  trust  in  favor  of  the  person  rendering 
the  services.®     An  owner,  however,   of  overdue  promissory 

2  Dow  V.   Jewell,   21    N.   H.   470,       tice  v.  Brown,  6  Paige,  448;  Mercer 
488,  per  Gilchrist,  C.  J.  v.  Stark.  Walker,  451,  12  Am.  Dec. 

3  Dow  V.  Jewell,  21  N.  H.  470.  583;    Leggett   v.    Dubois,   5    Paige, 
*  See  Alexander  v.  Warrance,  17       114,  28  Am.  Dec.  413. 

Mo.    230;    Clark    v.    Burnham,    2  6  Hunt  v.    Moore,  6  Cush.   1. 

Story,   1 ;  Dennison  v.  Goehring,  7  «  White  v.   Sheldon,  4  Nev.  280. 

Pa.  St.  175,  47  Am.  Dec  505;  Ans- 


CHAP.    XXXII.]   DEED  TO  ONE,  MONEY  PAID  BY  ANOTHER.    2219 

notes    desirous  of  collecting  the  money  due  on  them,   and 
having  no  means  to  pay  attorney's  fees  and  costs,  arranged 
with  an  attorney  to  take  the  notes  for  collection.     The  notes 
were  indorsed  to  the  attorney  under  an  agreement  by  which 
he  was  to  furnish  money  to  pay  costs  and  disbursements,  to 
bring  suit  on  the  notes  in  his  own  name,  and  should  be  re- 
imbursed out  of  the  porceeds  of  the  notes  when  collected, 
for  his  fees  and  outlays,  and  the  attorney  gave  to  the  owner 
a  receipt  stating  that  the  notes  were  received  for  collectiom 
The  attorney  commenced  actions  in  his  own  name,  secured 
judgment,  had  an  execution  issued  which  was  returned  un- 
satisfied, and  subsequently  made  an  agreement  with  a  brother 
of  one  of  the  defendants  in  the  judgment,  the  result  of  which 
was  that  the  brother  conveyed  to  the  attorney  a   tract  of 
land    and  the  attorney  assigned  the  judgment  to  him,  and 
also 'paid  him  eight  hundred  dollars,  the  attorney  at  all  times 
being  solvent  and  willing  to  pay  the  original  owner  of  the 
notes  whatever  was  due  him  on  settlement.     It  was  held  that 
the  attorney  did  not  hold  the  land  conveyed  to  him,  in  trust 
for  his  client,  and  that  the  latter  was  entitled  to  recover  only 
the  money  due  him  on  a  fair  settlement.' 

VRobles   V    Clarke,  25   Cal.   317.  sale  on  the  execution  for  a  sum  less 

Said  Sawyer,  J.,  in  delivering  the  than    the    amount    commg    to    h.s 

opnion    of      he    court:    "What    is  client  on  the  judgment   and  sought 

°h  r     on  the  part  of  the  defendant  to  retain  the  benefit  of  the  purchase 

n  this  transaction  that  is  obiection-  for    himself     h.s    -teres     and    h,s 

able  on  the   score  of  the  strictest  duty  would  have  conflicted    for   m 

0    ncijes    of    good   morals,    or    in  that  case,   it  would  have  been  h.s 

arrespect    inconsistent    with    his  interest   to    obtau.    the   land   at   as 

hX  to  his  client^     Had  he  imme--  low    a    rate    as    possible,    while    it 

dLtelyte'derd  plaintiff  in  cash  the  would  have  been  his  duty  to  get  as 

ball  ce  cred  ted  to  him,  the  most  much  as  Possible  out  of  the  land 
ritd  casuTst  could  find  nothing  in  until  sufficient  should  be  realized 
tie  transact  o'„  of  which  he  could  to  liquidate  the  amount  due  to  the 
comp  "  The  defendant  would  client.  But  this  was  not  his  posi- 
Tavep  formed  to  its  fullest  extent  tion.  The  chance  for  making  te 
the  object  of   the  trust.     Had  the       money  on  the  judgment  was   des- 

udl  n    be  n  a  lien  on  the  prop-       perate.      An    opportunity   occurred, 
ty    and  had  he  purchased  it  at  a      wherein  by  advancmg  a  consider- 


2220 


THE  LAW  OF  DEEDS. 


[chap.    XXXII. 


§  1187.  Conveyance  of  legal  title  only. — When  a  per- 
son who  has  in  himself  both  the  legal  and  equitable  title  to 
property,  conveys  or  devises  the  legal  estate,  intending  to 
convey  this  title  only,  a  trust  will  result  to  him  as  to  the 
estate  not  transferred.  When  the  question  of  the  intention  of 
the  party  conveying  is  not  expressed,  and  becomes  a  matter 
of  presumption,  parol  evidence  is  admissible  to  ascertain  his 
intention.*  Where  a  party  in  possession  without  right  is 
deprived  of  possession,  without,  however,  depriving  him  of 
any  right  of  possession  at  law  resulting  from  his  actual  prior 
possession,  the  wrongdoer,  if  he  purchases  the  title  from  the 
lawful  owner,  does  not  hold  the  title  in  trust.' 

§  1188.  Laches  of  cestui  que  trust. — The  rule  is  equity 
is  that  the  court  will  not  give  its  aid  to  enforce  a  resulting 


able  sum  of  money  himself,  and 
taking  upon  his  own  shoulders  all 
the  risks  of  a  purchase  of  the 
lands  in  the  condition  stated,  upon 
which  he  had  no  judgment  lien,  he 
could  secure  his  own  interest  in  the 
judgment,  and,  at  the  same  time, 
fulfill  both  the  letter  and  spirit  of 
his  trust,  and  he  embraced  it.  In 
this  we  can  see  no  breach  of  duty, 
or  misapplication  of  trust  funds 
within  the  principle  of  any  case 
that  has  been  brought  to  our  notice, 
unless  the  fact  that  the  amount  due 
plaintiff  was  not  immediately  ten- 
dered to  him  in  cash  by  defendant 
changes  the  aspect  of  the  case." 

8  See  Barrett  v.  Buck,  12  Jur. 
771 ;  Levet  v.  Needham,  2  Vern. 
138;  Hogan,  Strayhorn,  65  N.  C. 
279;  Wych  v.  Packington,  3  Brown 
Ch.  44;  Fletcher  v.  Ashbumer,  1 
Brown  Ch.  501 ;  Sewell  v.  Denny, 
10  Beav.  315;  Cooke  v.  Dealey,22 
Beav.  196;  Halford  v.  Stains,  16 
Sim.  488;  Trimmer  v.  Bayne,  7  Ves. 


520;  Petit  v.  Smith,  1  P.  Wms.  7; 
Gladding  v.  Yapp,  5  Mod.  56;  Cook 
V.  Hutchinson,  1  Keen,  50;  Lang- 
ham  V.  Sandford,  17  Ves.  435 ; 
Docksey  v.  Docksey,  2  Eq.  Cas. 
Abr.  506;  3  Brown  Pari.  C.  39; 
Walton  V.  Walton,  14  Ves.  318; 
North  V.  Crompton,  1  Ch.  Cas.  Ch. 
196;  2  Vern.  253;  Lake  v.  Lake,  1 
Wils.  313;  Barnes  v.  Taylor,  27 
N.  J.  Eq.  265;  Williams  v.  Jones, 
10  Ves.  11;  Nourse  v.  Finch,  1  Ves. 
Jr.  344;  1  Perry  on  Trusts,  §  150; 
Lewin  on  Trusts,  115.  Parol  evi- 
dence cannot  be  received  to  affect 
a  trust  created  by  writing:  Ralston 
V.  Telfair,  2  Dev.  Eq.  255;  White 
V.  Evans,  4  Ves.  21 ;  Hughes  v. 
Evans,  13  Sim.  496;  Langham  v. 
Sandford,  17  Ves.  435;  Love  v. 
Gaze,  8  Beav.  472;  Gladding  v. 
Yapp,  5  Mod.  59;  White  v.  Wil- 
liams, 3  Ves.  &  B.  72;  Walton  v. 
Walton,  14  Ves.  322. 
9  Scott  V.  Umbarger,  41  Cal.  410. 


CHAP.    XXXII.]   DEED  TO  ONE,  MONEY  PAID  BY  ANOTHER.     2221 

trust  after  the  lapse  of  a  long  period  of  time,  and  in  the 
absence  of  any  explanation  of  the  laches  of  the  cestui  que 
trust.  "Long  and  unexplained  delay  is  a  material  circum- 
stance against  the  establishment  of  implied  trusts  in  real  estate 
when  parol  evidence  alone  is  relied  upon  for  this  purpose."  ^ 

§  1189.  Deed  without  consideration. — It  was  thought 
at  one  time  that  if  a  man  conveyed  land  without  considera- 
tion a  trust  would  result,^  But  it  is  now  settled  law  that 
a  trust  does  not  result  to  the  grantor  merely  because  there 
was  no  consideration  for  the  conveyance.^    Where  a  husband 


^  Sunderland  v.  Sunderland,  19 
Iowa,  325,  329,  per  Dillon,  J; 
Strimpfler  v.  Roberts,  18  Pa.  St. 
283,  57  Am.  Dec.  606;  Brown  v. 
Guthrie,  27  Tex.  610;  Haines  v. 
O'Connor,  10  Watts,  315,  36  Am. 
Dec.  180;  Peebles  v.  Reading,  8 
Serg.  &  R.  484;  Trafford  v.  Wilkin- 
son, 3  Tenn.  Ch.  701 ;  Newman  v. 
Early,  3  Tenn.  Ch.  714;  Clegg  v. 
Edmonson,  8  De  Gex,  M.  &  G.  787 ; 
Buckford  v.  Wade,  17  Ves.  97; 
King  V.  Purdee,  6  Otto,  90,  24  L.  ed. 
666;  Groves  v.  Groves,  3  Younge 
&  J.  172;  Douglass  v.  Lucas,  63 
Pa.  St.  9;  Graham  v.  Donaldson, 
5  Watts,  451;  Miller  v.  Blose,  30 
Gratt.  744;  Best  v.  Campbell,  62 
Pa.  St.  478;  Delane  v.  Delane,  7 
Brown  Pari.  C.  279;  Lewis  v.  Rob- 
inson, 10  Watts,  338.  See  Smith 
v.  Patton,  12  W.  Va.  541;  Midner 
v.  Midner,  26  N.  J.  Eq.  299;  Jen- 
nings v.  Shacklett,  30  Gratt.  765. 

2  Cecil  v.  Butcher,  2  Jacob  &  W. 
573;  Tolar  v.  Tolar,  1  Dev.  Eq.  456, 
18  Am.  Dec.  598;  Souerbye  v.  Ar- 
den,  1  Johns.  Ch.  240;  2  Story  Eq. 
Jur.  §  1199;  1  Perry  on  Trusts, 
§  161;  Lewin  on^  Trusts,  116. 


3  Burt  v.  Wilson,  28  Cal.  632,  87 
Am.  Dec.  142;  Bunn  v.  Winthrop, 
1  Johns.  Ch.  329;  Hogan  v.  Jaques, 
19  N.  J.  Ch.  123,  97  Am.  Dec.  644 ; 
Lloyd  v.  Spillett,  2  Atk.  150; 
Hutchins  v.  Lee,  1  Atk.  447;  Young 
V.  Peachy,  2  Atk.  257;  Jackson  v. 
Cleveland,  IS  Mich.  94,  90  Am.  Dec. 
266;  Graff  v.  Rohrer,  35  Md.  327; 
Ownes  V.  Ownes,  23  N.  J.  Eq.  (8 
Green.  C.  E.)  60.  And  see  Randall 
V.  Phillips,  3  Mason,  383;  Rathbun 
V.  Rathbun,  6  Barb.  98;  Leman  v. 
Whitley,  4  Russ.  423;  Graves  v. 
Graves,  29  N.  H.  129;  Philbrook  v. 
Delano,  29  Me.  410;  Morris  v.  Mor- 
ris, 2  Bibb,  311;  Alison  v.  Kurtz,  2 
Watts,  187;  Movan  v.  Hayes,  1 
Johns.  Ch.  339;  Wilkinson  v.  Wil- 
kinson, 2  Dev.  Eq.  376;  Miller  v. 
Wilson,  15  Ohio,  108;  Farrington  v. 
Barr,  36  N.  H.  861 ;  Gerry  v.  Stim- 
son,  60  Me.  186;  Squire  v.  Harder, 
1  Paige,  494,  19  Am.  Dec.  446; 
Titcomb  v.  Morrill,  10  Allen,  15; 
Cairns  v.  Colburn,  104  Mass.  274; 
Bartlett  v.  Bartlett,  14  Gray,  278; 
Whitton  V.  Whitton,  3  Cush.  191 ; 
Jackson  v.  Caldwell,  1  Cowen,  622; 
Walker  v.  Locke,  5  Cush.  90.    But 


2222 


THE  LAW  OF  DEEDS. 


[chap.    XXXII. 


and  his  wife  were  about  to  separate,  and  the  husband,  for 
the  purpose  of  avoiding  questions  of  dower,  had  certain 
property  conveyed  by  an  absolute  deed,  expressing  a  valuable 
consideration  to  a  third  person,  it  was  held  that  where  there 
was  no  assertion  of  fraud,  mistake,  or  contrivance,  the  ab- 
sence of  a  consideration  was  not  sufficient  to  create  a  re- 
sulting trust  in  favor  of  the  grantor.*     Where  two  partners 


see  Blodgett  v.  Hildreth,  103  Mass. 
486;  Haigh  v.  Kaye,  Law  R.  7  Ch. 
469;  McKinney  v.  Burns,  31  Ga. 
295;  Hickman  v.  Hickman,  55  Mo. 
App.  303;  Weiss  v.  Heitkamp,  127 
Mo.  23,  29  S.  W.  Rep.  709. 

*  Jackson  v.  Cleveland,  15  Mich. 
94,  90  Am.  Dec.  266.  "The  case 
stands,"  said  Mr.  Justice  Campbell, 
in  delivering  the  opinion  of  the 
court,  "upon  the  simple  question 
whether  such  a  deed,  because  made 
without  any  consideration  in  fact, 
involves  a  resulting  trust  in  favor 
of  the  grantor.  This  deed  con- 
tains a  recital  of  consideration,  and 
declares  the  uses  in  the  ordinary 
form  in  favor  of  the  grantee,  his 
heirs  and  assigns  in  fee.  It  is  in 
the  form  which  would  have  been 
used  had  the  land  been  bought  and 
paid  for,  and  it  is  designed  upon  its 
face  to  represent  the  grantee  as  an 
ordinary  purchaser.  The  object,  in 
fact,  was  to  vest  in  him  an  inde- 
feasible legal  estate,  whatever  may 
have  been  the  equities.  And  the  in- 
tention to  do  this  was  not  left  sub- 
ject to  revocation,  as  the  recording  of 
the  deed  was  made  with  an  express 
purpose  of  having  Cleveland  en- 
abled to  convey,  as  he  did  convey, 
to  the  first  person  who  became  a 
purchaser  of  a  portion  of  the  es- 
tate. The  equity,  therefore,  which 
is  relied  on  in  this  cause  depends 


upon  the  establishment  of  a  princi- 
ple that  a  voluntary  deed,  where 
no  consideration  in  fact  passes  to 
the  grantor,  is  subject  to  a  trust  in 
his  favor,  and  no  beneficial  title 
vests  in  the  grantee.  This  claim 
is  not  sustained  by  any  authority. 
a  voluntary  deed  which  purports  to 
be  for  the  beneficial  use  of  the 
grantee,  and  which  was  made  de- 
liberately, and  without  mistake  or 
contrivance,  does  not  differ  from 
any  other  deed  in  binding  the 
grantor,  and  can  only  be  attacked 
by  those  having  superior  equities 
which  the  grantor  had  no  right  to 
cut  off— as  creditors  and  the  like. 
The  only  case  approaching  it  is 
where  an  equity  is  raised  against 
a  grantee  in  favor  of  the  person 
who  paid  the  purchase  money. 
This  trust  is  now  abolished  by  our 
statutes,  where  the  person  paying 
the  money  has  consented  to  the 
deed  being  thus  made.  And  it 
could  always  be  rebutted  by  show- 
ing that  the  land  was  intended  to 
vest  beneficially  :  Phillips  v.  Cram- 
niond,  2  Wa.sh.  C.  C.  441,  445,  446; 
Benbow  v.  Townscnd,  1  Mylne  & 
K.  506;  Maddison  v.  Andrew,  1 
Ves.  Sr.  58.  And  in  Delane  v.  De- 
lane,  4  Brown  Pari.  C.  25S,  it  was 
held  that  a  person  paying  purchase 
money,  and  allowing  the  deed  to  be 
made  to  another,  precluded  himself 


CHAP.    XXXII.  I   DEED  TO  ONE,  MONEY  PAID  BY  ANOTHER.     2223 

are  in  debt,  and  one  of  them  executes  an  absolute  deed  ex- 
pressing a  valuable  consideration  of  both  his  individual  prop- 
erty to  the  other  and  his  interest  in  the  partnership  property 
to  the  other,  for  the  purpose  of  enabling  the  latter  to  raise 
money  by  mortgaging  the  same  to  pay  the  debts  of  the  firm 
no  express  trust  is  created,  and  none  is  implied  by  law.^    But 


from  setting  up  any  such  trust  by 
holding  such  person  out  as  the  real 
owner,  and  witnessing  a  lease  made 
by  him  as  such.  Upon  this  princi- 
ple the  action  of  Jacob  Jackson,  in 
procuring  Cleveland  to  deed  the 
parcel  sold,  would  have  rebutted 
such  a  trust,  had  this  been  the  case 
of  a  purchase  by  one  person  in  the 
name  of  another,  and  had  the  stat- 
ute left  such  trusts  to  be  enforced. 
The  presumed  intention  to  claim 
the  title  is  rebutted  by  acquiescence 
in  the  assertion  of  ownership.  This 
doctrine  of  resulting  trusts  has 
never  been  applied  to  mere  volun- 
tary conveyances.  Mere  want  of 
consideration  has  never  raised  re- 
sulting trusts  out  of  these :  Young 
v.  Peachy,  2  Atk.  256;  Lloyd  v. 
Spillet,  2  Atk.  148;  Leman  v.  Whit- 
tey,  4  Russ.  423;  Sturtevant  v. 
Sturtevant,  20  N.  Y.  30,  75  Am. 
Dec.  371.  There  is  a  class  of  cases 
which  were  referred  to  upon  the 
argument,  which  depend  upon  the 
common-law  rule  that  a  feoffment 
without  consideration,  and  which 
declared  no  uses,  created  a  result- 
ing use  to  the  grantor;  or,  in  other 
words,  was  practically  no  convey- 
ance. But  this  doctrine  has  been 
held  to  be  merely  technical  at  law 
and  in  equity,  and  not  at  all  de- 
pendent upon  any  question  of  con- 
sideration.    It  rests  upon  the  prin- 


ciples underlying  the  second  great 
class  of  resulting  trusts,  where  a 
trust  results  in  the  residue  of  all 
estates  after  the  uses  or  trusts  upon 
which  they  are  conveyed  are  ex- 
hausted. And  accordingly,  either 
the  mention  of  a  consideration, 
although  nominal,  or  the  declara- 
tion of  uses,  will  prevent  any  trust 
resulting,  and  confirm  the  title  in 
the  feoffee :  Lloyd  v.  Spillet,  2  Atk. 
148;  Saunders  on  Uses  and  Trusts, 
334,  335;  2  Fonblanque's  Equity, 
133;  1  Spence,  Eq.  449,  450,  451, 
and  cases  cited.  A  court  of  chan- 
cery has  never  ventured  against 
the  expressed  will  of  the  donor, 
appearing  on  the  face  of  the  deed, 
to  'take  the  use  from  the  donee, 
and  give  it  back  to  the  donor.  In 
other  zvords,  uses  annexed  to  a  per- 
fect gift,  however  gratuitous,  zvere 
enforced':  1  Spence,  Eq.  450.  We 
have  found  no  authority  which 
would  justify  us  in  raising  a  trust 
in  the  present  case.  Jackson  saw  fit 
to  leave  Cleveland  untrammeled  by 
any  obligation.  Whether  he  has 
abused  confidence,  as  there  is  great 
reason  to  believe,  or  whether  he 
was,  as  he  claims,  made  a  benefi- 
ciary to  cut  off  others,  is  not  male- 
rial." 

6  Burt  v.  Wilson,  28  Cal.  632,  87 
Am.  Dec.   142, 


2224  THE  LAW  OF  DEEDS.  [CHAP.    XXXII. 

where  the  consideration  for  the  execution  of  a  deed  from  a 
son  to  his  father  is  a  verbal  agreement  by  a  father  to  make 
a  will,  and  devise  to  the  son  certain  property,  and  the  father 
dies  without  having  fulfilled  his  agreement,  it  has  been  held 
on  the  ground  of  the  nullity  of  the  agreement,  and,  therefore, 
the  execution  of  the  conveyance  without  consideration  ex- 
press or  implied,  that  a  trust  results  in  favor  of  the  son  by 
implication  of  law,  and  that  he  may,  on  showing  that  the 
transaction  was  not  a  gift,  set  aside  the  conveyance  and  re- 
cover the  property.^ 

§  1190.  Payment  for  improvements. — When  the  per- 
son holding  the  legal  title  in  trust  has  expended  money  in 
the  payment  of  taxes  or  the  making  of  necessary  improve- 
ments, he  is  entitled  to  hold  the  estate  until  he  has  been 
repaid.  Where  a  person  paid  all  of  the  purchase  money  for  a 
tract  of  land,  but  the  deed  was  made  to  himself  and  his 
sister,  on  the  understanding  and  agreement  that  she  should 
pay  to  him  one-half  of  the  sum  paid  as  the  purchase  price, 
and  he  paid  the  taxes  and  made  permanent  improvements  to 
the  land  by  the  erection  of  buildings  and  clearing  up  the  land, 
it  was  held  that  she  was  not  entitled  to  have  half  the  land 
set  off  to  her,  without  paying  to  her  brother  half  of  the  pur- 
chase money,  and  also  paying  for  half  of  the  improvements.' 

SRuss  V.  Mebius,  16  Cal.  350.  the  manner  ordered  by  a  court  of 
'Maloy  V.  Sloans,  44  Vt.  311.  equity.  The  performance  of  a 
It  was  also  held  in  this  case  that  a  resulting  trust  is  made  by  the  trans- 
suit  at  law  for  partition  might  be  fer  of  the  title  to  the  cestui  que 
perpetually  enjoined  if  the  sum  trust:  Millard  v.  Hathaway,  27  CaL 
due  was  not  within  the  time  and  in  119. 


CHAPTER  XXXIIt 


FIXTURES    PASSING   BY   DEED. 


§  1191.    Definition  of  the  term. 

1192.  General       rule       between 

grantor  and  grantee. 

1193.  Comments. 

1194.  Purchaser  at  sale  on  exe- 

cution. 

1195.  Partition    by     tenants     in 

common. 

1196.  Mortgagee     considered     a 

purchaser. 
1196a.  Some     instances    of     this 
rule. 

1197.  General    rule    as    to    fix- 

tures passing  by  deed. 

1198.  Instances. 

1199.  Notice  of  fixtures. 

1200.  Conveyance    of     structure 

passing  title  to  land. 

1201.  Land  necessary  to  use  of 

structure. 

1202.  Agreement  for  removal. 

1203.  Chattels    not    annexed    to 

the  realty. 

1204.  Same   subject  continued- 

Illustrations. 

1205.  Use  on  the  land. 

1206.  Temporary  removal. 

1207.  Articles  constructively  an- 

nexed. 

1208.  Machinery  in  mills. 

Deeds,  Vol.  II.— 140.  2225 


§  1209.    Removal    without    injury. 

1210.  Comments. 

1211.  Proper  test   for  consider- 
ing machinery  fixtures. 

1212.  Value  added  to  realty. 

1213.  English   view   of   movable 
machinery. 

1214.  American  cases. 

1215.  Different  view. 

1216.  Effect  of  statute. 

1217.  Right    to     remove     under 
contract  of  purchase. 

1218.  Application   of   rule. 

1219.  Reason  for  rule. 

1220.  Some  illustrations. 
1220a.  Buildings. 

1221.  Word  '"fixtures"  in  deed. 

1222.  Contract     of     purchase- 
Payment  of  rent. 

1223.  Question  of  intention  con- 
sidered. 

1224.  Same  subject  continued. 
1224a.  Evidence  of  conversations. 

1225.  Gas   Fixtures. 

1226.  Manure. 

1227.  Permanent  severance. 

1228.  Temporary  severance. 

1229.  Severance  by  act  of  God. 

1230.  Stoves,    furniture,    etc. 


2226  THE  LAW  OF  DEEDS.  [CHAP.    XXXIII. 

§  1191.  Definition  of  the  term. — Various  definitions 
have  been  given  of  the  term  "fixtures,"  and  it  is  difficult  to 
select  or  frame  one  that  would  cover  all  cases,  or  that  would 
not  be  subject  to  objection.  In  its  most  general  signification, 
the  word  embraces  everything  which  Has,  by  artificial  means, 
been  permanently  attached  to  the  freehold.^  Mr.  Ferard  says : 
'The  term  'fixtures'  is  used  by  writers  with  various  significa- 
tions; but  it  is  always  applied  to  articles  of  a  personal  nature, 
which  have  been  affixed  to  land.  On  some  occasions,  no 
further  idea  is  intended  to  be  conveyed  by  the  term  than  the 
simple  fact  of  annexation  to  the  freehold ;  and  hence  have 
arisen  the  popular  expressions  of  landlord's  fixtures,  and  ten- 
ant's fixtures;  of  removable  and  irremovable  fixtures.  The 
name  of  fixtures  is  also  sometimes  applied  to  things  ex- 
pressly to  denote  that  they  cannot  be  legally  removed;  as 
when  they  have  been  annexed  to  a  house,  etc.,  and  the  party 
who  has  affixed  them  is  not  at  liberty  afterward  to  sever 
and  take  them  away.  Thus,  it  is  said,  that  an  article  shall 
fall  in  with  the  lease  to  the  landlord,  or  descend  to  the  heir 
with  the  inheritance  because  it  is  a  fixture.  There  is,  how- 
ever, another  sense  in  which  the  term  "fixtures"  is  very 
frequently  used,  and  which  it  is  thought  expedient  to  adopt 
in  the  following  treatise,  viz.,  as  denoting  those  personal 
chattels  which  have  been  annexed  to  land,  and  which  may  be 
afterward  severed  and  removed  by  the  party  who  has  annexed 
them,  or  his  personal  representatives,  against  the  will  of  the 
owner  of  the  freehold."*    Another  definition  given  is:  "Per- 

1  Fixtures  are  "chattels  or  articles  'fixture'  has  been  used  by  various 
of  a  personal  nature  which  have  writers  and  in  numerous  reported 
been  affixed  to  the  land":  Tomlin's  decisions,  as  denoting  personal 
Law  Diet.  Fixtures.  See  Merritt  chattels  annexed  to  the  land,  which 
V.  Judd,  14  Cal.  59.  may     be     severed     and      removed 

2  Ferard  on  Fixtures,  1,  2.  In  against  the  will  of  the  owner  of  the 
Teaflf  V.  Hewitt,  1  Ohio  St.  511,  freehold  by  the  party  who  has  an- 
524,  59  Am.  Dec.  634;  s.  c.  1  Am.  nexed  them,  or  his  personal  repre- 
Law  Reg.  (O.  S.)  723,  Mr.  Chief  sentatives :  Amos  &  Ferard  on  the 
Justice    Hartley    says:    "The    term  Law  of  Fixtures,  2;  Gibbon's  Man- 


CHAP.   XXXIII.]      FIXTURES  PASSING  BY  DEED. 


2227 


sonal  chattels  affixed  to  real  estate,  which  may  be  severed  and 
removed  by  the  party  who  has  affixed  them,  or  by  his  per- 
sonal  representative  against  the  will   of   the   owner  of   the 


ual    of    the    Law    of    Fixtures,    5; 
Grady's  Law  of  Fixtures,  1 ;  2  Bou- 
vier's  Institutes  of  American  Law, 
162;    2    Kent's    Com.    344.     There 
may  be  some  propriety  in  this  defi- 
nition of  the  term  when  confined  in 
its    application    to    the    relation    of 
landlord  and  tenant,  or  tenant  for 
life  or  years,  and  remainderman  or 
reversioner,  to  which  several  of  the 
elementary    writers    have    confined 
their  attention.    But  it  does  not  ap- 
pear to  express  the  accurate  mean- 
ing of  the  term  in  its  general  appli- 
cation.    An  article  attached  to  the 
realty,     but     which     is     removable 
against  the   will   of   the   owner   of 
the   land,   has   not   lost   the  nature 
and    incidents   of    chattel   property. 
It  is  still  movable  property,  passes 
to  the  executor,  and  not  to  the  heir 
on   the    death   of    the   owner,    and 
may  be  taken  on  execution  and  sold 
as  other  chattels,  etc.    A  removable 
fixture,  as  a  term  of  general  appli- 
cation,  is  a  solecism — a  contradic- 
tion in  words.    There  does  not  ap- 
pear to  be  any  necessity  or  proprie- 
ty  in   classifying  movable  articles, 
which  may  be  for  temporary  pur- 
poses   somewhat    attached    to    the 
land,  under  any  general  denomina- 
tion distinguishing  them  from  oth- 
er chattel  property.     A  tree  grow- 
ing upon  the  soil,  or  any  other  arti- 
cle belonging  to  the  freehold,  may 
be   converted    into   a   chattel   by    a 
severance  from  the  land.     It  is  an 
ancient    maxim    of    the    law    that 
whatever  becomes  fixed  to  the  real- 
ty, thereby  becomes  accessory  to  the 


freehold,    and    partakes    of    all    its 
legal  incidents  and  properties,  and 
cannot    be    severed    and    removed 
without  the  consent  of  the  owner. 
Qiiicqiiid  plantatur  solo,  solo  cedtt, 
is    the  language  of  antiquity  in  which 
the     maxim     has     been     expressed 
the  term   'fixture,'   in  the  ordinary 
signification,    is    expressive    of    the 
act  of  annexation,  and  denotes  the 
change  which  has  occurred  in  the 
nature   and   the   legal   incidents   of 
the  property;  and  it  appears  to  be 
not  only  appropriate,  but  necessary 
to  distinguish  this  class  of  property 
from  movable  property,  possessing 
the  nature  and  incidents  of  chattels. 
It  is  in  this  sense  that  the  term  is 
used  in  far  the  greater  part  of  the 
adjudicated  cases:  Co.  Lit.,  53a,  4; 
2     Smith's     Leading     Cases,     114; 
Chancellor  Kent's  note  a;  2  Kent's 
Com.,  345;  Dudley  v.  Ward,  Ambl, 
113;    Elwes   v.   Mawe,   3   East,   57. 
It  is   said  that   this   rule  has  been 
greatly  relaxed  by  exceptions  to  it, 
established  in   favor  of  trade,  and 
also  in  favor  of  the  tenant,  as  be- 
tween  landlord   and    tenant.     And 
the  attempt  to  establish  the  whole 
doctrine  of  fixtures  upon  these  ex- 
ceptions   to    the    general    rule,    has 
occasioned     much     confusion     and 
misunderstanding    on    this    subject. 
Amos  and  Ferard,  in  their  treatise 
on  the  law  of  fixtures,  mention  the 
division  of  the  subject  into  remov- 
able and  irremovable  fixtures,  and 
give  a  definition  of  each  class.     See 
Amos  &  Ferard  on  Fixtures,  p.  11. 
And  they  remark  'that  it  is  difficult 


2228  THE  LAW  OF  DEEDS.  [CHAP.    XXXIII. 

freehold."  '  In  the  language  of  Baron  Parke,  the  term  "fix- 
tures" "is  used  more  generally  with  reference  to  such  inani- 
mate things  of  a  personal  nature  as  have  become  affixed 
or  annexed  to  the  realty,  but  which  may  be  severed,  disunited, 
or  removed  by  the  party,  or  his  personal  representatives,  who 
has  so  affixed  them  without  the  consent  of  the  owner  of  the 
freehold."  * 

§  1192.     General  rule  between  grantor  and  grantee. — 

Between  landlord  and  tenant,  the  rule  that  a  chattel  attached 
to  the  freehold  becomes  a  part  of  the  realty,  is  applied  with 
less  strictness  than  it  is  when  the  question  arises  between 
grantor  and  grantee.  A  deed  conveys  not  only  the  land  de- 
scribed, but  everything  appurtenant  to  it.  "The  general  rule 
of  law  is,  that  whatever  is  once  annexed  to  the  freehold  be- 
comes parcel  thereof,  and  passes  with  the  conveyance  of  the 
estate.  Though  the  rule  has  been  in  modern  times  greatly 
relaxed,  as  between  landlord  and  tenant,  in  relation  to  things 
affixed  for  the  purposes  of  trade  and  manufacture,  and  also 
in  relation  to  articles  put  up  for  ornament  or  domestic  use, 
it  remains  in  full  force  as  between  vendor  and  vendee.  As 
a  general  thing,  a  tenant  may  remove  what  he  has  added, 

to  determine  in  which  of  the  above  v.    Rickie,    5    Mees.    &    W.     175; 

senses    it    is    most    frequently    em-  Beardsley     v.     Ontario     Bank,     31 

ployed.'     This  classification  of  fix-  Barb.  619,  629;  Rogers  v.  Gilinger, 

tures  may  be  essential  to  a  correct  30  Pa.   St.   185,  12  Am.   Dec.  694 

understanding  of  the  double  sense  Coddington  v.  Beebe,  29  N.  J.  550 

in    which   the    term    has   been    fre-  Climie  v.  Wood,  Law  R.  3  Ex.  257 

quently  used  in  the  authorities,  but  Voorhees  v.  Freeman,  2  Watts  &  S. 

it  would  not  seem  to  be  needed  for  106,  37  Am.  Dec.  490;   Providence 

any  other  purpose."  Gas  Co.  v.  Thurber,  2  R.  I.  22,  55 

3  1  Bouv.  Law  Diet.  tit.  Fixtures.  Am.  Dec.  621 ;  Minnesota  Co.  v.  St. 

4  In  Hallen  v.  Runder,  1  Cromp.  Paul  Co.,  2  Wall.  609,  645,  n; 
M.  &  R.  266,  276;  s.  c,  9  Tyrw.  Hoyle  v.  Plattsburgh  etc.  R.  R.  Co., 
959.  For  other  authorities  in  which  51  Barb.  45;  McGorrisk  v.  Dwyer, 
definitions  have  been  given,  see  78  Iowa,  279,  16  Am.  St.  Rep.  440; 
Pickerell  v.  Carson,  8  Iowa,  544;  Hutchins  v.  Masterson,  46  Tex. 
Prescott  V.  Wells,  3  Nev.  82;  Sheen  £51,  26  Am.  Rep.  286. 


CHAP.    XXXIII.]      FIXTURES  PASSING  BY  DEED. 


2229 


when  he  can  do  so  without  injury  to  the  estate,  unless  it  has 
become  by  its  manner  of  addition  an  integral  part  of  the 
original  premises.     But  not  so  a  vendor;  as  agamst  him,  all 
fixtures  pass  to  his  vendee,  even  though  erected  for  the  pur- 
poses of  trade  and  manufacture,  or  for  ornament,  or  domestic 
use,  unless  specially  reserved  in  the  conveyance."  '     "In  the 
whole  range  of  jurisprudence,"  says  Tarbell,  J.,  "there  is,  per- 
haps, no  subject  more  difficult  of  definite  rules  than  the  matter 
of  fixtures.     The  common-law  rule,  it  is  true,  is  precise,  and 
were  there  no  exceptions  thereto,  would  be  conclusive  upon  this 
case      But  many  exceptions  have  been  sustained  in  favor  of 
tenants  for  the  benefit  of  trade,  and  for  the  protection  and  en- 
couragement of  modern  improvements  in  machinery.    In  favor 
of  tenants  the  greatest  liberality  is  indulged,  while  as  between 
vendor  and  vendee,  and  mortgagor  and  mortgagee,  the  strict- 
est construction  obtains." '    The  general  rule  may  be  stated 


6  Sands  v.  Pfeiffer,  10  Cal.  258, 
264,  per  Field,  J.     It  was  held  in 
that  case  that  the  engine  and  boiler 
permanently  attached  to  a  flour  mill 
which    had    its    foundation   in   the 
ground  was  a  fixture,  and  passed  to 
the  purchaser  of  the  premises  under 
a  decree  of  foreclosure  of  a  mort- 
gage.   In  Crane  v.  Brigham,  UN. 
J.  Eq.  (3  Stockt.)  29,  34,  it  is  said: 
"The  rule  with  regard  to  fixtures 
has  been  much  relaxed,  as  between 
tenant   for  life  or   in  tail   and  re- 
mainderman,  and  also  as  between 
landlord    and   tenant;    but    as    be- 
tween  heir   and    executor,    grantor 
and  grantee,  the  rule  has  undergone 
no  change."  A  church  organ  built 
into  a  church  as  a  part  of  the  struc- 
ture is  a  fixture:  Chapman  v.  Un- 
ion Mut.  L.  Ins.  Co.,  4  111.  App.  29 ; 
Rogers  v.  Crow,  40  Mo.  91,  93  Am. 
Dec.    299.      But    seats    used    in    a 
church    and    not    permanently    at- 


tached are  furniture  merely:  Chap- 
man V.  Union  Mut.  Life  Ins.  Co., 
4   111.   App.   29. 

6  In  Tate  v.  Blackburne,  48  Miss. 
1,  4.     In  Degraflfenreid  v.  Scruggs, 
4   Humph.   451,  455,  40  Am.   Dec. 
658,  Green,  J.,  delivering  the  opin- 
ion of  the  court,  said:  "The  orig- 
inal rule  of  the  common  law  was 
that  everything  which   was  affixed 
to   the   freehold   was   subjected   to 
the    law    governing    the    freehold. 
But  in  later  times  this  rule  has  been 
greatly  relaxed  in  favor  of  tenants, 
and  in  relation  to  fixtures  erected 
for  the  purpose  of  trade.     But  as 
between    executor    annd    heir,    and 
between  the  vendor  and  vendee,  the 
original  rule  prevails  that  whatever 
is    affixed    to    the    freehold    passes 
with    it."      See,    also,    Preston    v. 
Briggs,  16  Vt.  128;  Laflin  v.  Grif- 
fiths,   35    Barb.    58;    Childress    v. 
Wright,  2  Cold.  352 ;  Despatch  Line 


2230  THE  LAW  OF  DEEDS.  [CTIAP.    XXXIII. 

to  be  that,  unless  the  parties  otherwise  provide,  all  fixtures  at- 


of  Packets  v.  Bellamy  Mfg.  Co.,  12 
N.  H.  205,  37  Am.  Dec.  203; 
Holmes  V.  Tremper,  20  Johns.  30, 
11  Am.  Dec.  238;  Murdock  v.  Gif- 
ford,  18  N.  Y.  31;  Burnside  v. 
Twitchell,  43  N.  H.  393;  Snedeker 
V.  Warring,  12  N.  Y.  174;  Lathrop 
V.  Blake,  23  N.  H.  64;  Johnson  v. 
Wiseman,  4  Met.  (Ky.)  359;  Rob- 
inson V.  Preswick,  3  Edw.  Ch.  246; 
Hawes  v.  Lathrop,  38  Cal.  493; 
McKiernan  v.  Hesse,  51  Cal.  594; 
WolfiF  V.  Sampson,  123  Ga.  400,  51 
S.  E.  335.  In  Miller  v.  Plumb,  6 
Cowen,  665,  16  Am.  Dec.  456, 
Woodworth,  J.,  said :  The  more 
important  question  is  whether  the 
potash  kettles,  being  affixed  to  the 
freehold,  passed  with  the  land.  If 
they  did,  the  court  below  erred ; 
and  the  judgment  must  be  reversed, 
unless  the  case  falls  within  some  of 
the  qualifications  or  exceptions  to 
the  general  rule.  That  rule  appears 
to  be  well  established;  whatever  is 
affixed  to  the  freehold  becomes 
part  of  it,  and  cannot  be  removed. 
E.xceptions  have  been  admitted  be- 
tween landlord  and  tenant ;  between 
tenant  for  life  or  in  tail  and  the 
reversioner;  yet  the  rule  still  holds 
between  heir  and  executor.  (Bui. 
N.  P.  34.)  In  Holmes  v.  Tremper, 
20  Johns.  30,  11  Am.  Dec.  238,  Chief 
Justice  Spencer  says :  'When  a  farm 
is  sold  without  any  reservation,  the 
same  rule  would  apply  as  to  the 
right  of  the  vendor  to  remove  fix- 
tures, as  exists  between  the  heir 
and  executor.' " 

In  Fratt  v.  Whittier,  58  Cal.  126, 
41  Am.  Rep.  251,  the  subject  of 
what   are   fixtures,   and   what   rule 


should  prevail  between  grantor  and 
grantee,  was  e.xhaustively  consid- 
ered. It  was  said  by  Mr.  Justice 
McKee  in  the  course  of  the  opinion 
of  the  court:  "What  is  accessory 
to  real  estate  is  according  to  the 
rule  of  the  common-law  part  of  it, 
and  passes  with  it  by  alienation. 
That  rule  has  been,  in  the  growth 
of  the  law,  greatly  modified  as  be- 
tween landlord  and  tenant,  for  the 
encouragement  of  trade,  manufac- 
ture, agriculture,  and  domestic  con- 
venience; and  courts  recognize  and 
enforce  the  right  of  removal  by  a 
tenant,  of  chattels  annexed  to  the 
freehold  for  such  purposes.  But 
the  rule  which  is  applicable  to  per- 
sons in  that  relation  does  not  apply 
as  between  heir  and  executor,  ven- 
dor and  vendee.  As  between  the 
latter  the  rule  of  the  common  law 
is  still  applicable,  except  so  far 
as  it  may  be  modified  by  statutory 
regulation  upon  the  subject.  So 
that  chattels  attached  to  the  free- 
hold by  the  owner,  and  contributing 
to  its  value  and  enjoyment,  pass  by 
the  grant  of  llie  freehold,  if  the 
grantor  had  power  to  convey : 
Tourtellot  v.  Phelps,  4  Gray,  378. 
And  after  conveyance  they  cannot 
be  severed  by  the  vendor  or  any 
one  else  than  the  owner.  As  be- 
tween vendor  and  vendee,  there- 
fore, the  rule  for  determining  what 
is  a  fixture  is  always  construed 
strongly  against  the  seller.  Many 
things  pass  by  a  deed  of  a  house, 
being  put  there  by  the  owner  and 
seller,  which  a  tenant  who  had  put 
them  there  might  have  removed, 
and  they  will  be   regarded  as  fix- 


CHAP,    SXXIII.]       FIXTURES   PASSING  BY  DEED. 


2231 


tached,  even  though  the  attachment  is  sHght,  to  the  freehold 
pass  by  the  deed  to  the  grantee^ 


.tures,  which  pass  to  the  vendee,  al- 
though annexed  and  used  for  pur- 
poses of  trade,  manufacture  or  for 
ornament  or  domestic  use.  Thus, 
potasli  kettles  appertaining  to  a 
building  for  manufacturing  ashes 
(Miller  v.  Plumb,  6  Cowen,  665, 
16  Am.  Dec.  456)  ;  a  cotton-gin 
fixed  in  its  place  (Bratton  v.  Clau- 
sen, 2  Strob.  478)  ;  a  steam  engine 
to  drive  a  bark  mill  (Oves  v. 
Oglesby,  7  Watts,  106)  ;  kettles  set 
in  brick  in  dyeing  and  print  works 
(Despatch  Line  v.  Bellamy  Mfg. 
Co.,  12  N.  H.  207,  37  Am.  Dec. 
203)  ;  iron  stoves  fixed  to  the  brick- 
work of  chimneys  (Goddard  v. 
Chase,  7  Mass.  432)  ;  wainscot 
work,  fixed  and  dormant  tables, 
engines  and  boilers  used  in  a  flour- 
mill  and  attached  to  it  (Sands  v. 
Pfeiffer,  10  Cal.  259)  ;  a  steam  en- 
engines  and  boilers  used  in  a  flour- 
of  timber  and  bedded  in  a  quartz 
ledge,  and  used  for  the  purpose  of 
working  the  ledge  (Merritt  v.  Judd, 
14  Cal.  59)  ;  a  conduit  or  water- 
pipe  to  conduct  water  to  a  house 
(Philbrick  v.  Ewing,  97  Mass. 
134)  ;  hop-poles  in  use  on  a  hop 
farm  (Bishop  v.  Bishop,  11  N.  123. 
62  Am.  Dec.  68)  ;  statutes  erected 
for  ornament,  though  only  kept  in 
place  by  their  own  weight  (Snede- 
ker  V.  Warring,  12  N.  Y.  170)  ;  in 
fact,  whatever  the  vendor  has  an- 
nexed to  a  building  for  the  more 
convenient  use  and  improvement  of 
the  premises,  passes  by  his  deed. 
The  true  rule  deduced  from  all  the 
authorities,  says  the  Supreme  Court 
of  Virginia,  seems  to  be  this,  that 


when  the  machinery  is  permanent 
in  its  character,  and  essential  to  the 
purpose  for  which  the  building  is 
occupied,  it  must  be  regarded  as 
realty,  and  passes  with  the  build- 
ing; and  that  whatever  is  essential 
for  the  purposes  for  which  the 
building  is  used  will  be  considered 
as  a  fixture,  although  the  connec- 
tion between  them  may  be  such 
that  it  may  be  severed  without 
physical  or  lasting  injury  to  either: 
Green  v.  Phillips,  26  Gratt.  752,  21 
Am.  Rep.  323;  Shelton  v.  Ficklin, 
32  Gratt.  735."  See,  also,  Wilson 
V.  Steel,  13  Phila.  153;  Stillman  v. 
Flenniken,  58  Iowa,  450,  43  Am. 
Rep.  120;  Wolff  v.  Sampson,  123 
Ga.  400,  51  S.  E.  335. 

'Leonard  v.  Clough,  133  N.  Y. 
292,  16  L.R.A.  305,  31  N.  E.  93, 
reversing  14  N.  Y.  S.  339;  Bishop 
V.  Bishop,  11  N.  Y.  123,  62  Am. 
Dec.  68;  Weston  v.  Weston,  102 
Mass.  514;  Bryan  v.  Lawrence,  50 
N.  C.  Z2,7;  Mitchell  v.  Billingsley, 
17  Ala.  391;  Isham  v.  Morgan,  9 
Conn.  374,  23  Am.  Dec.  361;  Sey- 
mour V.  Watson,  5  Blackf.  (Ind.) 
555,  36  Am.  Dec.  556;  Redlon  v. 
Barker,  4  Kan.  445,  96  Am.  Dec. 
180;  Hill  V.  Mundy,  89  Ky.  36,  4 
L.R.A.  674,  11  S.  W.  956;  Farrar 
V.  Stackpole,  6  Me.  154,  19  Am, 
Dec.  201 ;  Richardson  v.  Borden, 
42  Mass.  71,  2  Am.  Rep.  595;  Tate 
V.  Blackburne,  48  Miss.  1;  Cohen 
v.  Kyler,  27  Mo.  122;  Rogers  v. 
Crow,  40  Mo.  91,  93  Am.  Dec.  299; 
Burnside  v.  Twitchell,  43  N.  H. 
390;  Cavis  v.  Beckford,  62  N.  H. 
229,  13  Am,  St  Rep.  554;  Roberts 


2232  THE  LAW  OF  DEEDS.  .[CHAP.    XXXIII. 

§  1193.  Comments.— The  relaxation  in  favor  of  ten- 
ants is  placed  upon  grounds  that  do  not  apply  to  grantors. 
The  tenant  has  not  the  control  of  the  land,  and  to  refuse 
him  permission  to  remove  chattels  affixed  by  him  during  his 
tenancy  to  the  realty,  for  the  purpose  of  trade,  manufacture, 
or  agriculture,  would,  in  many  instances,  work  serious  and 
unnecessary,  hardship  upon  him.  But  considerations  of  this 
character,  obviously,  have  no  application  to  a  grantor.  -'The 
latter  exercises  complete  control  over  the  land,  and  all  fixtures 
attached  to  it.  The  law  considers  the  fixtures  as  realty,  and 
if  he  chooses  to  sell  without  reserving  the  right  to  remove 
them,  he  has  no  just  cause  for  complaint  if  that  efifect  is 
given  to  his  deed  which  its  terms  import.y 

§  1194.  Purchaser  at  sale  on  execution. — The  same 
rule  that  prevails  with  reference  to  determining  whether  fix- 
tures pass  by  a  conveyance  made  by  a  private  person  also  ap- 
plies where  a  sale  is  made  by  virtue  of  legal  process.  Where  a 
purchaser  of  land  at  an  execution  sale  claimed  certain  property 
as  fixtures  on  the  ground  that  they  were  attached  to  the 
realty,  the  court  observed :  "This  is  a  sale  by  the  owner 
through  the  instrumentality  of  the  sheriff,  and  the  doctrine  in 
regard  to  fixtures  applicable  to  it  is  that  which  governs  be- 
tween vendor  and  purchaser."  *  Parol  evidence  is  inadmissible 
to  show  that  certain  buildings  were  reserved  by  mutual  con- 
sent from  sale,  the  judgment  debtor  having  the  right  to  re- 
move them,  when  the  return  of  the  officer  does  not 
show  such  an  exception.'  A  steam  engine,  with  its  fixtures, 
was  held  to  be  realty,  and  to  pass  by  a  sale  of  the  freehold 

V.  Dauphin  Deposit  Bank,  19  Pa.  buildings  on  the  land  as  of  little 
St.  71 ;  Cole  v.  Roach,  37  Tex.  413.  value,  directed  the  officer  not  to 
8  Farrar  v.  Chauffetete,  5  Denio,  set  them  off,  but  to  appraise  suffi- 
529.  cieiit  land  exclusive  of  the  build- 
-in a  case  in  Maine,  an  offer  ings  to  satisfy  the  execution,  which 
was  made  to  show  that  the  cred-  he  did;  that  at  the  time  livery  of 
itor's   attorney,   considering  certain  seisin   was  made,  the  attorney  de- 


CHAP,    XXSIII.]       FIXTURES  PASSING  BY  DEED. 


upon  execution,^  So  a  marine  railway,  consisting  of  iron 
and  wooden  rails,  endless  chain,  gear,  wheels,  and  ship  cradle, 
was  held  to  pass  by  a  levy  and  sale  of  the  realty  upon  execu- 
tion.* 

§  1195.     Partition  by  tenants  in  common. — The  rule  is 
the  same  when  the  question  arises  on  a  partition  made  by 


clared  that  the  buildings  did  not 
belong  to  the  creditor,  but  to  the 
execution  debtor,  who  might  re- 
move them  when  he  chose ;  that  the 
buildings  were  accidentally  omitted 
from  the  officer's  return,  and  that 
they  stood  on  blocks  without  any 
foundation  sunk  into  the  ground. 
The  court  held  that  there  was  no 
difference  between  a  conveyance  by 
legal  process  and  a  conveyance  by 
deed  in  the  rules  of  construction, 
and  that  parol  evidence  was  inad- 
missible to  show  that  the  buildings 
were  excepted  :  Waterhouse  v.  Gib- 
son, 4  Greenl.  230.  Weston  J., 
delivering  the  opinion  of  the  court, 
said  :  "In  determining  whether  the 
barn  and  shop  in  question  belonged 
to  the  plaintiff,  we  must  regard  the 
levy  of  Brooks  upon  the  land  of  his 
execution  debtor.  Jack,  as  having 
the  same  effect  as  if  the  latter  had 
passed  the  land  to  the  former  by 
deed.  Jack  was  the  owner  of  the 
buildings  as  well  as  of  the  land,  and 
if  he  had  conveyed  the  land  by 
deed,  without  any  exception  or 
reservation,  we  entertain  no  doubt 
that  the  buildings  thereon  standing 
would  have  passed.  .  .  .  The 
levy  operating  upon  the  buildings 
as  well  as  the  land,  it  was  not  com- 
petent to  show  that  the  former  was 
excepted  by  parol  testimony.  Tliis 
would  be  materially  to  vary  and 
modify  by  parol  the  effect  of  written 


evidence  which  by  law  is  clearly 
inadmissible." 

^Oves  v.  Ogelsby,  7  Watts,  106. 
See,  also,  Stillman  v.  Flenniken,  58 
Iowa,  450,  43  Am.  Rep.  120. 

2  Strickland  v.  Parker,  54  Me. 
263.  See,  also.  Trull  v.  Fuller,  28 
Me.  545;  Moore  v.  Smith,  24  111. 
512;  Payne  v.  Farmers'  etc.  Bank, 
29  Conn.  415;  Symonds  v.  Harris, 
51  Me.  14,  81  Am.  Dec.  553;  Boyle 
V.  Swanson,  6  La.  Ann.  263;  Powell 
v.  Monson  etc.  Mfg.  Co.,  3  Mason, 
459;  Taylor  v.  Plunkett,  56  Atl. 
384,  4  Pennewill,  467;  Off  v.  Fink- 
elstein,  100  111.  App.  14,  judgment 
affirmed,  200  111.  40;  65  N.  E.  439; 
Thomson  v.  Smith,  111  Iowa,  718, 
50  L.R.A.  780,  83  N.  W.  789,  82 
Am.  St.  Rep.  541;  Second  Nat. 
Bank  of  Colfax  v.  Hatch,  64  Pac. 
727,  24  Wash.  421.  Chairs,  stage 
appliances,  drop  curtain  etc.,  of 
opera  house  pass  to  the  execution 
purchaser :  Murray  v.  Bender,  63 
L.R.A.  783,  125  Fed.  705,  60  C.  C. 
A.  473.  Also  see  Bender  v.  King, 
111  Fed.  60:  Corn  Mill,  Bigler  v. 
Brashear,  11  Rob.  484;  Carding 
Machine,  Baker  v.  Davis,  19  N.  FI. 
325;  Dynamos  and  Exciters,  New 
York  Security  &  Trust  Co.  v.  Sara- 
toga Gas  &  Electric  Light  Co.,  157 
N.  Y.  689;  51  N.  E.  1092;  Reyn- 
olds V.  New  York  Security  & 
Trust  Co.,  Id. 


2234 


THE  LAW  OF  DEEDS.  [CHAP.    XXXIII. 


cotenants.  Where  two  persons  were  tenants  in  common  of  a 
piece  of  land,  and  one  of  them  with  the  consent  of  the  other 
erected  at  his  sole  expense  a  store,  permanently  annexing  it 
to  the  freehold,  it  was  held  in  an  action  of  partition  tliat  the 
store  could  not  be  treated  as  the  separate  property  of  the 
cotenant  who  erected  it.^  "The  question  is  one  between  tenants 
in  common,  the  owners  of  the  fee;  and  is,  we  think,  to  be  de- 
cided on  the  same  principle,  as  if  partition  had  been  effected 
by  the  parties  through  mutual  deeds  of  bargain  and  sale.  As 
between  such  parties,  the  doctrine  of  fixtures  making  a  part 
of  the  freehold,  and  passing  with  it,  is  more  extensively  ap- 
plied than  between  any  others."  * 

§  1196.     Mortgagee  considered  a  purchaser. — The  rule 
that  applies  between  grantor  and  grantee  also  applies  between 


'  Baldwin  v.  Breed,  16  Conn.  60. 
Williams,  C.  J.,  delivering  the  opin- 
ion of  the  court,  said :  "The  title 
of  a  purchaser  or  creditor  ought 
not  to  be  qualified  or  impaired,  for 
want  of  an  inquiry  as  to  which  of 
the  tenants  in  common  planted  the 
trees,  set  the  hedges,  or  erected  the 
fences  or  buildings ;  no  authority 
has  been  shown  and  no  usage 
proved  in  support  of  such  a  claim. 
And  when  we  consider  the  extreme 
uncertainty  as  to  title  which  would 
result  from  the  adoption  of  such 
a  principle,  and  the  embarrassments 
which  would  attend  the  purchaser 
and  the  creditors,  together  with  the 
anxious  care  which  our  law  has 
shown  in  making  as  public  as  pos- 
sible the  title  to  real  estate,  we  can- 
not consent  to  incorporate  the  prin- 
ciple contended  for,  unless  com- 
pelled by  authority.  ...  In  the 
absence,  then,  of  any  special  agree- 
ment between  the  parties,  we  think 


neither  a  court  of  law  nor  a  court 
of  chancery  could  treat  this  store 
as  the  separate  property  of  one  of 
these  tenants  in  common.  And  the 
remark  of  Tilghman,  C.  J.,  in  Lyle 
V.  Ducomb,  5  Binn.  588,  is  entirely 
applicable  to  this  case:  'The  idea 
of  separating  the  building  from  the 
ground  on  which  it  stands  is  alto- 
gether novel,  and  cannot  be  carried 
into  effect  without  great  difficulty.'" 
*  Cowen,  J.,  in  Walker  v.  Sher- 
man, 20  Wend.  636,  638.  See,  also, 
Parsons  v.  Copeland,  38  Me.  537 ; 
Plumer  v.  Plum^r,  30  N.  H.  (1^ 
Post.)  558,  569.  In  Plumer  r. 
Plumer,  supra,  it  was  held  that 
where  a  partition  of  real  estate  is 
made  under  the  decree  of  the  court, 
all  the  incidents  and  appurtenances 
attached  to  the  several  parts  of  the 
land,  pass  to  the  persons  to  whom 
they  have  assigned,  unless  a  dif- 
ferent order  is  made. 


CHAP.    XXXIII.]       FIXTURES   PASSING  BY  DEED.  2235 

mortgagor  and  mortgagee.  The  mortgagor  is  the  owner  of 
the  fee.  The  reason  that  causes  the  ancient  rule  that  a  chattel 
afifixed  to  the  realty  becomes  a  part  of  it,  to  be  enforced  in 
all  its  rigor  against  a  grantor,  applies  with  equal  force  when 
fixtures  are  erected  by  a  mortgagor.  He  has  the  power  of 
exempting  them  from  the  operation  of  his  mortgage,  if  he 
so  desires.  If  he  does  not  do  so,  the  general  terms  of  descrip- 
tion in  the  instrument  are  to  be  construed  by  the  same  rules 
as  if  they  were  inserted  in  an  absolute  conveyance.  In  a  case 
where  a  steam-engine  and  boilers,  and  the  engines  and  frames 
adapted  to  be  moved  and  used  by  the  steam-engine  by  means 
of  connecting  wheels,  were  held  to  be  a  part  of  realty,  as 
between  mortgagor  and  mortgagee.  Chief  Justice  Shaw  ob- 
served :  "A  different  rule  may  exist  in  regard  to  the  respective 
rights  of  tenant  and  landlord,  tenant  for  life,  and  remainder- 
man or  reversioner,  and,  generally,  when  one  has  a  temporary, 
and  not  a  permanent  interest  in  land.  In  tliose  cases,  the 
rule  as  to  what  shall  constitute  fixtures  is  much  relaxed  in 
favor  of  those  who  make  improvements  on  the  real  estate 
of  others,  for  the  purposes  of  trade  or  other  temporary  use 
and  enjoyment.^  But  the  case  of  mortgagor  and  mortgagee 
stands  upon  a  different  footing.  The  mortgagor,  to  most  pur- 
poses, is  regarded  as  the  owner  of  the  estate;  indeed,  he  is 
so  regarded  to  all  purposes,  except  so  far  as  it  is  necessary 
to  recognize  the  mortgagee,  as  legal  owner,  for  the  purposes 
of  his  security.  The  improvements,  therefore,  which  the  mort- 
gagor, remaining  in  the  possession  and  enjoyment  of  the  mort- 
gaged premises,  makes  upon  them,  in  contemplation  of  law 
he  makes  for  himself,  and  to  enhance  the  general  value  of 
the  estate,  and  not  for  its  temporary  enjoyment ;  whereas,  a 
tenant,  making  the  same  improvements  upon  the  estate  of 
another,  with  a  view  to  its  temporary  enjoyment,  must  be 
presumed  to  do  it  for  himself,  and  not  for  the  purpose  of 
enhancing  the  value  of  the  freehold.     This  rule,  of  course, 

»  Citing  Gaffield  v.  Hapgood,   17      Pick.  192,  28  Am.  Dec.  290. 


2236  THE  LAW  OF  DEEDS.  CHAP.    XXXIII. 

will  apply  only  to  that  class  of  improvements  consisting  of 
articles  added,  and  more  or  less  permanently  affixed  to  the 
realty,  in  regard  to  which  it  is  doubtful  whether  they  are 
thereby  made  part  of  the  realty  or  not,  and  when  that  ques- 
tion is  to  be  decided  by  the  presumed  intent  of  the  party 
making  them.  Take,  for  instance,  the  case  of  a  dye  kettle 
set  in  brickwork,  which  is  for  the  time  annexed  to  the  freehold, 
but  which  may  be  removed  without  essential  injury  to  the 
building,  and  so  as  to  leave  the  premises  in  as  good  a  con- 
dition as  if  it  had  not  been  set.  If  so  set  by  an  owner  of 
the  fee  for  his  own  use,  it  would,  we  think,  be  regarded 
as  a  fixture,  an  addition  made  to  the  realty  by  its  owner  as 
an  improvement,  and  would  pass  to  the  heir  by  descent,  or 
to  the  devisee  by  will.  But  if  the  same  addition  had  been 
made  by  a  tenant  for  years,  for  the  purpose  of  carrying  on 
his  own  business,  we  think  he  would  have  a  right  to  remove 
it,  provided  he  exercise  that  right  whilst  he  has  the  rightful 
possession  of  the  estate,  that  is,  before  the  expiration  of  his 
term.  .  .  .  It  is  obvious  that  this  question  cannot  arise 
where  there  is  any  express  stipulation  in  the  mortgage  deed, 
declaring  either  that  such  improvements  to  be  made,  and 
which  are  in  their  nature  equivocal,  shall  or  not  be  deemed 
fixtures  and  be  bound  as  part  of  the  realty.  The  question  is, 
what  is  the  reasonable  and  legal  construction  of  a  deed,  grant- 
ing an  estate  or  mortgage  in  the  usual  terms,  where  there  is 
no  stipulation  on  the  subject?  Such  a  deed  must,  of  course, 
include  all  additions  which  become  dc  facto  part  of  the  realty, 
and  which  are  not  in  their  nature  equivocal ;  because  a  title 
to  the  whole  includes  every  part.  In  regard  to  articles  doubt- 
ful in  their  nature,  we  have  already  stated  as  our  opinion, 
that  if  added  by  the  mortgagor  it  is  to  be  considered  as  done 
by  way  of  pennanent  improvement,  for  the  general  benefit 
of  the  estate,  and  not  for  its  temporary  enjoyment.^  One  of 
the  objects,  and  indeed  one  of  the  most  usual  purposes  of 

« Citing  Hunt  v.  Hunt,  14  Pick.       386,  25  Am.  Dec.  400. 


CHAP.    XXXIII.]      FIXTURES  PASSING  BY  DEED.  2237 

mortgaging  real  estate,  is  to  enable  the  owner  to  raise  money 
to  be  expended  on  its  improvement.  If  such  improvements 
consist  in  actual  fixtures,  not  doubtful  in  their  nature,  they 
go,  of  course,  to  the  benefit  and  security  of  the  mortgagee,  by 
increasing  the  value  of  the  pledge.  The  expectation  of  such 
improvement  and  such  increased  value  often  enters  into  con- 
sideration of  the  parties,  in  estimating  the  value  of  the  prop- 
erty to  be  bound,  and  its  sufficiency  as  security  for  the  money 
advanced.  And  we  think  the  same  rule  must  apply  to  those 
articles  which,  in  their  own  nature,  are  doubtful,  whether 
actual  fixtures  or  not,  on  the  ground  of  the  presumed  inten- 
tion of  the  parties.  A  presumption  arises  from  the  relation 
in  which  they  stand,  that  such  improvements  are  intended  to 
be  permanent,  and  not  temporary,  and  that  the  freehold  and 
the  improvements  intended  to  be  made  upon  it  are  not  to 
be  severed,  but  to  constitute  one  entire  security.  The  mort- 
gage is  usually  but  a  collateral  security  for  money  which  the 
mortgagor  binds  himself  to  pay,  and  is,  therefore,  a  hypothe- 
cation only,  and  not  an  alienation  of  the  mortgaged  estate. 
And  in  this  respect  the  distinction  between  the  tenant  for 
years  and  the  mortgagor  is  broad  and  obvious.  The  tenant 
for  years  can  have  no  benefit  from  his  improvements  after 
the  expiration  of  his  term,  but  by  removal ;  but  the  mortgagor' 
has  only  to  pay  his  debt,  as  he  is  bound  to  do,  and  as  it  is 
presumed  he  intends  to  do,  and  then  he  has  all  the  benefit 
of  his  improvements  in  the  enhanced  value  of  the  estate  to 
which  they  have  been  annexed.  The  latter,  therefore,  may 
be  presumed  to  have  intended  to  annex  the  improvements  to 
the  freehold,  and  make  them  permanent  fixtures;  whilst  the 
former  must  be  presumed,  from  his  obvious  interest,  to  erect 
the  improvements  for  his  own  temporary  accommodation  dur- 
ing his  term,  intending  to  remove  them  before  its  expiration."  ' 

''In  Winslow  v.  Merchants'  Ins.  Barb.  58,  the  owner  of  a  piece  of 
Co.,  4  Met.  306,  310,  312,  38  Am.  real  estate  erected  on  it  a  keg  fac- 
Dec.  368.     In  Laflin  v.  Griffiths,  35       tory,  and  placed  in  the  factory  ma- 


2238 


THE  LAW  OF  DEEDS.  [CHAP.    XXXIII. 


Even  where  the  fixtures  are  attached  after  the  execution  of 
the  mortgage  the  title  of  the  mortgagor  to  them  will  be 
superior  to  that  of  a  judgment  creditor.'  Wliere  a  sale  was 
ordered  made  under  a  trust  deed  to  secure  the  payment  of 
an  indebtedness  it  was  held  that  the  machinery  placed  in  a 
paper  mill  became  a  fixture  and  a  part  of  the  freehold,  and 
should  be  sold  as  a  part  of  the  realty.'  The  right  to  fixtures 
of  a  receiver  appointed  for  the  mortgagor  is  subordinate 
to  the  right  of  the  mortgagee.^ 


chinery  for  the  purpose  of  carrying 
on  his  business.  He  executed  a 
mortgage  upon  the  premises,  and, 
as  this  was  not  paid  when  it  be- 
came due,  the  mortgagee  took  pos- 
session. A  year  prior  to  this  a 
creditor  had  recovered  a  judgment 
against  the  owner  of  the  fee,  and 
the  execution  was  levied  upon  a 
part  of  the  machinery  and  imple- 
ments of  the  factory,  which  were 
removed  from  the  building  by 
means  of  levers.  The  court  held 
that  the  articles  of  machinery  were 
fixtures,  and  passed  to  the  mort- 
gagee; Gould,  J.,  delivering  the 
opinion  of  the  court,  and  saying: 
"In  considering  this  case,  and  de- 
termining whether  the  articles  in 
question  were  or  were  not  fixtures, 
we  are  to  follow  the  decision  in 
Snedeker  v.  Warring,  2  Kern,  174, 
holding  the  same  rule,  as  between 
mortgagor  and  mortgagee,  that 
would  be  held  as  between  grantor 
and  grantee.  And  this,  whether  the 
mortgagee  were  or  were  not  in  pos- 
session of  the  premises.  Nor  can 
there  be  any  doubt,  if  the  property 
before  detached  were  fixtures,  that 
the  person  having  the  title  to  the 
realty  could  sue  for  the  specific  re- 
covery cf  the  things  themselves,  or 


in  trespass  for  the  damages  to  the 
freehold." 

In  Cullvvick  v.  Swindell,  3  Eq. 
Cas.  L.  R.  248,  251.  See,  also,  Cull- 
wick  v.  Swindell,  3  Eq.  Cas.  L.  R. 
249;  Robinson  v.  Preswick,  3  Edw. 
Ch.  246;  Coleman  v.  Stearns'  Mfg. 
Co.,  38  Mich.  30;  Main  v.  Schwarz- 
waelder,  4  Smith,  E.  D.  273 ;  Long- 
staff  V.  Meagoe,  2  Ad.  &  E.  167; 
Quinby  v.  Manhattan  etc.  Co..  24 
N.  J.  Eq.  260;  Rogers  v.  Brokaw, 
26  N.  J.  Eq.  563;  Clark  v.  Reyburn, 
I  Kan.  281 ;  Harris  v.  Haynes,  34 
Vt.  220;  Gale  v.  Ward,  14  Mass. 
552,  7  Am.  Dec.  223;  McKim  v. 
Mason,  3  Md.  Ch.  186;  Lathrop  v. 
Blake,  3  Post.  46;  Sparks  v.  State 
Bank,  7  Blackf.  469 ;  Rice  v.  Adams, 
4  Har.  (Del.)  332;  Corliss  v.  Mc- 
Lagin,  29  Me.  llS;  Preston  v. 
Briggs,  16  Vt.  124. 

8  New  York  Security  etc.  Co.  v. 
Saratoga  Gas  etc.  Light  Co.,  157 
N.  Y.  689,  51  N.  E.  1092,  affirming 
88  Hun,  569,  34  N.  Y.  S.  890. 

9  Hill  v.  Farmers'  &  Mechanics' 
Nat.  Bank,  97  U.  S.  450,  24  L. 
ed.  1051. 

1  Feder  v.  Van  Winkle,  53  N.  J. 
Eq.  370,  33  Atl.  399,  51  Am.  St. 
Rep.  628.  A  mortgagee  is  con- 
sidered a  purchaser  as  to  fixtures: 


CHAP.    XXXIII.]      FIXTURES  PASSING  BY  DEED. 


2239 


§  1196a.  Some  instances  of  this  rule. — Where  a  con- 
trary intention  does  not  appear  it  will  be  presumed  as  be- 
tween the  mortgagor  and  mortgagee  that  upholstered  turn- 
over theater  chairs,  arranged  in  an  auditorium  in  rows  in  the 
customary  manner,  and  made  fast  to  the  floors  by  screws, 
are  a  part  of  the  realty.^  Although  chattels  may  be  severed 
from  a  building  without  injury  and  used  elsewhere,  still  if 
they  have  been  placed  in  an  annex  to  the  building  with 
the  object  of  accomplishing  the  purposes  for  which  the  build- 
ing was  erected  or  to  which  it  has  been  adopted,  with  the 
intention  of  increasing  permanently  the  value  of  the  building, 
they  become,  as  between  the  owner  and  a  mortgagee,  fixtures 


Bigler  v.  Newburgh  Nat.  Bank,  97 
N.  Y.  630,  affirming  26  Hun,  520; 
McFadden  v.  Allen,  50  Hun,  361,  3 
N.  Y.  S.  356;  Snedeker  v.  War- 
ring, 12  N.  Y.  170;  Bishop  v. 
Bishop,  11  N.  Y.  123,  62  Am.  Dec. 
68;  Johnston  v.  Philadelphia  Mortg. 
Co.,  129  Ala.  515,  30  So.  15,  87  Am. 
St  Rep.  75;  Atlantic  Safe  Deposit 
etc.  Co.  V.  Atlantic  City  Laundry, 
64  N.  J.  Eq.  140,  53  Atl.  312;  Dela- 
ware etc.  R.  Co.  V.  Oxford  Iron 
Co.,  36  N.  J.  Eq.  452;  Knicker- 
bocker Trust  Co.  V.  Penn.  Cordage 
Co.,  66  N.  J.  Eq.  305,  58  Atl.  409; 
McRea  v.  Troy  Cent.  Nat.  Bank, 
66  N.  Y.  489;  Hamlin  v.  Parsons, 
12  Minn.  108,  90  Am.  Dec.  284; 
Woodham  v.  Crookston  First  Nat. 
Bank,  48  Minn.  67,  50  N.  W.  1015, 
31  Am.  St.  Rep.  622;  Burnside  v. 
Twitchell,  43  N.  H.  380;  Sturgis 
Nat.  Bank  v.  Levanseler,  115  Mich. 
372,  73  N.  W.  399;  Union  Water 
Co.  V.  Murphy's  Flat  Fluming  Co., 
22  Cal.  620;  Corliss  v.  McLagin, 
29  Me.  115;  Arnold  v.  Crowder,  81 
111.  56,  25  Am.  Rep.  260;  Dudley 
V.  Hurst,  67  Md.  44,  8  Atl.  901,  1 


Am.  St.  Rep.  368;  Mutual  Ben.  L. 
Ins.  Co.  V.  Huntington,  57  Kan. 
744,  48  Pac.  19;  Hopewill  Mills  v. 
Taunton  Sav.  Bank,  150  Mass.  519, 
6  L.R.A.  249,  23  N.  E.  327,  15  Am. 
St.  Rep.  235;  Muehling  v.  Muehl- 
ing,    181   Pa.   St.  483,  37  Atl.   527, 

59  Am.  St.  Rep.  674;  Sturgis  v. 
Warren,  11  Vt.  433.  It  is  held  that 
chandeliers  in  a  club  house  are  af- 
fected by  the  lien  of  a  mortgage : 
Berliner  v.  Piqua  Club  Assn.,  32 
Misc.  (N.  Y.)  470,  66  N.  Y.  S. 
691,  but  it  is  also  held  that  chande- 
liers in  a  theater  are  not  to  be  con- 
sidered fixtures  as  against  a  pur- 
chaser of  them:  New  York  L.  Ins. 
Co.  V.  Allison,  107  L.  ed.  179,  46 
C.  C.  A.  229:  as  against  a  me- 
chanic's lien  on  a  house  they  have 
been  held  not  to  be  fixtures :  Mc- 
Farlane  v.  Foley,  27  Ind.  App.  484, 

60  N.  E.  357,  87  Am.  St.  Rep.  264. 
2  New  York  Life  Ins.  Co.  v.  Al- 
lison, 107  Fed.  179,  46  C.  C.  A. 
229.  See,  also,  Filley  v.  Christop- 
her, 39  Wash.  22,  80  Pac.  834,  109 
Am.  St.  Rep.  853. 


2240  THE  LAW  OF  DEEDS.  [CHAP.    XXXIII. 

and  a  part  of  the  realty.^  If  permanent  improvements  are 
placed  upon  the  land  either  by  the  mortgagor  or  one  claiming 
under  him,  they  are  subject  to  the  lien  of  a  mortgage,  and 
if  there  be  subsequent  mortgagees  they  can  claim  only  the 
surplus,  if  there  be  any  remaining,  after  the  satisfaction  of 
the  first  mortgage  lien.*  A  mortgage  upon  a  mill  will  cover 
all  things  used  in  it  which  are  a  part  of  its  complete  system, 
essential  to  its  operation  and  which  have  been  placed  in  it 
with  the  intention  that  they  should  be  permanently  attached.^ 
Nursery  trees  planted  by  the  mortgagor  constitute  a  part 
of  the  realty.^  Electric  light  fixtures  of  a  hotel  are  a  part 
of  the  realty."^  Even  if  placed  upon  the  property  after  the 
execution  of  the  mortgage,  chattels  cannot  be  removed  dur- 
ing the  existence  of  the  mortgage  without  the  consent  of  the 
mortgagee.^  A  hot  water  heating  apparatus  and  hot  water 
tank  and  fixtures  become  merged  in  the  realty.'  But  curtains, 
window  screens,  screen  doors,  a  sideboard,  a  windmill,  globes 
for  electric  and  gas  lights,  and  gas  and  electric  fixtures  at- 
tached to  the  property  do  not  become  a  part  of  the  realty 
covered  by  a  mortgage.^  A  mortgagor  in  possession  of  the 
property  mortgaged  cannot,  without  the  mortgagee's  consent, 
authorize  another  to  erect  buildings  on  the  mortgaged  prop- 
erty and  remove  them.* 

8  Knickerbocker     Trust     Co.     v.  Co.  v.  Bathgate,  15  Okl.  87,  79  Pac. 

Penn.    Cordage   Co.,   66   N.    J.    Eq.  903. 

20S,  58  Atl.  409,  105  Am.  St.  Rep.  ^  Young  v.  Hatch,  99  Me.  465,  59 

64o!  -^tl.  950. 

4  Mutual  Benefit  Life  Ins.  Co.  v.  ^  Hall  v.  Law  Guarantee  &  Trust 

Huntington,  57   Kan.  744,  48   Pac.  Soc.    etc.,   22   Wash.   305.   60    Pac. 

19.  643,  79  Am.  St.  Rep.  935. 

6  Cook  V.   Condon,  6  Kan.   App.  «  Ekstrom  v.  Hall,  90  Me.  186,  38 
574,  51   Pac.  587.  Atl.  106.     See  for  various  cases  as 

8Du    Bois    V.    Bowles,    30    Colo.  between  mortgagor  and  mortgagee: 

44,  69  Pac.   1067.  Eroadees   v.    Smith,    121    Ala.   335, 

7  Canning  v.  Owen,  22  R.  I.  624,  26   So.   34,    77   Am.    St.    Rep.   61 ; 
48  Atl.  1083,  84  Am.  St.  Rep.  858.  Meriam  v.  Brown,   128  Mass.  391 ; 

SEkstrom   v.    Hall,   90   Me.    186,       Best  v.   Hardy,  123  N.   C.  226,  31 
38  Atl.   106;   Great   Western   Mfg,       S.  E.  391;  Blue  v.  Gunn,  114  Tenn. 


CHAP.    XXXIII.]       FIXTURES  PASSING  BY  DEED.  2241 

§  1197.     General  rule  as  to  fixtures  passing  by  deed. — 

As  a  general  rule,  all  fixtures  annexed  to  the  realty  pass  by 
a  deed  of  the  land.  Thus,  a  dyehouse  and  dye  kettles  secured 
in  brickwork  become  a  part  of  the  realty,  and  are  transferred 
by  a  deed  of  the  land  without  express  words.^  Between 
vendor  and  vendee,  a  bathing  tub  and  lead  waterpipes  fastened 
to  the  walls  and  floor  of  a  building  by  nailing  are  fixtures, 
and  pass  by  a  deed  of  the  land  on  which  they  are  placed. 
"The  necessary  pipes  for  conducting  water  through  the  apart- 
ments of  a  dwelling-house  and  into  a  bathroom  add  greatly  to 
the  value,  comfort,  and  convenience  of  the  building,  and  a 
purchaser  who  appreciated  such  things  would  be  sadly  dis- 
appointed after  he  had  received  his  deed,  to  find  the  house 
stripped  of  such  fixtures."  *  A  purchaser  is  entitled  to  a 
furnace  so  placed  in  a  house,  that  its  removal  would  necessarily 
cause  the  brickwork  of  tlie  house  adjoining  the  furnace  to  be 
disturbed,  and  a  portion  of  the  ceiling  to  fall.^  Potash  kettles 
set  in  an  arch  of  mason  work  with  a  chimney,  the  arches 
being  set  upon  a  platform  but  not  fastened  to  the  building, 
were  held  to  pass  by  a  deed  of  the  premises.^  In  a  case  in 
North  Carolina,  stills,  put  up  for  distilling,  incased  in  brick 
and  mortar  work;  a  large  copper  kettle,  put  up  for  cooking 
food  for  hogs,  which  was  also  incased  in  brick  and  mortar 
work;  and  rough  plank,  put  into  a  ginhouse  to  spread  cotton 

414,  69  L.R.A.  892,  87  S.  W.  408,  v.  Blossom,  66  Minn.  421,  69  N.  W. 

108  Am.  St.  Rep.  912;  Fuller-War-  221,  61  Am.  St.  Rep.  431;  Home- 

ren  Co.  v.  Harter,  110  Wis.  80,  53  stead  Land  Co.  v.  Becker,  96  Wis. 

L.R.A.  603,  85  N.  W.  698,  84  Am.  206,  71  N.  W.  117;  National  Bank 

St    Rep.    867;    Condit   v.    Godwin,  of  Sturgis  v.  Levanseler,  115  Mich, 

95   N.   Y.   S.    1122,    107   App.   Div.  372,  12>  N.  W.  399. 

616;  McConnell  v.  Blood,  123  Mass.  ^  Noble  v.  Bosworth,  19  Pick.  314. 

47,  25  Am.   Rep.   12;    Carpenter  v.  *  Cohen  v.   Kyler,  27   Mo.   122. 

Walker,  140  Mass.  416,  5  N.  E.  160;  5  Main     v.     Schwarzwaelder,     4 

Studley  v.  Ann  Arbor  Sav.   Bank,  Smith,  E.  D.  273;  Mather  v.  Frazer, 

112  Mich.  81,  70  N.  W.  426;  Lyle  2  Kay  &  J.  536. 

V.  Palmer,  42  Mich.  314,  3   N.  W.  6  Miller  v.  Plumb,  6  Cowen,  665. 

921 ;  Lord  v.  Detroit  Sav.  Bank,  132  16  Am.  Dec.  456. 
Mkh.  510,  93  N.  W.  1063 ;  Shepard 
Deeds,  Vol.  II.— 141. 


2242 


THE  LAW   OF  DEEDS.  [CHAP.    XXXIII. 


seed  upon,  though  not  nailed  down— were  all  held  to  be  fixtures 
that  pass  by  a  deed  conveying  the  fee.'  A  deed  of  the  prem- 
ises will  convey  shelves,  drawers,  and  counter-tables,  put  up 
by  the  owner  to  fit  the  building  for  the  use  of  a  retail  dry 
goods  and  grocery  store,  and  without  which  the  building  is 
not  adapted  to  the  business.'    Where  a  hotel  is  conveyed  for 


'  Bryan  v.  Lawrence,  5  Jones 
(N.  C),  337.  See  Union  Bank  v. 
Emerson,  15  Mass.  159;  Despatch 
Line  v.  Bellamy  Mfg.  Co.,  12  N. 
H.  205,  37  Am.  Dec.  203;  Bullard 
V.  Hopkins,  128  la.  703,  105  N.  W. 
197.  A  stone  derrick  fastened  by 
a  post  in  the  ground  and  by  guy 
ropes,  though  it  is  capable  of  re- 
moval from  point  to  point,  is  not 
a  fixture:  Honeyman  v.  Thomas, 
25  Or.  539.  A  gasoline  engine 
placed  on  a  stone  foundation  in  a 
building  for  the  purpose  of  operat- 
ing machinery  and  grinding  feed 
is  a  part  of  the  realty  and  passes 
under  a  deed  thereof:  State  Secu- 
rity Bank  v.  Hoskins,  130  Iowa,  339, 
8  L.R.A.(N.S.)  376,  106  N.  W. 
764,  also  see,  Atlantic  Safe  Deposit 
&  Trust  Co.  V.  Atlantic  City  Laun- 
dry Co.,  64  N.  J.  Eq.  140,  53  Atl. 
212;  Feder  v.  Van  Winkle,  53  N. 
J.  Eq.  370,  51  Am.  St.  Rep.  628,  33 
Atl.  399;  Temple  Co.  v.  Penn.  Mut. 
L.  Ins.  Co.,  69  N.  J.  L.  36,  54  Atl. 
295.  Massive  machinery  for  manu- 
facturing brick  fastened  to  brick 
foundations  and  sunk  in  the  ground 
become  a  part  of  the  freehold  and 
pass  with  a  deed  thereof;  Fisk  v. 
People's  Nat.  Bank.  59  Pac.  63.  14 
Colo.  App.  21. 

8  Tabor  v.  Robinson,  36  Barb.  483. 
Brown,  J.,  delivering  the  opinion  of 
the  court,  said :  "The  question  is 
between    vendor    and    vendee,    and 


is  to  be  determined  by  the  rules 
which  prevail  and  apply  between 
persons  in  that  relation.  The 
shelves  and  drawers  the  witness 
said  were  put  in  after  the  usual  way. 
There  were  stancils — which  I  take 
to  have  been  standards  or  sup- 
ports— fastened  to  the  wall,  and 
the  shelves  shoved  into  them.  They 
were  put  and  used  for  a  dry  goods 
and  grocery  store.  There  were  four 
or  five  counter-tables,  one  of  them 
13  feet  9  inches  long  by  2  or  3  feet 
wide,  tacked  to  the  floor  to  make 
them  stay  there.  They  were  put 
up,  the  witnesses  said,  to  stay  there. 
Another  witness  said  the  tables 
were  nailed  by  putting  a  nail 
through  the  leg.  Another  said  they 
were  nailed,  and  had  a  cleat  nailed 
down  by  the  side  of  the  legs,  and 
they  had  been  moved  about  the 
store  a  number  of  times.  The 
qualities  of  a  fixture  are  that  it 
must  be  essential  to  the  business 
of  the  erection,  and  attached  to  it 
in  some  way,  or  mechanically  fitted 
so  as,  in  ordinarj'  understanding, 
to  make  a  part  of  the  building  it- 
self. It  must  be  permanently  at- 
tached, or  the  component  part  of 
some  erection,  struct+ire  or  machine 
which  is  attached  to  the  freehold, 
and  without  which  the  erection, 
structure,  or  machine  would  be  im- 
perfect and  incomplete.  Physical 
annexation     is     not     indispensable. 


CHAP.    XXXIII.]       FIXTURES   PASSING   BY  DEED. 


2243 


hotel  purposes,  with  the  appurtenances,  without  reservation, 
a  hotel  sigTi  attached  to  a  post  placed  firmly  in  the  ground, 
seven  or  eight  feet  from  the  building,  spiked  to  a  sidewalk 
in  front  of  the  hotel,  being  placed  in  that  position  with  intent 
that  it  should  remain  a  permanent  sign  for  the  hotel,  and  be- 
ing so  attached  as  to  be  immovable  without  force,  is  also 
transferred  by  the  deed.^     Land,   at  common-law,   includes 


Ponderous  articles  may  be  annexed 
by  force  of  their  own  weight,  and 
many  others  might  be  enumerated 
which     are     really     portable     and 
movable,     and    are    moved     about 
from  time  to  time,  and  which  are 
nevertheless  a  part  of  the  freehold. 
For   example,    rail    fences    upon   a 
farm,  the  keys  and  padlocks  upon 
buildings,   parts   of   the  machinery 
of    mills    of    various    kinds,    etc. 
These  are  carried  about  from  place 
to  place,  but  they  are  essential  and 
indispensable     parts     of     the     ma- 
chinery   or    structure,    or    of    the 
farm,  and  necessary  to  its  use  and 
enjoyment.      As    between    vendor 
and    purchaser,    they    are    fixtures. 
The  shelves,  drawers,  and  counter- 
tables,    in   the    present    case,    were 
put  up  by  the  owner  to  fit  the  build- 
ing   for    the    use    of    a    retail    dry 
goods  and  grocery  store.     Without 
them  the  building  was  not  adapted 
(5  to  the  business.    They  were  made  to 
fit  the  building  which  the  defend- 
ant contracted   to  sell,   and   not  fit 
for  any  other  building.     And  when 
he  removed  them,  the  shelves,  cer- 
tainly, and  the  drawers  and  counter- 
tables,    probably   were    little   better 
than  so  much  'umber.     They  were 
for    these    reasons   fixtures,   and    a 
part  of  the  freehold;  and  the  de- 
fendant did  wrong  to  remove  them. 
The  purchaser  had  every   right  to 


think  he  would  receive  them  with 
his  deed."     See,  also,  Johnstone  v. 
Philadelphia  etc.  Co.,  129  Ala.  515, 
30   So.    15,   87   Am.    St.    Rep.   75; 
Brigham  v.  Overstreet,  128  Ga.  447, 
10  L.R.A.(N.S.)  452,  57  S.  E.  484. 
SRedlon  v.   Barker,  4  Kan.  445, 
96  Am.  Dec.  180.     Safford,  J.,  de- 
livering the   opinion   of   the   court, 
said:       "Let     us     suppose     for     a 
moment    that    the    hotel    sign — the 
property    in    dispute — had   been    in 
some  way  actually  attached  to  the 
building  at  the  time  of  the  sale  by 
Barker    to    Redlon,    Rowley,    and 
Jones,   could   it  be  maintained   for 
a  moment  that   it  did  not  pass  to 
the  grantees  under  the  terms  of  the 
sale  as  set  forth?     In  that  case  it 
would  have  been  a  part  of  the  build- 
ing itself,  requiring  force  to  remove 
it,    and    appurtenant    thereto.      Be- 
sides, taking  into  consideration  the 
purposes  for  which  the  building  was 
used,  it  was  something  very  neces- 
sary to  a  successful  carrying  on  of 
the    business.      The    building    was 
'Barker's   Hotel,'   and  these   words 
were  on  the  sign  at  the  time  of  the 
sale.    The  grantees  purchased  it  for 
a  hotel,  with  all  the  appurtenances 
thereunto  belonging,  and  intending 
to   keep   it   as   such.     They  did   so 
keep     it,     and     for    three    months, 
under  the  name  of  Barker's  Hotel. 
Under  such  a  state  of   facts,  and 


2244 


THE  LAW  OF  DEEDS.  [CHAP.    XXXHL 


all  building's  of  a  permanent  nature  standing  on  it,  and  where 
there  is  no  notice  that  some  other  person  is  the  owner,  they 
pass,  as  between  grantor  and  grantee,  with  the  land.^  Where 
there  is  no  agreement  to  the  contrary  a  conveyance  of  the 
freehold  passes  all  fixtures  whether  actually  or  constructively 
annexed  to  the  freehold.^  Where  an  intention  does  not  ap- 
pear that  they  shall  not  pass,  a  deed  of  the  realty  will  con- 
vey store  fixtures  attached  to  a  building  by  the  owner  at 
the  time  of  its  erection,  by  means  of  fastenings  put  into  the 
wall,  the  object  of  placing  in  the  building  being  more  com- 
pletely for  the  purpose  for  which  it  was  erected.^    Whether  a 


under  the  supposition  above  stated, 
can  it  be  doubted  that  the  sign 
would  have  passed  with  the  prem- 
ises to  the  grantees  ?  We  think  not. 
But  the  sign,  instead  of  being  at- 
tached to  the  building  itself,  was 
fastened  to  a  signpost  in  front  of 
and  within  seven  or  eight  feet  of  it, 
a  sidewalk  being  between  the  post 
and  the  hotel.  The  post  was  sunk 
firmly  into  the  ground,  and  the  sign 
attached  to  it  so  as  to  require  force 
to  remove  it.  Does  the  fact  of  its 
being  so  placed  render  it  less  a 
part  of,  or  less  appurtenant  to,  the 
hotel  premises  than  it  would  have 
been  if  actually  attached  to  the 
building  as  above  supposed?  It 
performed  the  same  office,  and  was 
just  as  necessary  to  the  business 
carried  on,  and  to  be  carried  on,  in 
the  building  in  the  one  case  as  in 
the  other.  And  we  think  that  if 
the  terms  of  sale  would  have  passed 
the  property  in  the  sign  to  the 
grantees  in  the  first  instance,  it 
would  also  pass  it  in  the  last.  But 
it  is  claimed  that  when  Barker  de- 
manded the  sign  from  plaintiffs  in 


error  it  was  detached  from  the 
signpost  and  was  without  doubt  a 
chattel,  and  no  part  of  the  real 
estate.  This  may  all  be  true;  but 
how  can  the  rights  of  the  parties 
be  thereby  affected?  It  having 
passed  to  the  purchasers  of  the 
hotel  once,  they  most  certainly  had 
the  right  to  remove  it,  or  let  it 
alone  as  they  pleased.  Supposing 
Redlon.  Rowley,  and  Jones  had 
seen  proper  to  remove  some  of  the 
doors  or  windows,  or  other  parts  of 
the  building,  to  a  carpenter's  or 
paint  shop  for  the  purpose  of  being 
repaired  or  painted,  would  that  act 
of  theirs  have  given  Barker  any 
right  to  claim  them  as  his  own? 
None  will  assert  this  for  a  moment. 
And  yet  their  acts  in  relation  to  the 
sign  were  of  the  same  character 
precisely." 

*  Union  Cent.  Life  Ins.  Co.  v. 
Tillery,  152  Mo.  421,  54  S.  W.  220, 
75  Am.  St.  Rep.  480. 

2  Wolff  v.  Sampson,  123  Ga.  400, 
51  S.  E.  335. 

'Johnston  v.  Philadelphia  Mort- 
gage &  Trust  Co.,  129  Ala.  515.  30 


CHAP.    XXXIII.]       FIXTURES   PASSING  BY  DEED. 


224: 


I)erson  intended  that  an  article  should  be  attached  to  the  free- 
hold may  be  inferred  from  the  nature  of  the  article  itself,  as 
well  as  the  relation  and  situation  of  the  parties,  the  manner 
and  the  purpose  of  the  annexation.*  There  should  be  a  unity 
of  title  in  the  real  property  and  the  article  claimed  to  be 
a  fixture.^  Where  no  agreement  exists  with  the  owner,  a 
person  who  erects  such  structures  as  are  ordinarily  attached 
to  land  is  presumed  to  intend  that  they  shall  be  permanent 
annexations.*  It  is  proper  to  take  into  consideration  as  per- 
tinent, but,  not  controlling  circumstances,  the  injury  that  the 


So.  IS,  87  Am.  St.  Rep.  75.  See, 
also,  for  various  cases  involving  the 
question  of  fixtures  between  grantor 
and  grantee :  Alper  v.  Tormey,  1 
Cal.  App.  634,  82  Pac.  1063;  State 
Security  Bank  v.  Hoskins,  130 
Iowa,  339,  8  L.R.A.(N.S.)  376,  106 
N.  W.  764;  Wolf  v.  Sampson,  123 
Ga.  400,  51  S.  E.  335;  Pomeroy  v. 
Bell,  118  Cal.  635,  50  Pac.  683; 
Fisk  V.  Peoples'  Nat.  Bank,  14  Colo. 
App.  21,  59  Pac.  63;  Sherrick  v. 
Cotter,  28  Wash.  25,  68  Pac.  172, 
92  Am.  St.  Rep.  821 ;  Robertson  v. 
Parrish,  39  S.  W.  646;  Alberson 
V.  Elk  Creek  Gold  Min.  Co.,  39 
Or.  552,  65  Pac.  978;  Union  Inv. 
Co.  v.  McKinney,  35  Ind.  App.  594, 
74  N.  E.  1001 ;  Fischer  v.  Johnson, 
106  Iowa,  181,  76  N.  W.  658;  State 
Security  Bank  v.  Hoskins,  130 
Iowa,  339,  8  L.R.A.(N.S.)  376, 
106  N.  W.  764;  Bullard  v.  Hop- 
kins, 128  Iowa,  703,  105  N.  W.  197 ; 
Wentworth  v.  S.  A.  Woods  Mach. 
Co.,  163  Mass.  28,  39  N.  E.  414; 
Palmateer  v.  Robinson,  60  N.  J.  L. 
433,  38  Atl.  957;  Moore  v.  Moran, 
64  Neb.  84,  89  N.  W.  629;  Dodge 
City  Water  &  Light  Co.  v.  Alfalfa 
Irrigation   &   Land    Co.,   64    Kan. 


247,  67  Pac.  462;  John  Spry  Lum- 
ber Co.  V.  The  C.  H.  Green,  76 
Mich.  320,  43  N.  W.  576;  Watson 
V.  Alberts,  120  Mich.  508,  79  N.  W. 
1048;  aimer  v.  Wallace,  28  Mo. 
556,  75  Am.  Dec.  135;  Causey  v. 
Empire  Plaid  Mills,  119  N.  C.  180, 
25  S.  E.  863 ;  Curry  v.  Schmidt,  54 
Mo.  515;  Lansing  Iron  &  Engine 
Works  v.  Wilbur,  111  Mich.  413,  69 
N.  W.  667;  Harris  v.  Hackley,  127 
Mich.  46,  86  N.  W.  389;  McCrilles 
v.  Cole,  25  R.  I.  156,  55  Atl.  196, 
105  Am.  St.  Rep.  875;  Ice  Light  & 
Water  Co.  v.  Lone  Star  Engine  & 
Boiler  Works,  15  Tex.  Civ.  App. 
694,  41  S.  W.  835;  Mundine  v. 
Pauls,  28  Tex.  Civ.  App.  4€,  66  S. 
W.  254;  Straw  v.  Straw,  70  Vt. 
240,  39  Atl.  1095. 

*  Fifield  V.  Farmers'  Nat.  Bank, 
148  111.  163,  39  Am.   St.  Rep.   166. 

5  Schellenberg  v.  Detroit  Heating 
etc.  Co.,  130  Mich.  439,  57  L.R.A. 
632,  91  N.  W.  47,  97  Am.  Dec. 
489.  See,  also,  on  the  question  of 
intention :  Filley  v.  Christopher,  39 
Wash.  22,  80  Pac.  834,  109  Am. 
St.  Rep.  853. 

6  Wood  V.  Holly  Mfg.  Co.,  100 
Ala.  326,  46  Am.  St.  Rep.  56. 


2246  THE  LAW  OF  DEEDS.  [CHAP.    XXXIII. 

removal  of  the  article  may  cause  the  freehold  and  the  value 
which  the  article  may  possess  after  it  is  removed^ 

§  1198.  Instances.  A  grantor  conveyed  a  house  and 
land  by  a  deed  of  warranty,  and,  at  the  time  the  conveyance 
was  made,  the  only  supply  of  water  to  the  premises  was 
through  a  pipe  laid  across  the  land  of  a  third  person  to  a 
highway.  Here  it  joined  a  branch  leading  from  the  main 
pipe  of  an  aqueduct  company.  The  grantor  at  the  time  of 
his  conveyance  had  the  right,  under  a  contract  with  the  aque- 
duct company,  and,  on  the  payment  of  an  annual  compensa- 
tion, to  draw  water  from  the  main  pipe  through  this  branch 
for  his  own  use  and  to  dispose  of  it  to  others.  Originally, 
the  pipe  from  the  house  to  the  branch  was  laid,  for  the 
purpose  of  conveying  water  to  the  house,  by  a  tenant  of  the 
grantor,  under  an  oral  license  from  the  third  person,  over 
whose  land  it  passed,  and  was  bought  of  the  tenant  by  the 
grantor  at  the  expiration  of  his  tenancy.  After  the  execu- 
tion of  his  deed,  the  grantor  cut  off  this  pipe  at  the  boundary 
of  the  land  which  he  had  conveyed,  and  dug  it  up  from  there 
to  its  junction  with  the  branch  in  the  highway,  and  carried 
it  off.  The  grantee  brought  an  action  against  the  grantor, 
and  it  was  held  that  the  pipe  which  had  been  dug  up  and 
carried  off  was  a  fixture  appurtenant  to  the  house,  and  passed 
to  the  grantee  by  the  grantor's  deed,  but  that  the  deed  con- 
veyed no  right  of  drawing  water  from  that  pipe  from  the 
branch  on  the  highway.*      Gas  fittings,   for  the  reason  that 

'  Filley  v.  Christopher,  39  Wash.  trustees  for  the  purpose  of  main- 

22,  80  Pac.  834,   109  Am.  St.  Rep.  taining   and   establishing   a   school. 

853.  The  trustees   made  an  addition   to 

8  Philbrick  v.  Ewing.  97  Mass.  the  building  and  caused  the  whole 
133.  In  section  453,  the  effect  of  a  to  be  insured  for  a  certain  sum, 
trust  deed  becoming  void  on  the  and  the  building  having  been  de- 
happening  of  a  contingency  was  stroyed  by  fire,  the  amount  of  the 
considered.  In  the  case  cited  in  loss  was  paid  to  the  trustees.  The 
that  section,  a  tract  of  land  with  trust  deed  contained  a  provision 
a  building  thereon  was  conveyed  to  that  if  the  design  to  establish  and 


CHAP.    XXXIII.]      FIXTURES  PASSING  BY  DEED. 


224: 


they  are  permanently   attached   to  the   freehold   and,   there- 
fore,   constitute   a   part   of    it,    will,    as   distinguished    from 


maintain  a  school  should  prove  un- 
successful, the  trustees  should  pass 
a  resolution  to  that  eflFect,  and 
thereupon  the  title  should  revert  to 
the  grantor.  After  the  fire,  the 
trustees  passed  a  resolution  of  this 
nature,  and  also  executed  a  recon- 
veyance of  the  premises  to  the 
grantor.  As  this  case  involves,  to 
some  extent,  the  question  of  fix- 
tures, the  court  deciding  that  the 
grantor  was  entitled  to  the  proceeds 
realized  from  the  policy  of  insur- 
ance, we  deem  it  not  improper,  in 
this  place,  to  call  attention  to  this 
case  on  this  point.  The  case  re- 
ferred to  is  Hawes  v.  Lathrop,  38 
Cal.  493,  in  which  Mr.  Justice 
Rhodes,  in  delivering  the  opinion 
of  the  court,  said  (p.  497)  :  "The 
addition  to  the  house,  which  was 
erected  by  the  trustees,  was  not 
personal  property,  but  it  became, 
like  the  house  to  which  it  was  at- 
tached, a  part  of  the  realty.  The 
strictness  of  the  earlier  rule  re- 
quiring the  structure  to  be  attached 
to  the  soil,  in  order  to  become  a 
fixture,  is  being  relaxed  in  this 
country,  in  consequence  of  the  man- 
ner in  which  very  many  buildings 
that  are  intended  to  be  permanent, 
are  erected.  But  the  addition  was, 
in  this  case,  attached  to  the  main 
Duilding  in  such  a  manner  that  it 
constituted  a  part  of  the  main 
building.  The  trustees,  therefore, 
held  the  'addition'  by  the  same 
tenure  that  they  held  the  lot  and 
main  building;  and  had  the  prop- 
erty reverted  to  the  plaintiff  before 
the  fire,  the  'addition'  would  have 


passed  to  him  with  the  lot,  without 
any  special  words  of  conveyance. 
The  insurance  of  the  building  cov- 
ered the  'addition'  as  well  as  the 
main  building,  and  if  the  plaintiff 
is  entitled  to  any  part  of  the  fund 
paid  by  the  insurer  on  account  of 
the  loss,  he  is  entitled  to  the  whole. 
The  trustees  held  the  fund  in  their 
fiduciary,  and  not  in  their  private, 
capacity.  The  persons  to  whom 
they  paid  the  larger  part  of  the 
money  had  made  donations  to  the 
trustees  for  the  benefit  of  tbe 
school,  but  without  any  conditions, 
and  they  had  neither  a  legal  nor 
equitable  claim  to  the  fund.  Nor 
did  any  claim  exist  in  favor  of  the 
persons  to  whom  portions  of  the 
fund  were  paid  on  account  of-  a 
loss  of  furniture  sustained  by  one, 
or  a  personal  injury  sustained  by 
the  other.  Upon  the  passage  of  the 
resolution  referred  to,  the  title  to 
the  real  estate  reverted  to  the  plain- 
tiff, and  the  trustees  had  no  further 
duties  to  perform  in  maintaining 
the  school,  and,  clearly,  it  would 
be  unnecessary,  and  not  within  the 
scope  of  their  duties,  to  expend  any 
further  sum  of  money  for  that  pur- 
pose. The  duties  of  the  defend- 
ants as  trustees  having  terminated 
upon  the  adoption  of  the  resolution, 
it  became  their  duty  to  pay  over 
to  the  person  entitled  to  it  the  in- 
surance money  in  their  hands.  It 
is  not  and  could  not  be  claimed  that 
the  defendants  are  entitled  to  it; 
it  could  not  be  claimed  on  behaH 
of  the  school,  for  that  no  longer 
existed;  and  we  are  unable  to  see 


2248 


THE  LAW  OF  DEEDS, 


[chap.    XXXIII. 


gas-fixtures,  pass  by  a  deed  of  the  premises.®  So  will  shafting 
when  the  means  by  which  it  is  suspended  are  fixed  and  per- 
manent.^ So  will  waterwheels  and  gearing.^  A  deed  of  the 
realty  will  convey  hydraulic  presses  and  steam  and  water 
pipes,  if  they  are  fastened  to  the  freehold.^    A  threshing  ma- 


how  anyone  except  the  plaintiff  can 
make  out  a  plausible  claim  to  it. 
Had  the  building  with  the  addition 
remained  upon  the  lot  at  the  time 
of  the  adoption  of  the  resolution, 
it  would  have  vested  in  the  plain- 
tiff; and  had  the  trustees  expended 
the  insurance  money  in  rebuilding, 
before  the  adoption  of  the  resolu- 
tion, the  new  building  would  have 
reverted  to  the  plaintiff  with  the  lot, 
and  it  would  seem  just  and  equi- 
table that  the  plaintiff  should  be 
entitled  to  the  insurance  money  re- 
maining in  the  hands  of  the  trustees 
when  the  design  for  the  school 
failed.  It  represented,  in  their 
hands,  the  insured  building.  Had 
the  deed  made  it  the  duty  of  the 
trustees  to  keep  the  building  in- 
sured, and  in  case  of  a  loss,  to 
appropriate  the  insurance  money 
to  the  erection  of  another  building, 
there  would  be  no  difficulty  in  hold- 
ing that,  as  between  the  parties  to 
the  deed,  the  money  would  in  equi- 
ty be  treated  as  land.  The  trustees 
did  not  exceed  their  duty  in  effect- 
ing the  insurance,  and  it  would 
have  been  their  duty,  had  not  the 
project  for  the  maintenance  of  the 
school  failed,  to  have  rebuilt;  but 
they,  not  having  rebuilt,  and  having 
determined  that  it  was  impracticable 
to  maintain  the  school,  the  money 
stands  in  the  stead  of  the  building, 
and  in  equity,  vested  in  the  plaintiff, 
upon  the  termination  of  the  trust, 


in  the  same  manner  as  would  the 
building  had  they  expended  the 
money  in  the  erection  of  a  build- 
ing." 

8  Ex  parte  Acton,  4  L.  T.,  N.  S., 
261;  Ackroyd  v.  Mitchell,  3  L.  T; 
N.  S.,  236;  Ex  parte  Wilson,  2 
Mont.  &  A.  61. 

1  Harkness  v.  Sears,  26  Ala.  493, 
62  Am.  Dec.  742;  Corliss  v.  Mc- 
Lagin,  29  Me.  115;  Harris  v.  Hay- 
nes,  34  Vt.  220;  Longbottom  v. 
Berry,  Law  R.  5  Q.  B.  123;  s.  c. 
39  Law  J.  (N.  S.)  Q.  B.  37;  Hill 
V.  Wentworth,  28  Vt.  428;  Bowen 
V.  Wood,  35  Ind.  268;  Ex  parte 
Montgomery,  4  Ir.  Ch.  520;  Quinby 
V,  Manhattan  etc.  Co.,  24  N.  J.  Eq. 
260;  Mather  v.  Eraser,  2  Kay  & 
J.  536;  s.  c.  2  Jur.,  N.  S.,  900; 
Allison  V.  McCune,  15  Ohio,  726, 
45  Am.  Dec.  605.  In  Wade  v. 
Johnston,  25  Ga.  331,  the  court  say 
that  when  an  article  can  be  re- 
moved without  material  injury  to 
the  freehold  or  the  article  itself, 
it  is  a  chattel,  and  not  a  freehold. 
And  see  Farrar  v.  Chauffetete,  5 
Denio,  527. 

2  Davenport  v.  Shants,  43  Vt.  546 
Corliss  V.  McLagin,  29  Me.  115 
McCluney  v.  Lemon,  Hayes,  154 
Bowen  v.  Wood,  35  Ind.  268. 

8  Crane  v.  Brigham,  11  N.  J.  Eq. 
29;  Despatch  Line  v.  Bellamy  Mfg. 
Co.,  12  N.  H.  205,  37  Am.  Dec.  203. 
See  Longbottom  v.  Berry,  Law  R. 
5  Q.  B.  123;  s.  c.  39  L.  J.  (N.  S.) 


CHAP.   XXXIII.]      FIXTURES  PASSING  BY  DEED. 


2249 


chine  attached  by  bolts  and  screws  to  posts  placed  m  the  ground 
will  pass  as  a  fixture.*  A  building  becomes  a  part  of  the 
realty  if  erected  upon  the  lands  of  another,  with  no  agree- 
ment that  the  same  is  to  be  held  and  regarded  as  personal 
property,  and  it  will  pass  with  a  conveyance  of  the  land.* 


Q.  B.  Zl,  44;  Baker  v.  Davis,  19 
N.  H.  325 ;  Bond  v.  Coke,  71  N.  C. 
97.  A  deed  of  the  land  will  convey 
steam  engines  :  Gary  v.  Burquieres, 
12  La.  Ann.  227.  But  see  Randolph 
v.  Gwynne,  7  N.  J.  Eq.  88,  51  Am. 
Dec.  265.  The  poles,  wires,  and 
lamps  of  an  electric  light  company 
pass  as  fixtures:  Keating  Imple- 
ment etc.  Co.  v.  Marshall  Electric 
Light  etc.  Co.,  74  Tex.  605 ;  Regina 
V.  North  Staffordshire  Ry.  Co.,  3 
El.  &  E.  392.  And  see,  further,  as 
to  electric  lighting  apparatus,  Vail 
V.  Weaver,  132  Pa.  St.  363, 19  Am. 
St.  Rep.  598;  New  York  Security 
Co.  V.  Saratoga  Gas.  Co.,  34  N.  Y. 
Sup.  890;  Havens  v.  West  Side 
Electric  Light  Co.,  44  N.  Y.  St.  Rep. 
589,  17  N.  Y.  Sup.  580.  Embank- 
ment, ties  and  rails  pass  by  deed  of 
the  real  property.  Van  Husan  v. 
Omaha  Bridge  &  Terminal  Ry.  Co., 
92  N.  W.  47,  118  Iowa,  366.  They 
are  not  to  be  considered  trade  fix- 
tures but  as  part  and  parcel  of  the 
land  itself,  Omaha  Bridge  &  Ter- 
minal Ry.  Co.  V.  Whitney,  99  N.  W. 
525,  68  Neb.  389. 

4WiUshear  v.  Cottrell.  1  El.  & 
B.  674;  s.  c.  22  Law  J.  177.  Iron 
pipes  used  for  heating  purposes  will 
pass  as  fixtures :  Quinby  v.  Man- 
hattan etc.  Co..  24  N.  J.  Eq.  260; 
Ex  parte  Wilson,  2  Mont.  &  A. 
61.  A  windlass  which  was  firmlj 
fastened  in  a  slaughterhouse  passes 
by  a  conveyance :    Capen  v.  Peck- 


ham,  35  Conn.  88.  The  machinery 
of  a  sash  factory  will  pass  as  a 
fixture :  Green  v.  Phillips,  26  Gratt. 
752,  21  Am.  Rep.  323.  So  will 
locks  and  doors:  Pettengill  v. 
Evans,  5  N.  H.  54.  An  awning  with 
its  frames  and  a  marble  meat  slab 
attached  to  a  counter  will  pass  by 
a  conveyance :  Re  Hitchings,  4  Nat. 
Bank.  Reg.  (2d  ed.)  384.  The  ma- 
chinery of  a  paper  mill  will  pass 
also :  Bowen  v.  Wood,  35  Ind.  268. 
So  will  the  malt  mill  and  other  ma- 
chinery of  an  innkeeper  employed 
in  his  business  :  Warmsley  v.  Milne, 
7  Com.  B.,  N.  S.,  115.  Sawmill 
machinery  will  also  pass:  Daven- 
port v.  Shants,  43  Vt.  546.  A  cot- 
ton-gin which  is  fastened  to  a  house 
by  nails  and  braces  will  pass :  De- 
graffenreid  v.  Scruggs,  4  Humph. 
451,  40  Am.  Dec.  658.  A  bell  placed 
in  a  tower  of  a  factory  will  pass: 
Alvord  Carriage  Mfg.  Co.  v.  Glea- 
son,  36  Conn.  86.  But  a  bell  placed 
upon  two  posts  for  temporary  use, 
and  not  fastened  to  them,  will  not 
pass  as  a  fixture:  Cole  v.  Roach, 
Zl  Tex.  413.  See,  also,  Weston  v. 
Weston,  102  Mass.  514.  Dry  kiln, 
planing  machine,  'matching  ma- 
chine pass  as  fixtures :  Studley  v. 
Ann  Arbor  Savings  Bank,  112  Mich. 
181,  70  N.  W.  426. 

5  Richtmyer  v.  Morss,  3  Keyes, 
349;  s.  c.  4  Abb.  N.  Y.  App.  55. 
See,  also.  Pea  v.  Pea,  35  Ind.  387 ; 
Cole  v.  Stewart,  11  Cush.  181;  But- 


2250 


THE  LAW  OF  DEEDS.  [CHAP.    XXXIII, 


§  1199.  Notice  of  fixtures. — Where  the  grantee  has 
notice  of  the  right  of  another  to  remove  annexations  to  the 
land,  they  do  not  pass  by  a  deed.*  If  a  purchaser  at  an  ex- 
ecution sale  has  notice  that  another  person  has  the  right 
to  remove  a  house  erected  on  the  land,  he  is  not  entitled  to 
damages  for  the  removal.''  Some  countenance  has  been  gWen 
to  the  proposition  that  a  purchaser  would  be  bound  by  an 
agreement  for  the  removal  of  fixtures,  even  if  he  had  no 
notice  of  it.'  But  on  this  point  Mr.  Chief  Justice  Perley,  of 
New  Hampshire,  in  delivering  the  opinion  of  the  court,  said: 
"We  are  not  yet  prepared  to  acquiesce  in  such  a  doctrine. 
Primarily,  and  in  the  absence  of  notice  to  the  contrary,  the 
purchaser  would  seem  to  have  a  right  to  suppose  that  he  was 
buying  with  all  the  incidents  and  appurtenances  which  the 
law,  as  a  general  rule,  annexed  to  his  purchase ;  and  we  should 
hesitate  before  we  held  that  he  could  be  affected  by  a  private 
agreement  not  brought  to  his  knowledge,  which  changed  the 


ler  V.  Page,  7  Met.  40,  39  Am.  Dec. 
757.  As  to  grist  mills,  see  Potter 
V.  Cromwell,  40  N.  Y.  287,  100  Am. 
Dec.  485 ;  Gardner  v.  Finley,  19 
Barb.  387;  Place  v.  Fagg,  4  Man. 
.t  R.  277;  s.  c.  7  Law  J.  K.  B.  195. 
As  to  cider  mills  and  press,  see 
Wadleigh  V.  Janvrin,  41  N.  H.  503, 
77  Am.  Dec.  780;  Moore  v.  Moran, 
64  Neb.  84,  89  N.  W.  629;  Fischer 
V.  Johnson,  76  N.  W.  658,  106  Iowa, 
181,  holding  that  where  comcribs 
are  erected  by  one  having  no  es- 
tate in  the  land,  an  agreement  that 
the  structures  shall  remain  the 
property  of  the  person  making  them 
will  be  implied  in  the  absence  of 
any  other  facts  and  circumstances 
tending  to  show  a  different  inten-- 
tion. 

6  Davis   V.   Buffum.   51    Me.    160; 
Coleman-  v.  Lewis,  27  Pa.  St.  291 ; 


Wilgus  V.  Gettings,  21  Iowa,  177; 
Haven  v.  Emery,  33  N.  H.  66;  Sow- 
den  V.  Craig,  26  Iowa,  156,  96  .^m. 
Dec.  125 ;  Pierce  v.  Emery,  32  N.  H. 
484;  Morris  v.  French,  106  Mass. 
326;  Mitchell  v.  Frecdley,  10  Pa. 
St.  198;  Hensley  v.  Brodie,  16  Ark. 
511;  Hunt  v.  Bay  State  Iron  Co., 
97  Mass.  279;  Walker  v.  Schindel, 
58  Md.  360. 

'  Coleman  v.  Lewis,  27  Pa.  St. 
291. 

*  See  Mott  v.  Palmer,  1  Comst. 
564;  Ford  v.  Cobb,  20  N.  Y.  3+4; 
Russell  v.  Richards,  10  Me.  429,  26 
Am.  Dec.  254,  11  Me.  371,  26  Am. 
Dec.  532;  Goddard  v.  Gould,  14 
Barb.  662;  Tapley  v.  Smith,  18  Me. 
12;  Hilborne  v.  Brown,  12  Me.  162; 
Hensley  v.  Broder,  16  Ark.  511; 
Sheldon  v.  Edwards,  35  N.  H.  .''-79; 
Crippen  v.   Morrison,   13  Mich.  34. 


CHAP.    XXXIII.]      FIXTURES  PASSING  BY  DEED. 


2251 


natural  and  legal  character  of  the  property.  But  if  the  pur- 
chaser buy  with  notice  of  the  agreement,  and  of  the  party's 
rights  under  it,  he  will  be  bound  by  it."  '  And  in  the  same 
strain  is  the  language  of  Mr.  Justice  Foster  of  Massachusetts : 
"Upon  the  question  whether  the  character  of  property  can  be 
changed  by  agreement  from  realty  to  personalty  as  against 
a  bona  fide  jurchaser  without  notice,  there  is  not  entire  har- 
mony of  the  authorities;  but  we  regard  the  better  opinion  as 
being  that  such  a  purchaser  must  have  notice  of  the  agree- 
ment before  he  acquires  title,  or  he  will  be  entitled  to  claim 
and  hold  everything  which  appears  to  be,  and  by  its  ordinary 
nature  is,  a  part  of  the  realty.  To  hold  otherwise  would 
contravene  the  policy  of  the  laws  requiring  conveyances  of 
interests  in  real  estate  to  be  recorded,  seriously  endanger  the 
rights  of  purchasers,  afford  opportunities  for  frauds,  and 
introduce  uncertainty  and  confusion  into  land  titles."  *     V> 


9  In  Haven  v.  Emery,  33  N.  H. 
66,  69. 

*  In  delivering  the  opinion  of  the 
court  in  Hunt  v.  Bay  State  Iron 
Co.,  97  Mass.  279,  283.  See,  also, 
Powers  V.  Dennison,  30  Vt.  752; 
Thropp's  Appeal,  70  Pa.  St.  395; 
Fortman  v.  Goepper,  14  Ohio  St. 
56$;  Brennan  v.  Whitaker,  15  Ohio 
St.  44(5;  Fryatt  v.  Sullivan,  5  Hill. 
116;  Davenport  v.  Shants,  43  Vt. 
546;  Prince  v.  Case,  10  Conn.  375, 
27  Am.  Dec.  675;  Bringholff  v. 
Munzenmaier,  20  Iowa,  513;  Trull 
v.  Fuller,  28  Me.  545;  Landon  v. 
Piatt,  34  Conn.  517;  Bratton  v. 
Clawson,  2  Strob.  478;  Dostal  v. 
McCadden,  35  Iowa,  318;  Pierce  v. 
George,  108  Mass.  78,  11  Am.  Rep. 
310;  Dame  v.  Dame,  38  N.  H.  429, 
75  Am.  Dec.  195;  Oliver  v.  Ver- 
non, 6  Mod.  179;  Crippen  v.  Mor- 
rison, 13  Mich.  23;  Yater  v.  Mul- 


len, 23  Ind.  562,  24  Ind.  277;  King 
V.  Wilcomb,  7  Barb.  263.  See,  also, 
generally,  on  the  question  of  notice 
of  fixtures,  McCracken  v.  Hill,  7 
Ind.  30;  Wilshear  v.  Cottrell,  1  El. 
&  B.  672;  Raymond  v.  White,  7 
Cowen,  319;  Ex  parte  Scarth,  1 
Mont.  D.  &  D.  240;  Tifft  v.  Hor- 
ton,  53  N.  Y.  377,  13  Am.  Rep.  537; 
Frankland  v.  Moulton,  5  Wis.  1 ; 
Voorhees  v.  McGinnis,  48  N.  Y. 
278;  Gooding  v.  Riley,  SO  N.  Y. 
400;  Eastman  v.  Foster,  8  Met.  19; 
Farmers'  Loan  &  Trust  Co.  v.  St. 
Jo.  Ry.  Co.,  3  Dill.  412;  Potts  v. 
New  Jersey  Arms  Co.,  17  N.  J. 
Eq.  395;  Ex  parte  Daglish,  Law 
R.  8  Ch.  1072;  Hawtry  v.  Butlin, 
Law  R.  8  Q.  B.  290 ;  Meux  v.  Allen, 
fiths.  Law  R.  1  Com.  P.  349;  Mather 
23  Week.  R.  526;  Branton  v.  Grif- 
v.  Eraser,  2  Kay  &  J.  536;  Begbie 
V.  Fenwick,  Law  R.  8  Ch.  1075,  n; 


2252  THE  LAW  OF  DEEDS.  [CHAP.    XXXIII. 

where  a  tenant  is  in  possession,  his  possession  is  notice  of 
his  rights.^ 

§  1200.  Conveyance  of  structure  passing  title  to  land. — 
Courts  have  frequently  decided  that  a  conveyance  of  a  build- 
ing or  barn  used  as  a  term  of  description,  will  convey  also 
the  land  upon  which  the  building  or  structure  may  be  erected.' 
Referring  to  the  cases  in  which  this  principle  has  been  an- 
nounced, and  the  reason  upon  which  it  is  founded,  Bigelow, 
J.,  observes :  "These  authorities  rest  upon  the  sound  and  rea- 
sonable rule  that  whenever  land  is  occupied  and  improved  by 
buildings  or  other  structures,  designed  for  a  particular  pur- 
pose, which  comprehends  its  pratical  use  and  enjoyment,  it  is 
aptly  designated  and  conveyed  by  a  term  which  described  the 
purpose  to  which  it  is  thus  appropriated."  * 

§  1201.  Land  necessary  to  use  of  structure. — But  only 
so  much  of  the  land  as  is  necessary  to  the  use  of  the  structure 
will  pass  by  implication  by  a  conveyance  of  the  structure  itself, 
and  this  rule  applies  also  to  an  exception  contained  in  a  deed. 
Thus,  a  person  granted  by  deed  to  another  a  tract  of  land 
bounded  on  all  sides  by  land  of  other  persons  named  in  the 
deed,   but   excepted    from   the   operation   of   the   deed   "the 

s.  c.  24  L.  T.,  N.  S.,  58;  Boyd  v.  ed.)   tit.  32,  p.  21,  §  40,  n:    Ham- 

Shorrock,  Law  R.  5  Eq.  72,  S.  C.  mond  v.  Abbott,  166  Mass.  517,  44 

37  L.  J.  Ch.  144.  N.   E.   620;    Bowden   v.   Hunt,    123 

2  Wing  V.  Gay,  36  Vt.  261,  268;  Mich.  295,  82  N.  W.  52,  6  Detroit 

Dubois  V.  Kelly,  10  Barb.  508.     See  Leg.    N.    1054 ;    Wade   v.   Odle,   21 

in  this  connection,  however,  Powers  Tex.  Civ.   App.  656,  64  S.  W.  786. 
V.  Dennison,  30  Vt.  752;  Prince  v.  *  In  Johnson  v.  Rayner,  6  Gray, 

Case,    10  Conn.   375,  27   Am.   Dec.  107,  110.     In  Wooley  v.  Groton,  2 

675.    And  see  Slack  v.  Gay,  22  La.  Cush.   305,   it  is  held   that  by   the 

Ann.  387.  grant  or  exception  in  a  deed  of  a 

'  Forbush   v.    Lombard,    13    Met.  "town  pound,"  the   land   on  which 

109;    Langworthy    v.    Coleman,    18  it   stands   is  conveyed   or   excepted 

Nev.    440;    Whitney    v.    Olney,    3  as  a  parcel,  and  not  as  an  appur- 

Mason,    280;    Blake    v.    Clarke,    6  tenance. 
Greenl.  436,  4  Cruise  Dig.  (Greenl. 


CHAP.    XXXin.]       FIXTURES  PASSING  BY  DEED. 


2253 


mills  and  water  privileges,"  then  owned  by  the  grantor.  At 
the  time  of  the  execution  of  the  deed  there  was  about  an 
acre  of  ground,  lying  common  and  unfenced  as  a  millyard; 
this  acre  tract  was  used  for  the  storage  of  timber,  and  for 
passing  and  repassing  to  and  from  the  mills,  and  a  portion  of 
it  was  afterward  used  by  the  owners  of  the  mills  for  a  garden ; 
the  owners  also  used  It  as  a  site  for  builings  not  connected 
with  the  mills.  It  was  decided  that  the  land  which  had  been 
used  for  a  garden  and  for  such  buildings  was  not  included 
in  the  exception  of  the  grantor's  deed.^  A  deed  which  de- 
scribes the  northerly  boundary  of  the  premises  conveyed  as 
"four  feet  north  from  the  northerly  side  of  the  building, 
now  standing  on  said  premises,"  includes  the  land  on  the 
northerly  side  of  the  building  to  the  distance  of  four  feet 
from  the  eaves,  as  the  latter  are  the  extreme  part  of  the  build- 
ing.* 


sporbush  V.  Lombard,  13  Met. 
109.  Wilde,  J.,  delivering  the  opin- 
ion of  the  court,  said  (p.  114)  : 
"We  think  the  rule  of  construction 
is  well  established,  that  by  the  grant 
of  a  mill,  the  land  under  the  mill 
and  adjacent  thereto,  so  far  as 
necessary  to  its  use,  and  commonly 
used  with  it,  will  pass  by  implica- 
tion :  Blake  v.  Clark,  6  Greenl.  436. 
And  the  same  rule  of  construction 
applies  to  an  exception  in  a  grant. 
But  to  justify  such  an  implication, 
it  should  be  made  to  appear  that 
the  land  adjacent  was  necessary 
for  the  use  of  the  mill;  and  this 
was  not  proved  at  the  trial.  On 
the  contrary,  it  was  proved  and  ad- 
mitted that  the  land  claimed  by  the 
defendant  as  a  mill  yard  has  been 
used  for  purposes  disconnected  with 
the  mills.  A  dwelling-house  and 
barn  have  been  erected  thereon,  and 
part   thereof   has   been   used   as   a 


barnyard,  and  for  raising  garden 
vegetables.  And  this  action  is 
brought  for  erecting  three  other 
small  buildings  within  the  limits  of 
the  millyard,  so  called,  and  con- 
tinuing the  same  from  the  year 
1839  to  the  day  of  the  date  of  the 
writ.  These  facts  are  conclusive 
against  the  defendant's  claim  that 
the  parts  of  the  land  thus  used  and 
occupied  were  necessary  for  the 
use  of  the  mills.  They  cannot, 
therefore,  pass  as  incident  to  a 
grant  of  the  mills,  or  as  parcel 
thereof.  The  land  claimed  was  not 
fenced,  nor  was  the  millyard  desig- 
nated by  any  known  bounds.  Noth- 
ing more,  therefore,  can  be  in- 
cluded within  the  exception  in  the 
deed  from  Whitman  to  Hilton  than 
was  necessary  for  the  use  of  the 
mills." 

6  Millett   V.   Fowle,  8  Cush.    150. 
The  same  ruling  was  made  under 


2254 


THE  LAW  OF  DEEDS.  [CHAP.    XXXIII. 


§  1202.  Agreement  for  removal. — The  parties  may 
control  by  an  agreement,  as  between  themselves  and  those 
who  have  knowledge  of  it,  the  legal  effect  of  attaching  an 
improvement  of  a  permanent  character  to  the  land.'     But 


a  lease  where   it   was  held  that  a 
lease  of  a  "building"  conveyed  the 
land  under  the  eaves,  if  the  lessor 
owned  the  land:    Sherman  v.  Wil- 
liams, 113  Mass.  481,  18  Am.  Rep. 
522.     In  the  latter  case,  Endicott, 
J.,  who  delivered  the  opinion  of  the 
court,    said:      "The    first    question 
to  be  determined  on  this  report  is: 
Did  the  lease  include  the   strip  of 
land,    ten    inches    wide,    under    the 
eaves  in  the  rear  of  the  brick  build- 
ing?    Did   it   pass    under   the   de- 
scription,   'a    certain    brick    build- 
ing   situated    in    said    Boston,    on 
Milk  street,  so  called,  and  numbered 
5,  and  9,  on  said  street?'    The  strip 
ten    inches   wide    was    substantially 
covered  by  the  eaves  of  the  build- 
ing, and  was  owned  by  the  defend- 
ants.     The    well-settled    rule    that 
the  grant  of   a  house  carries  with 
it  the  title  to  all  the  lands  under  the 
house  which  the  grantor  owns,  ex- 
tends   to   all    the    land    covered    or 
occupied   by   the   house   itself.     As 
the  eaves  are  a  part  of  the  build- 
ing,   the    land    under    them    is    in- 
cluded   in    the    description,    when 
owned  by  the  grantor.    Where  land 
is   conveyed,   bounded   on   a   house 
as    a    monument,    the    land    to    the 
edge  of  the  caves  only  passes,  that 
being  the  extreme  part  of  the  build- 
ing;  so   where   the   house   itself    is 
granted    or    demised,    the    extreme 
parts  of  the  house  are  the  bounds 
and  limits  of  the  conveyance,  and 
such  title  as  the  grantor  has  to  the 
land    thus    occupied   by    the    whole 


house  passes  by  the  grant  or  de- 
mise." See,  also,  Carbrey  v.  Willis, 
7  Allen,  364,  83  Am.  Dec.  688; 
Gear  v.  Barnum,  37  Conn.  229. 

7  See  Smith  v.  Waggoner,  50  Wis. 
155;     Schumacher    v.     Edward     P. 
AUis  Co.,  70  IlL  App.  556;  Morrow 
V.  Burney,  51  S.  W.  1078,  2  Ind.  T. 
440.    Although  the  owner  of  realty 
may,   by    proper   contract    of    sale, 
sever    a    fixture    from    the    realty, 
thereby  converting  it  into  a  personal 
chattel,    without    at    the    time    phy- 
sically   detaching   such    fixture,   yet 
the  contract  must  be  in  writing  and 
be    executed    with    the    same    for- 
mality   as    a    conveyance    of    the 
realty,  since  in  law  the  fixture  is  a 
part    of    the    realty:     Johnston    v. 
Philadelphia  Mortgage  &  Trust  Co., 
30  So.  15,  129  Ala.  575,  87  Am.  St. 
Rep.   75.     But   where   a   chattel   is 
annexed  to  realty  under  an  agree- 
ment that  the  chattel  shall  remain 
personal    property,   such   agreement 
need    not    be    in    writing:     Pile    v. 
Holloway,    129   Mo.   App.   593,    107 
S.  W.  1043.    Machinery  placed  upon 
land  by  a  purchaser  under  an  exe- 
cutory contract  does  not  become  a 
part  of  the  realty  where  there  is  an 
expressed    agreement    between    the 
vendor  and  purchaser  that  the  ma- 
chinery   shall    remain    the   personal 
property    of    the    purchaser.      The 
vendor  cannot  enforce  a  provision 
of  the  agreement  limiting  the  time 
within    which   the   machinery   must 
be    removed    by    the    purchaser    in 
case  of  default  in  making  payments 


CHAP.    XXilll.]       FIXTURES  PASSING  BY  DEED. 


2255 


a  parol  agreement  of  this  character  will  not  bind  a  subsequent 
vendee  who  has  no  notice  of  it.  Hence,  where  a  fence  is 
built  by  a  person  upon  another's  land,  under  a  parol  agree- 
ment that  the  builder  might  remove  it  at  pleasure,  it  becomes 
a  fixture  which  will  pass  with  a  conveyance  of  the  land  to  a 
bona  Me  purchaser  who  has  no  notice  of  the  adverse  title  to 
the   fence.'     And  the  same  principle,   of   course,   applies  to 


for  the  propert3%  where  such  de- 
fault is  due  to  the  fault  of  the 
vendor.  Rodgers  v.  Hite,  143  Fed. 
594.  An  agreement  for  removal 
of  personal  property  otherwise 
annexed  to  the  real  property  so  as 
to  become  a  part  thereof  may  be 
implied  where  an  intention  not  to 
annex  the  property  permanently  to 
the  freehold  is  shown.  Albertson 
V.  Elk  Creek  Gold-Min.  Co.,  39  Or. 
552,  65  Pac.  978. 

8  Rowand  v.  Anderson,  33  Kan. 
264,  52  Am.  Rep.  529.  See  Samp- 
son V.  Graham,  96  Pa.  St.  405. 
Where  an  act  of  sale  was  made  of 
a  plantation  with  the  appurtenances 
thereto,  and  in  the  act  is  was  stated 
that  the  appurtenances  were  in- 
cluded in  a  list  annexed  to  the 
act,  and  the  list  did  not  include  the 
fencing  of  the  plantation,  it  was 
held  that  the  fencing  passed  never- 
theless with  the  land:  Bagley  v. 
Rose  Hill  Sugar  Co.,  35  So.  539, 
111  La.  249.  In  Rowand  v.  Ander- 
son, 33  Kan.  264,  267,  52  Am.  Rep. 
529,  Johnston,  J.,  in  delivering  the 
opinion  of  the  court,  said :  "There 
is  considerable  disagreement  in  the 
decisions  of  the  courts  with  respect 
to  how  far  the  doctrine  of  modify- 
ing the  general  law  of  fixtures, 
by  agreement  may  be  carried. 
Some  of  the  cases  would  seem 
to     go    to    the     extent    of     hold- 


ing that  parties  may,  by  agree- 
ment change  the  nature  of  prop- 
erty, make  that  which  would  other- 
wise be  a  part  of  the  realty, 
personal  property,  and  that  a  pur- 
chaser of  the  realty  would  be 
bound  by  such  agreement,  even 
though  he  had  no  notice  of  the 
same.  Others  of  them  are  to  the 
effect  that  the  distinctions  between 
realty  and  personalty  cannot  be 
changed  by  the  mere  agreement  of 
the  parties,  and  that  a  purchaser  of 
real  estate,  in  the  absence  of  notice 
to  the  contrary,  has  a  right  to  sup- 
pose that  he  takes  with  it  every  ap- 
purtenance which,  under  the  general 
rules  of  law,  passes  with  the  grant 
of  land,  and  that  he  cannot  be 
affected  by  any  secret  claim  or  priv- 
ate agreement  of  which  he  has  had 
no  notice.  It  may  be  conceded  that 
a  party  who,  under  a  parol  permis- 
sion or  license,  places  upon  the  land 
of  another  a  permanent  improve' 
ment,  with  the  right,  when  he  de- 
sires, to  enter  and  take  it  there- 
from, may  exercise  that  right  at 
any  time  before  the  permission  or 
license  is  revoked  by  the  landowner, 
and  probably  he  has  the  right  to 
enter  to  remove  the  fixture  within 
a  reasonable  time  after  the  revoca- 
tion; and  it  would  seem  that  any 
subsequent  vendee  who  purchased 
the  land  with  notice  of  such  parol 


2256  THE  LAW  OF  DEEDS.  [CHAP.    XXXIIl. 

buildings  and  all  other  structures.^  "The  policy  of  our  law," 
said  Mr.  Chief  Justice  Williams,  of  Connecticut,  "is  that 
titles  to  real  estate  shall  appear  upon  record,  so  that  all 
may,  in  this  way,  be  informed  where  the  legal  estate  is.  But 
were  this  new  mode  of  conveyance  to  prevail,  encumbrances 
might  frequently  be  found  to  exist,  against  which  no  vigilance 
could  guard,  no  diligence  protect.  Our  records  would  be 
fallacious  guides,  and  when  we  had  gained  all  the  information 
they  could  give,  we  should  remain  in  doubt  as  to  the  title. 
It  is  much  better  to  leave  those  who  had  ventured  to  rely 
upon  the  word  or  honor  of  another  to  resort  to  that  word  or 
honor  for  their  redress,  than  to  suffer  a  person  who  had  re- 
sorted to  the  official  register  to  be  defeated  by  secret  claims 
of  this  kind.  The  law  cannot  prefer  the  claims  of  those  who 
take  no  care  of  themselves,  to  those  who  have  faithfully  used 
all  legal  diligence.  If  a  loss  is  to  be  sustained,  it  is  more 
reasonable  that  he  who  has  neglected  the  means  the  law  put 
into  his  power  should  suffer,  rather  than  he  who  has  used 
those  means."  *  Where  a  building  has  been  erected  upon 
the  land  of  another,  so  as  to  become  a  fixture,  with  the 
understanding  that  the  builder  is  to  remove  it  upon  receiving 
notice  from  the  owner  of  the  land,  a  subsequent  mortgagee, 
having  no  notice  of  such  understanding,  is  entitled,  after  a 
decree  of  foreclosure  and  entry,  to  possession  of  the  prem- 
ises, the  building  as  well  as  to  the  land.  An  action  of 
trespass  may  be  maintained  by  him  against  the  person  erect- 
agreement  or  license,  and  of  the  not  been  brought."  See,  also, 
interest  of  the  parties  in  the  fixture,  Walker  v.  Schindel,  58  Md.  360. 
would  be  bound  by  such  agreement.  ®  Powers  v.  Dennison,  30  Vt.  752; 

But  we  think  this  doctrine  cannot  Prince  v.  Case,  10  Conn.  375,  27 
be  carried  to  the  extent  of  binding  Am.  Dec.  675;  Peaks  v.  Hntchin- 
or  aiTecting  injuriously  third  par-  son,  96  Me.  530,  59  L.R.A.  279,  53 
tics  to  whom  the  land  has  been  con-       All.   38. 

vcyed   without    reservation,   and   to  ^  In  Prince  v.  Case,  10  Conn.  375, 

whose  notice  the  parol  license  had      27  Am.  Dec.  675. 


CHAP.    XXXIII.]      FIXTURES  PASSING  BY  DEED.  2257 

ing-  the  building  if  he  then  remove  it.'  If  an  engine  for  the 
propulsion  of  machinery  is  purchased  by  the  owner  of  a  mill 
who  executes  a  chattel  mortgage  on  it  to  secure  the  payment 
of  the  price,  although  the  owner  may  attach  it  physically  to 
the  freehold,  it  will  remain  personal  property  where  the  rights 
of  third  persons  will  not  be  prejudicially  affected.'  Where 
an  agreement  is  made  that  the  title  to  chattels  shall  not  pass 
until  paj'ment  is  made  for  them  they  will  remain  personal 
property,  unless  they,  or  the  realty  would  be  seriously  injured 
by  their  removal.*  So,  where  it  is  provided  that  the  title 
to  machinery  shall  remain  in  the  vendor  until  payment,  a 
purchaser  from  the  vendee  cannot  before  payment  attach  the 
machinery  to  the  mill  so  as  to  convert  it  into  realty.'  An 
agreement  of  this  character  where  the  removal  of  the  ma- 
chinery can  be  made  without  material  injury  to  the  real  estate 
manifests  an  intention  that  the  property  shall  remain  person- 
ally, and  this  will  be  sufficient,  to  cause  it  to  remain  such.' 

2  Powers  V.  Dennison,  30  Vt.  752.  affected  by  the  record  of  a  chattel 

The  possession  of  the  party  erect-  mortgage  upon  fixtures;  Ice  Light 

ing  the  building  is  said  not  to  be  &  Water  Co.  v.  Lone  Star  Engine 

notice:    Prince   v.    Case,    10    Conn.  &  Boiler  Works,  15  Tex.  Civ.  App. 

375,    27    Am.    Dec.    675.      Where  694,  41  S.  W.  835. 
buildings  were  erected  by  a  tenant  3  Edwards    etc.    Lumber    Co.    v. 

under  an  agreement  with  the  land-  Rank,  57  Neb.  323,  11  N.  W.  765, 

lord   whereby   the   tenant   reserved  IZ  Am.   St.   Rep.   514. 
the   right   to   remove  the   buildings  *Duntz  v.  Granger  Brewing  Co., 

at  any  time  during  the  lease,  it  was  41  Misc.  Rep.  177,  83  N.  Y.  S.  957^ 
held  that  a  subsequent  purchaser  of  5  Gill    v.    De    Armant,    90    Mich, 

the  property  without  notice  of  the  425,  Si  N.  W.  527. 
agreement  took  the  buildings  as  a  «  Schellenberg  v.  Detroit  Heating 

part   of    the   land:    Union    Central  &  Lighting  Co.,   130  Mich.  439,  57 

Life  Ins.   Co.  v.  Tillery,   152,   Mo.  L.R.A.  632,  90  N.  W.  47,  97  Am 

421,  54  S.  W.  220,  75  Am.  St.  Rep.  St.   Rep.  489.     See,  also, 'the   case 

480.      A    purchaser    of     realty    is  of  a  planer  and  matcher  for  a  saw 

bound   only  to   take   notice   of   the  mill,    under    a    contract    reserving 

record  title  of  the  realty  and  is  not  title :  Wm  Cameron  &  Co.  v.  Jones, 

bound  to  examine  the  records  for  41  Tev.  Civ.  App.  4,  90  S.  W.  1129. 
chattel    mortgages    for   he    is    not 
Deeds,  Vol.  II.— 142. 


2258 


THE  LAW  OF  DEEDS.  [CHAP.    XXXIII. 


§  1203.  Chattels  not  annexed  to  the  realty. — The  gen- 
eral rule  is  that  chattels  which  are  not  annexed  to  the  free- 
hold do  not  pass  by  a  conveyance.  An  exception  to  this  gen- 
eral rule  is  admitted  in  the  case  of  articles  which  are  con- 
structively annexed,  as  doors,  keys,  locks,  and  windows  of 
a  house.  "If  there  be  anything  well  settled  in  the  doctrine 
of  fixtures,  it  is  this:  that  to  constitute  a  fixture,  it  is  an 
essential  requisite  that  the  article  be  actually  affixed  or  an- 
nexed to  the  realty.  The  term  itself  imports  this."  '  Hence 
boards,  rails,  and  bricks,  cut  and  made  from  the  soil  of  land 
belonging  to  the  United  States,  do  not  pass  to  one  who  sub- 
sequently purchases  the  land  from  the  government,  although, 
at  the  time  of  the  purchase,  the  several  chattels  are  still  upon 
the  land.'  And  so  cordwood  and  other  timber  cut  into  mer- 
chantable form,  remaining  on  public  land  at  the  time  the  pat- 
ent therefor  is  issued,  form  personal  property,  and  the  pat- 
entee is  not  entitled  to  it.'     "A  certificate  of   purchase  or 


Teaff  V.  Hewitt,  1  Ohio  St.  511, 
59  Am.  Dec.  634.  It  may,  in  certain 
cases,  be  left  to  the  jury  to  deter- 
mine whether  certain  articles  actu- 
ally form  a  part  of  the  realty : 
Leonard  v.  Stickney,  131  Mass.  541. 

*  Carpenter  v.  Lewis,  6  Ala.  682. 
Counters,  meat  racks  and  ice  box 
used  in  a  grocery  business  and  meat 
shop,  not  attached  to  the  real  prop- 
erty, do  not  pass  with  a  deed  to  the 
real  property:  Grififin  v.  Jansen, 
19  Ky.  Law  Rep.  19,  39  S.  W.  43. 
.  9  Peck  V.  Brown,  5  Nev.  81. 
Whitman,  J.,  delivering  the  opinion 
of  the  court,  said:  "Unless  the 
right  to  the  timber  cut  passed  to  the 
respondent  by  his  patent,  he  had 
none;  and  it  could  only  pass  as  a 
fixture  on  or  appurtenance  to  the 
realty ;  but  timber  felled  by  act  of 
man,  or  wood  cut,  is  personal  prop- 
erty.   Some  of  the  decided  cases  go 


a  great  length  in  passing  with  the 
freehold  what  abstractly  would  be 
held  personalty ;  perhaps  none  has 
further  extended  the  rule  or  its  ap- 
plication than  Farrar  v.  Stackpole, 
6  Me.  155,  19  Am.  Dec.  201;  and 
Kittridge  v.  Woods,  3  N.  H.  503, 
14  Am.  Dec  393.  In  the  first  of 
these  cases,  it  was  held  that  a  mill 
chain,  dogs,  and  bars  in  their  appro- 
priate places  when  the  deed  was 
made,  the  chain  attached  by  a  hook 
to  a  piece  of  draft  chain,  which  was 
fastened  to  the  shaft  by  a  spike, 
passed  under  a  deed  conveying  a 
sawmill  with  the  privileges  and  ap- 
purtenances. This  decision  was 
based  upon  the  principle  'that  cer- 
tain things,  personal  in  their  na- 
ture, when  fitted  and  prepared  to  be 
used  with  real  estate,  change  their 
character  and  appertain  to  the  real- 
ty, as  an  incident  or  accessory  to 


CHAP.    XSilll.]       FIXTURES   PASSING  BY  DEED.  2259 

patent  vests  in  the  patentee  a  title  to  the  land,  and  generally 
all  that  is  growing  on,  or  is  in  the  contemplation  of  law 
attached  to  the  land,  as  houses,  fences,  growing  timber,  grain, 
etc. ;  and  it  is  said  that  fallen  timber  passes  with  the  land. 
But  that  which  has  been  severed  from  the  land,  and  by  the 
art  and  labor  of  man  converted  into  personal  property,  such 
as  implements  of  husbandry,  barrels,  furniture,  or  even  rails 
when  not  put  into  a  fence  or  evidently  intended  to  be  so 
used  upon  the  land  (which  could  not  be  inferred  if  made  by 
a  stranger),  do  not  pass  with  it,  any  more  than  the  grain,  grass, 
or  fruit,  which  has  grown  upon  and  been  gathered  from  it."  * 

§  1204.  Same  subject  continued — Illustrations, — A 
deed  will  not  convey  as  fixtures  or  appurtenances  to  the 
land,  hewed  timber  and  fence  posts  unattached  to  the  soil, 
and  oral  evidence  is  inadmissible  to  show  that  it  was  the 
intention  of  the  parties  that  the  deed  should  embrace  or  pass 
the  title  to  these  articles.*    Wood  and  timber  cut  down  before 

its  principal.'     In  the  second  case  actually    annexed    or    attached    to, 

cited  under  the  same  rule,  it  was  and  in   regard  to  things  not   fully 

held  that  certain  heaps  of  manure  severed     from,    the     freehold,    we 

passed   by    deed    for    the   land    as  should    give    him    all   that    in   law 

appurtenant,  being   intended   to  be  belongs  to  the  land,  under  the  terms 

used   upon   it,   and    for   its  benefit.  and   description   in   his   deed.     But 

In  the  present  case,  the  timber  and  after  doing  this  in  its  most  extend- 

wood  were  cut  expressly  to  be  tak-  ed  sense,  we  are  not  able  to  include 

en  from  the  premises,  and  the  rule  these    hewed    timbers,    posts,    and 

of  decision  quoted  has  no  applica-  round  logs,  lying  loosely  about  up- 

tion."  on    the    land,    although    originally 

^  Chief  Justice  Wilson  delivering  provided  and  intended  for  a  gran- 

the  opinion  of  the  court  in  Wincher  ary  on  the  land,  as  fixtures  becom- 

v.  Shrewsbury,  2  Scam.  283,  284,  35  ing    part    of    it.      In    Wincher    v. 

Am.  Dec.  108.    See,  also.  Woodruff  Shrewsbury,  2  Scam.  283,  35  Am. 

V.  Roberts,  4  La.  Ann.  127 ;  Robert-  Dec.  108,  this  court  held  that  rails 

son  V.   Phillips,  3  Greene,   G.  220.  made  upon  Congress  land  and  piled, 

2  Cook    V,    Whiting,    16    111.    480.  would  not  pass  to  the  purchaser  by 

Scates,  C.  J.,  speaking  for  the  court,  the   usual    description   of   land,   al- 

said :    "Viewing    a    vendee    as    one  though  the  act  of  severance  might 

strictly  protected  in  regard  to  things  have  been  a  trespass,    I  know  that 


2260 


THE  LAW  OF  DEEDS.  [CHAP.    XXXIII. 


a  sale  of  the  land  becomes  personal  property,  and  hence,  being 
severed  from  the  inheritance,  does  not  pass  to  the  purchaser.^ 
A  rough  split  stone  brought  from  a  distance  and  placed  in 
a  dooryard  for  the  purpose  of  being  used  at  some  future  time 
as  a  doorstep,  but  not  placed  in  position  or  used  as  such,  is 
a  chattel,  and  not  a  fixture.* 


this  subject  is  full  of  difficulty;  and 
a  question  respecting  such  timber 
as  may  have  been  severed  from  the 
land  by  storms,  decay,  and  acci- 
dents, will  deserve  serious  consid- 
eration when  presented.  But  here 
the  separation  by  the  act  of  the 
owner  was  complete,  and  he  had 
unquestionably  converted  it  into 
personalty,  though  with  the  inten- 
tion of  reannexing  it  to  the  free- 
hold at  a  future  time.  But  before 
this  was  done  he  sold  his  land  and 
conveyed  it,  not  only  by  the  usual 
terms,  but  by  a  general  description 
which  included  in  its  boundaries 
more  than  he  intended  to  convey, 
and  from  which  he  reserved  or  ex- 
cluded a  part  by  specified  bounda- 
ries. We  cannot  from  this  partic- 
ularity found  in  the  deed,  suppose 
any  more  intended  than  is  provided 
for  in  it,  and  fixtures  will  not  in- 
clude these  articles  as  part  of  the 
description  of  land,  tenements,  or 
hereditaments  appertaining  thereto. 
But  it  is  now  insisted  upon  and 
claimed  to  be  included  under  'ap- 
purtenances' within  the  true  intent 
of  the  deed.  'This  term,  both  ift 
common  parlance  and  in  legal  ac- 
ceptation, is  used  to  signify  some- 
thing appertaining  to  another  thing 
as  principal,  and  which  passes  as 
an  incident  to  the  principal  thing. 
Lord  Coke  says  (Co.  Lit.  12lb) 
a  thing  corporeal   cannot   properly 


be  appurtenant  to  a  thing  corpo- 
real, nor  a  thing  incorporeal  to  a 
thing  incorporeal.'  Harris  et  al.  v. 
Elliott,  10  Peters,  S3,  54,  9  L.  ed. 
344;  Leonard  v.  White,  7  Mass.  6- 
8,  5  Am.  Dec.  19.  See,  also.  Jack- 
son v.  Hathaway,  15  Johns.  451,  8 
Am.  Dec.  263.  So  these  materials 
cannot  pass  under  the  term  'ap- 
purtenances.' " 

8  Crouch  v.  Smith,  1  Md.  Ch.  401. 

*  Woodman  v.  Pease,  17  N.  H. 
282.  Woods,  J.,  said:  "The  term 
'fixture'  may  embrace  other  things 
than  such  as  are  denoted  by  the 
word  in  its  strict  etymological 
sense ;  and  whatever  has  been 
placed  upon  the  soil,  or  upon  a 
building  for  the  purpose  of  being 
used  as  a  part  of  the  realty,  may 
properly  fall  under  the  denomma- 
tion  of  a  fixture,  although  not  so 
attached  to  it  that  it  cannot  be  sev- 
ered without  disturbing  or  breaking 
the  soil.  But  a  chattel  that  is  fit 
to  be  annexed  to  the  freehold,  and 
has  been  brought  upon  it  with  an 
intention  on  the  part  of  the  pos- 
sessor to  annex  it,  does  not  become 
a  fixture  unless  actually  annexed 
or  placed  in  the  position  in  which 
it  was  intended  to  be  used,  and  in 
which  it  is  adapted  for  use.  These 
principles  are  so  obvious,  and  admit 
of  illustration  so  diversified  and  so 
familiar,  that  it  is  unnecessary  to 
adduce   authority   or   argument   to 


CHAP.    XXXIII.]      FIXTURES  PASSING  BY  DEED. 


2261 


§  1205.  Use  on  the  land.— The  same  principles  that 
apply  to  timber  and  fence  rails  when  severed  from  the  free- 
hold, also  govern,  when  the  question  concerns  a  stone  split 
out  and  slightly  removed,  and  laid  up  for  the  purpose,  and 
with  the  intention  by  the  owners  of  the  farm  upon  which  it 
was  quarried  and  left  standing,  of  using  it  in  the  construction 
of  a  tomb  elsewhere ;  such  a  stone  would  not  pass  by  a  deed 
of  the  farm.  The  rule  with  respect  to  chattels  of  this  char- 
acter is,  that  if  they  are  intended  for  use  on  the  land  on  which 
they  lie,  they  pass  by  a  deed  of  the  realty;  but  if  they  are 
intended  for  use  elsewhere,  they  do  not  pass  by  virtue  of  the 
deed.**     As  illustrating  the  proposition  that  a  chattel  cannot 


sustain  them.  Their  application  to 
this  case  is  very  plain.  The  stone 
was  brought  into  the  yard  by  Pea- 
body,  for  the  purpose  of  being  de- 
voted at  a  future  time  to  the  fin- 
ishing of  the  house  which  he  had 
built.  He  intended  to  annex-  it  to 
the  house  and  to  make  it  a  part  of 
it.  In  that  respect  it  was  like 
bricks,  lime,  lumber,  or  other  ma- 
terials to  be  used  in  building.  So 
long  as  they  remain  unannexed  to 
the  house,  they  continue  to  be  chat- 
tels; and  assume  the  character  of 
the  realty  and  become  assimilated 
with  the  land,  by  the  process,  what- 
ever it  may  be,  which  prepares  them 
for  and  places  them  in  their  posi- 
tions to  be  used  and  enjoyed  with 
the  structure  or  with  the  soil.  This 
stone  was  fit  to  be  made  a  doorstep. 
It  was  carried  there  for  the  pur- 
pose of  building  a  fence  on  the 
serve  as  such,  and  by  such  position 
adaptation  for  use,  become  parcel 
of  the  house  itself.  But  that  plan 
was  never  executed,  and  the  stone 
remained  a  chattel,  and  did  not  be- 
come    a    fixture     in     any     sense." 


Timber  cut  from  land  and  piled 
thereon,  though  cut  with  the  pur- 
pose of  builidng  a  fence  on  the 
land,  does  not  become  a  part  of  the 
realty  unless  actually  attached 
thereto:  Longino  v.  Wester  (Tex. 
Civ.  App.)  88  S.  W.  455.  A  hop 
press  not  attached  to  the  building 
do  not  pass  as  an  appurtenant  of 
the  land.  Sherrick  v.  Cotter,  28 
Wash.  25,  68  Pac.  172,  92  Am. 
St.  Rep.  821.  A  safe  placed  on 
foundation  of  stone  and  cement 
constructed  for  the  purpose  of  sup- 
porting the  safe  but  which  was  not 
attached  to  the  foundation  was 
held  not  to  be  a  fixture  even 
though  the  safe  could  not  be  re- 
moved from  the  building  without 
taking  out  a  part  of  the  wall  of 
the  room  in  which  it  was  situated : 
Parker  v.  Blount  County,  148  Ala. 
275,  41  So.  923. 

5  Noble  V.  Sylvester,  42  Vt.  146. 
It  was  held  that  as  there  was  noth- 
ing about  the  stone  or  its  position 
to  indicate  the  use  to  which  it  was 
to  be  put,  this  was  a  proper  subject 
of   explanation  between   the   seller 


2262 


THE  LAW  OF  DEEDS. 


[chap.  xxxm. 


be  converted  into  realty  except  by  attaching  it  to  real  estate 
so  as  to  make  it  a  fixture,  and  if  it  is  not  annexed  in  this 
mode,  it  retains  its  character,  as  personalty,  we  may  cite  a 
case  where  this  rule  was  applied  with  reference  to  a  sawmill 
built  upon  timbers,  lying  upon  the  surface  of  the  ground, 
erected  for  the  purpose  of  sawing  timber  within  a  convenient 
distance,  and  then  intended  to  be  removed  to  another  place. 
As  the  sawmill  was  not  connected  with  the  freehold,  nor 
essential  to  its  full  enjoyment,  it  could  be  regarded  in  no 
other  light  than  a  mere  personal  chattel,  and  would  not  be 
transferred  by  a  conveyance  or  patent  of  the  land."  A  mill 
and  gin  stand  not  attached  to  the  soil  except  by  its  own  weight, 
though  it  may  be  used  for  the  purposes  of  a  farm,  is  not 
a  part  of  the  realty;  nor  is  a  bell  used  for  fann  purposes, 
where  it  is  set  upon  posts  only,  and  is  not  permanently  an- 
nexed to  the  soil.' 


and  purchaser  at  the  time  the  deed 
was  executed,  and  such  explanation, 
though  accompanied  by  a  formal 
parol  exception  of  the  stone,  which 
was  unnecessary,  might  be  by  parol. 
Structural  iron  and  cut  stone,  lying 
on  a  lot  and  intended  to  be  used  in 
a  partially  constructed  building  on 
the  lot,  held  to  pass  by  the  owner's 
warranty  deed  of  the  lot:  Byrne  v. 
Werner,  138  Mich.  328,  69  L.R.A. 
900,  101  N.  W.  555,  11  Detroit  Leg. 
N.  607,  110  Am.  St.  Rep.  315. 

6  Brown  v.  Little,  6  Nev.  244. 
Lewis,  C.  J.,  speaking  for  the  court, 
said  (p.  251)  :  "We  know  of  no 
method  of  converting  a  personal 
chattel  into  real  estate,  or  giving 
it  the  character  of  realty,  except 
by  making  it  a  fixture;  and  if  it  be 
not  so  attached  as  to  become  a  fu- 
ture, it  retains  its  character  of  per- 
sonalty entirely  unmodified  or  af- 
fected  by   its   situation.     That   an 


erection  of  any  kind  placed  on  the 
land,  but  not  annexed  or  fastened 
to,  or  imbedded  in  the  soil,  and  not 
intended  to  be  permanent,  or  left 
indefinitely  thereon,  cannot  be 
deemed  a  fixture,  is  a  proposition, 
we  think,  fully  warranted  by  al- 
most the  entire  weight  of  decisions; 
and  if  not  a  fixture,  we  are  author- 
ized in  concluding  that  it  is  a  per- 
sonal chattel  merely,  and  must  be 
regulated  by  the  law  governing  that 
class  of  property." 

'Cole  V.  Roach,  Z7  Tex.  412. 
The  case  was  reversed  upon  anoth- 
er point,  but  the  court  observed 
that  these  articles  were  not  a  part 
of  the  real  estate.  With  reference 
to  a  cistern  set  upon  blocks  by  the 
house  to  catch  water,  the  court, 
per  Ogden,  J.,  observed  (p.  418)  : 
"In  a  suit  by  the  heir  against  the 
administrator,  a  cistern  sitting 
against  the  wall  was  held  in  Massa- 


CHAP.    XXXIIT.]      FIXTURES  PASSING  BY  DEED. 


^263 


§  1206.  Temporary  removal.— Mr.  Justice  Cowan,  af- 
er  adverting  to  the  general  rule  that  anything  of  a  personal 
nature,  not  attached  to  the   freehold,  cannot  be  considered 


chuseUs  to  be  a  fixture,  and  a  part 
of  the  realty;  but  as  between  a 
landlord  and  a  tenant,  it  has  been 
often  held  by  the  courts  to  be  a 
personal  chattel,  subject  to  removal 
by  the  tenant.  We  have  found  no 
case  deciding  the  question  when 
raised  as  between  the  vendor  and 
vendee  of  realty ;  but  we  are  in- 
clined to  the  opinion  that  in  this 
country  where,  in  many  instances, 
cisterns  are  used  as  a  substitute  for 
wells,  and  where  a  house  or  farm 
without  a  cistern  attached  would 
often  be  considered  almost  unin- 
habitable, where  a  cistern  has  been 
placed  against  the  house  for  the 
purpose  of  supplying  the  inmates 
with  water,  and  has  been  used  and 
depended  upon  for  that  purpose,  it 
should  be  considered  a  part  of  the 
realty  as  much  as  the  key  to  the 
door,  or  the  fence  around  the  yard 
or  field.  It  has  become  a  necessity 
to  the  farm  or  dwelling,  and  should 
pass  with  it." 

In  Winslow  v.  Merchants'  Insur- 
ance Co.,  4  Met.  306,  38  Am.  Dec. 
368,  Chief  Justice  Shaw,  delivering 
the  opinion  of  the  court,  to  the 
effect  that  a  steam-engine,  boilers, 
and  machinery  placed  in  a  building 
intended  for  the  manufacture  of 
steam-engines,  are  fixtures,  says, 
however  (p.  314)  :  "As  to  what 
shall  be  deemed  fixtures  and  part 
of  the  realty,  when  the  question 
does  not  arise  as  between  landlord 
and  tenant,  or  tenant  for  life  and 
remainderman,  in  regard  to  im- 
provements made  by  the  tenant,  it 


is  difficult  to  lay  down  any  general 
rule  which   shall   constitute   a  cri- 
terion.   The  rule  that  objects  must 
be    actually    and   firmly    affixed   to 
the   freehold  to  become  realty,  or 
otherwise  to  be  considered  person- 
alty, is  far  from  constituting  such 
criterion.      Doors,    window   blinds, 
and   shutters,   capabe   of  being   re- 
moved without  the  slightest  damage 
to  a  house,  and  even  though  at  the 
time   of   a   conveyance,   an   attach- 
ment, or  a  mortgage,   actually  de- 
tached, would  be  deemed,  we  sup- 
pose, a  part  of  the  house,  and  pass 
with  it.    And  so,  we  presume,  mir- 
rors,  wardrobes,   and   other   heavy 
articles  of   furniture,  though   fast- 
ened to  the  walls  by  screws  with 
considerable  firmness,  must  be  re- 
garded as  chattels.    The  difficulty  is 
somewhat  increased  when  the  ques- 
tion arises  in  respect  to  a  mill  or 
manufactory,   where  the   parts   are 
often  so  arranged  and  adapted,  so 
ingeniously  combined  as  to  be  oc- 
casionally connected  or  disengaged, 
as  the  objects  to  be  accomplished 
may  require.    In  general  terms,  we 
think  it  may  be  said  that  when  a 
building  is  erected  as  a  mill,  and 
the   water   works   or  steam   works 
which  are  relied  upon  to  move  the 
mill  are  erected  at  the  same  time, 
and  the  works  to  be  driven  by  it 
are    essential    parts    of    the    mill, 
adapted  to  be  used  in  it  and  with 
it,  though  not  at  the  time  of  the 
conveyance,    attachment,    or    mort- 
gage, attached  to  the  mill,  are  yet 
parts  of  it,  and  pass  with  it  by  a 


2264 


THE  LAW  OF  DEEDS.  [CHAP.    XXXIII. 


as  an  incident  to  the  land,  even  in  a  case  between  vendor 
and  vendee,  observes:     "I  have  said  that  as  a  general  rule 
they  cannot  be  considered  an  incident  unless  they  are  affixed. 
This  is  not  universally  so.    A  temporary  disannexing  and  re- 
moval, as  of  a  millstone  to  be  picked,  or  an  anvil  to  be  re- 
paired, will  not  take  away  its  character  as  a  part  of  the  free- 
hold.    Locks  and  keys  are  also  considered  as  constructively 
annexed;  and,  in  this  country,  it  must  be  so  with  many  other 
things  which  are  essential  to  the  use  of  the  premises.     Our 
ordinary  farm  fences  of  rails,  and  even  stone  walls,  are  affixed 
to  the  premises  in  no  other  sense  than  by  the  power  of  gravi- 
tation.   It  is  the  same  with  many  other  erections  of  the  lighter 
kind  about  a  farm.    I  shall  hereafter  have  occasion  to  notice 
these,  and  a  few  other  like  instances  of  constructive  fixtures. 
I  admit  that  some  of  the  cases  are  quite  too  strict  against 
the  purchaser;  but  as  far  as  I  have  looked  into  them,  and  I 
have  examined  a  good  many,  both  English  and  American, 
they  are  almost  uniformly  hostile  to  the  idea  of  mere  loose, 
movable  machinery,  even  where  it  is  the  main  agent  or  prin- 
cipal thing  in  prosecuting  the  business  to  which  a  freehold 
property  is  adapted,  being  considered  as  a  part  of  that  free- 
hold for  any  purpose.    To  make  it  a  fixture,  it  must  not  only 
be  essential  to  the  business  of  the  erection,  but  it  must  be  at- 
tached to  it  in  some  way;  at  least,  it  must  be  mechanically 
fitted,  so  as  in  ordinary  understanding  to  make  a  part  of  the 
building   itself.""     In   an   early   case   in   Maryland,    it   was 

conveyance,    mortgage,    or    attach-  Wend.  636,  639.    With  reference  to 

ment:  Powell  v.   Monson  &  Brim-  fixtures   of   various   kinds,   see   Re 

field  Mfg.  Co.,  3  Mason,  466;  Far-  Dawson,   Ir.    Law    R.    2    Eq.    218; 

rar  v.  Stackpole,  6  Greenl.  154,  19  Rogers    v.    Brokaw,   25    N.   J.    Eq. 

Am.   Dec.  201 ;   Gray   v.   Holdship,  496 ;  Baker  v.  Davis,  19  N.  H.  325, 

17  Serg.  &  R.  415,  17  Am.  Dec.  680;  232;  Hutchinson  v.  Kay,  23  P^av. 

Voorhees  v.  Freeman,  2  Watts  &  S.  413 ;   Gale  v.  Ward,   14  Mass.  352, 

116,  37  Am.  Dec.  490."     See  as  to  7  Am.  Dec.  223;  Swift  v.  Thomp- 

rails  and  bricks,  Thweat  v.  Stamps,  son,  9  Conn.  63,  21  Am.  Dec^718; 

67    Ala.    96.  Pierce  v.  George,  108  Mass.  78,  11 

8  In     Walker     v.     Sherman,     20  Am.  Rep.  310;  Tobias  v.  Francis,  3 


CHAP.    XXXIII.]       FIXTURES   PASSING  BY  DEED. 


2265 


held,  upon  a  sale  of  a  distillery  and  improvements  upon  execu- 
tion, that  the  sheriff's  deed  passed  the  pumps,  cistern,  door, 
and  iron  grating  connected  with  the  property,  but  did  not  con- 


Vt.  425,  23  Am.  Dec  217;  Longbot- 
tom  V.  Berry,  Law  R.  5  Q.  B.  123 ; 
s.  c.  39  Law  J.  (N.  S.)  Q.  B.  2,7; 
Despatch  Line  v.  Bellamy  Mfg.  Co., 
12  N.  H.  205,  37  Am.  Dec.  203; 
Taffe  V.  Warnick,  3  Blackf.  Ill, 
23  Am.  Dec.  383.  In  Tobias  v. 
Francis,  supra,  the  owner  of  a 
wool-carding  factory  conveyed  it 
with  all  the  machinery.  He  took 
from  the  vendee  a  mortgage  deed, 
at  the  same  time,  of  the  same 
property,  for  the  purpose  of  secur- 
ing the  payment  of  the  purchase 
money.  The  vendee  entered,  took, 
and  retained  possession.  It  was 
connected  with  the  building  in 
which  it  was  worked  by  a  band 
only,  but  it  might  be  removed  from 
the  building  without  being  first  tak- 
en in  pieces.  Change  of  posses- 
sion being  necessary  to  the  valid- 
ity of  a  chattel  mortgage,  it  was 
held  that  the  machinery  was  per- 
sonal property,  and  notwithstanding 
the  mortgage,  was  liable  to  attach- 
ment at  the  suit  of  any  creditor  of 
the  vendee.  Gale  v.  Ward,  supra, 
was  a  similar  case.  P.  &  D.  Brig- 
ham,  the  owners,  conveyed  the  land 
"having  a  wool-carding  factory, 
and  the  appurtenances  for  carry- 
ing on  the  same,  which  are  com- 
prised in  this  grant,"  to  one  Bea- 
ton. Beaton  at  the  same  time  gave 
to  the  Brighams  a  mortgage  by  like 
description,  as  security  for  the  pay- 
ment of  the  purchase  money.  Bea- 
ton also  at  the  same  time  gave  to 
the  Brighams  a  lease  of  the  prem- 
ises  by    a   like   description    for   a 


term  exceeding  a  year.  The  card- 
ing machines  were  seized  by  the 
sheriff  by  virtue  of  an  execution 
against  Beaton  who  was  in  posses- 
sion. The  reporter  thus  described 
the  machines :  "The  said  three 
carding  machines  stood  on  the 
floor  of  the  said  factory  building, 
not  nailed  to  the  floor,  nor  in  any 
manner  attached  or  annexed  to  the 
building,  unless  it  was  by  the 
leather  band,  which  passed  over 
the  wheel  or  pulley,  as  it  is  called, 
to  give  motion  to  the  machines. 
This  band  might  be  slipped  off  the 
pulley  by  hand,  and  it  was  taken 
off  and  the  machines  removed  from 
time  to  time,  when  they  were  re- 
paired. Each  machine  was  so 
heavy  as  to  require  four  men  to 
move  it  on  the  floor,  and  was  too 
large  to  be  taken  out  at  the  door; 
but  it  was  so  constructed  as  to  be 
easily  unscrewed  and  taken  in 
pieces,  and  the  machines  were  so 
taken  in  pieces  when  removed  by 
the  deputy  sheriff."  The  court  held 
that  the  machines  were  personal 
property  and  liable  to  attachment 
by  the  mortgagor's  creditor's,  the 
mortgagees  not  being  in  possession. 
The  law  of  this  case  was  questioned 
in  Kittridge  v.  Woods,  3  N.  H.  506, 
14  Am.  Dec.  393.  But  in  Baker  v. 
Davis,  supra,  it  was  held  that  card- 
ing machines,  which  were  fastened 
to  the  floor  by  nails  through  the 
legs,  and  operated  by  a  band  around 
a  drum,  in  a  room  below,  and 
through  two  holes  in  the  floor,  and 
then  around  a  wheel,  which  was  a 


2266 


THE  LAW  OF  DEEDS. 


[chap.   XXXIll. 


vey  the  joints,  buckets,  pickets,  and  faucets  not  affixed  to  the 
freehold.^  Where  tlie  deed  was  silent  on  the  subject,  bricks  in 
the  kiln  on  a  planation  were  held  in  Louisiana  not  to  pass 
to  the  purchaser  by  a  sale  of  the  land ;  and,  accordingly,  where 
the  purchaser  had  knowledge  at  the  time  the  conveyance  was 
made,  that  the  bricks  had  been  previously  sold  by  the  vendor 
to  another  person,  the  purchaser  was  held  liable  to  the  latter 
for  their  value,  for  a  conversion  of  them  to  his  own  use.^ 
The  doctrine  that  physical  annexation  is  essential  to  constitute 
an  article  a  part  of  the  realty  is  widely  disapproved,  and  in 
some  States  entirely  rejected.^ 


part  of  the  machines,  which  band 
could  not  be  taken  off  without  cut- 
ting or  ripping  it  apart,  it  being 
impossible  to  get  the  machines  out 
of  the  building,  and  a  picker,  which 
was  nailed  strongly  to  the  building 
and  operated  by  a  band,  and  a  ket- 
tle set  in  a  brick  arch,  and  a  cloth- 
ier's press,  which  was  an  iron  plate, 
fixed  in  a  brick  arch,  on  each  side 
of  which  were  two  posts,  with  a 
beam  and  screw,  framed  and  fitted 
Into  the  building,  the  press  not  be- 
ing any  more  easily  moved  than  a 
part  of  the  building,  are  fixtures, 
and  pass  by  the  extent  of  an  exe- 
cution upon  the  land." 

3  Kirwan  v.  Latour,  1  liar.  &  J. 
289,  2  Am.  Dec.  519.  In  McClin- 
tock  V.  Graham,  3  McCord.  553.  it 
was  intimated,  the  case  being  de- 
cided on  another  point,  that  a  still 
fixed  in  a  rock  furnace  built  against 
the  wall  of  a  house,  for  the  pur- 
pose of  distilling,  is  not  a  fixture 
which  would  pass  by  a  sheriff's  sale 
of  the  land;  because,  in  the  lan- 
guage of  the  court,  "it  is  suscepti- 
ble of  being  removed  without  any 
injury  whatever  to  the  freehold,  or 


any  part  thereof ;  and  even  without 
disfiguring  the  premises,  which  it 
seems  is  sometimes  made  the  cri- 
terion, and  without  digging  up  the 
soil." 

1  East  V.  Ealer,  24  La.  Ann.  129. 
See,  also,  Nimmo  v.  Allen,  2  La. 
Ann.  451 ;  Key  v.  Woolfolk,  6  Rob. 
(La.)  424. 

2  Patterson  v.  Delaware  Co.,  70 
Pa.  St.  381,  385;  Christian  v. 
Dripps,  28  Pa.  St.  271;  Seeger  v. 
Pettit,  n  Pa.  St.  437.  18  Am.  Rep. 
452;  s.  c.  Alb.  L.  J.  151;  Hill  v. 
Sewald,  53  Pa.  St.  271,  91  Am.  Dec. 
209 ;  Deal  v.  Palmer,  72  N.  C.  582 ; 
Fisher  v.  Dixon,  12  Clark  &  F.  312; 
Bryan  v.  Lawrence,  5  Jones  (N. 
C.)  Ill;  Palmer  v.  Forbes,  23  111. 
301,  313;  Latham  v.  Blakely,  70 
N.  C.  368;  Huebschmann  v.  Mc- 
Henry,  29  Wis.  655.  And  see,  Gray 
v.  Holdship,  17  Serg  &  R.  413,  17 
Am.  Dec.  680;  Cole  v.  Roach,  Zl 
Tex.  413,  419;  Hunt  v.  Bullock,  23 
111.  320;  Hoyle  v.  Plattsburg  etc.  R. 
R.  Co..  51  Barb.  62;  s.  c.  54  N.  Y. 
314,  13  Am.  Rep.  595;  :\Iinnesota 
Co.  V.  St.  Paul  Co.,  2  Wall.  609. 


CHAP.    XXXIII.]       FIXTURES   PASSING  BY   DEED.  226/ 

§  1207.     Articles    constructively    annexed.— It    is    not 

necessary,  in  order  that  a  deed  may  pass  fixtures,  that  articles 
claimed  as  such  should  be  actually  annexed  to  the  freehold. 
It  is  well  settled  that  if  they  are  constructively  annexed,  they, 
by  virtue  of  the  deed,  go  with  the  realty.     In  a  case  where 
hop-poles  which  were  taken  down  and  piled  in  the  yard,  but 
Intended   for  use  again  in  the  season  of  hop  raising,  were 
held  to  be  a  part  of  the  real  estate  and  to  pass  by  a  deed, 
Gardiner,  Chief  Justice,  said:     "The  root  of  the  hop  is  per- 
ennial, continuing  for  a  series  of  years.    That  this  root  would 
pass  to  a  purchaser  of  the  real  estate,  there  can  be  no  ques- 
Hon.     The  hop-pole  is  indispensable  to  the  proper  cultivation 
of  this  crop.     It  is  disthictly  averred  and  admitted  that  the 
poles  belonged  to  the  yard  upon  these  premises,   that  they 
were  used  for  the  purposes  of  cultivation,  and  were  removed 
from  the  place  where  they  were  set,  in  the  usual  course  of 
agriculture,  with  a  view  to  gather  the  crop,  and  without  any 
design  to  sever  them  from  the  freehold;  but,  on  the  contrary, 
with  the  purpose  of  replacing  them,  as  the  exigency  of  the 
new  growth  required.    In  a  word,  they  were  to  be  permanently 
used  upon  the  land,  and  were  necessary  for  its  proper  im- 
provement.    If  the  poles  had  been  standing  in  the  yard  at 
the  time  of  the  sale,  all  admit  that  they  would  have  formed 
a  part  of  the  realty.     But  by  being  placed  in  heaps   for  a 
temporary  purpose,  they  would  not  lose  their  distinctive  char- 
acter as  appurtenant  to  the  land,  any  more  than  rails  or  boards 
from  a  fence  in  the  same  condition  would  become  personal 
property."  '    A  conveyance  of  the  land,  it  has  been  held,  will 
carry  with  it  rough  planks  laid  down,  and  used  as  the  upper 

3  Bishop  V.  Bishop,  ll  N.  Y.    (1  attached  to  the  land.     The  cuUiva- 

Kern  )    123    124    62  Am.   Dec.  68.  tor  provides  himself  with  a  supply 

Denio   J.,  dissented,  and  in  his  dis-  |bf  them,  and  when  the  root  of  the 

senting  opinion  remarked:  "We  are  hop,     which     is     perennial,     shoots 

allowed    to    know    judicially    what  forth  in  the  spring,  these  poles  are 

every  person  out  of   court  knows,  set  up  perpendicularly  in  the  earth 

that  hop-poles  are  not  permanently  for    the     vine    to    entwme     itself 


2268 


THE  LAW  OF  DEEDS. 


[chap,  xxxni. 


floor  of  a  gin-house.*  In  a  case  In  Vermont  there  were  double 
windows  made  for  a  house,  and  fitted  to  its  window  casings. 
They,  however,  were  not  nailed  or  fastened,  but  were  held 
in  place  by  being  closely  fitted  and  pushed  in,  in  which  con- 
dition they  remained  through  one  winter,  and  in  summer 
were  taken  out  and  placed  in  another  portion  of  the  house; 
there  were  also  blinds  intended  for  sidelights,  and  set  up 
in  the  hall,  but  never  fitted  to  the  windows  or  put  in.  It  was 
not  the  intention  of  the  grantor  that  either  the  windows  or 
blinds  should  pass  with  the  house,  but  he  secreted  them,  so 


around.    When  the  crop  is  mature, 
the     poles     are     taken     down     and 
stripped  of   their  burthen,   and   set 
up   in  stacks,   to  be  again   used   in 
the    same    manner    the    next    year. 
The    question    is,    whether-   this    is 
such  an  affixing  to  the  land,  as  to 
change  the  character  of  the  poles 
from    that    of    personal    property, 
which  they  bore  when  brought  into 
the  field,  into  real  estate.     To  con- 
vert    personal     chattels     into     real 
property     by     force     of     the     law 
of     the     fixtures,    there    must,     in 
general,  be  a  permanent  corporeal 
annexation    of    the    chattel    to    the 
land,  or  to  something  which  is  it- 
self annexed  to  the  land.     Without 
going   over   the   cases,   which   %?ere 
numerous,  and  were  elaborately  re- 
viewed by  the  late  Justice  Cowen, 
in    giving   the    opinion    of    the    su- 
preme court  in  Walker  v.  Sherman, 
20  Wend.  636,  I  am  satisfied  with 
the  conclusion  at  which  that  court 
arrived,   that   nothing   of   a   nature 
personal    in    itself    will    pass    by    a 
conveyance   of    the    land,    unless   it 
be  brought  within  the  denomination 
of  a  fixture  by  being  in  some  w\iy 
permanently,  at  least  habitually,  at- 


tached to  the  land,  or  some  build- 
ing upon  it."  Fixtures  which  have 
been  constructively  severed  from 
the  freehold,  but  their  physical  an- 
nexation permitted  are  construc- 
tively reannexed  to  the  freehold  by 
a  conveyance  of  the  realty  in  which 
the  fixtures  are  not  referred  to 
either  by  way  of  transfer  or  of 
reservation.  Solomon  v.  Staiger, 
48  Atl.  996,  65  N.  J.  L.  617. 

*  Br>'an  v.  Lawrence,  5  Jones 
(N.  C.)  337.  As  to  doors  and 
windows,  see  State  v.  Elliott,  11 
N.  H.  540;  Pcttengill  v.  Evans,  5 
N.  H.  54.  Rails  and  fences  are 
fixtures,  and  pass  with  the  land : 
Mitchell  V.  Billingsley,  17  Ala.  391 ; 
Seymour  v.  Watson,  5  Blackf.  555, 
36  Am.  Dec.  556;  Sawyer  v.  Twiss, 
26  N.  H.  348;  Burelson  v.  Teeple,  2 
Greene,  G.  542;  Glidden  v.  Bennett, 
43  N.  H.  306.  See,  also,  Collins  v. 
Bartlett,  44  Cal.  371;  Patton  v. 
Moore,  16  W.  Va.  428,  37  Am.  Rep. 
789;  Goodrich  v.  Jones,  2  Hill,  142; 
Smith  v.  Odom,  63  Ga.  499;  Climer 
v.  Wallace,  28  Mo.  556,  75  Am.  Dec. 
135.  But  see  Pennybecker  v.  Mc- 
Dougal,  48  Cal.  160. 


CHAP.    XXXIII,]       FIXTURES  PASSING  BY  DEED. 


2269 


that  the  grantee  had  no  knowledge  of  their  existence  at  the 
time  of  the  sale,  and  there  were  no  indications  about  the 
casings  that  any  double  windows  belonged  to  them.  The 
court  held  that,  as  the  windows  and  blinds  were  never  actually 
or  constructively  annexed  to  the  house,  they  did  not  pass  by 
a  deed  of  the  realty.*     Unattached  scantling,  which,  at  the 


5  Peck  V.  Batchelder,  40  Vt.  233. 
94  Am.  Dec.  392.  Wilson,  J.,  in  de- 
livering the  opinion  of  the  court, 
remarked:  "In  order  to  entitle  the 
plaintiff  to  recover,  it  was  incum- 
bent on  him  to  show  that  the  win- 
dows or  blinds  had  become,  and 
were,  a  part  of  the  building  con- 
veyed to  him  by  the  defendant. 
.  .  .  It  appears  the  defendant 
owned  the  blinds  and  windows  in 
question  at  the  time  he  conveyed 
the  house  to  the  plaintiff;  and  if 
they  had  become,  and  were  at  that 
time,  a  part  of  the  house  conveyed, 
the  fact  that  the  defendant  secreted 
them  previous  to  the  conveyance, 
or  that  the  plaintiff  had,  at  the  time 
of  the  conveyance,  no  knowledge 
of  their  existence,  would  not  defeat 
the  plaintiff's  right  to  the  property. 
In  the  construction  of  a  building, 
its  doors,  windows,  blinds,  shut- 
ters, etc.,  become  a  part  of  the 
building,  and  the  manner  of  annex- 
ation is  of  no  particular  import- 
ance. There  must  be  actual  or  con- 
structive annexation  in  order  to 
make  them  a  part  of  the  building. 
At  the  time  the  defendant  conveyed 
to  the  plaintiff,  the  building  had  in 
it  all  the  windows  it  was  construct- 
ed with  or  for,  and  the  mere  fact 
that  the  defendant  had  made  some 
sash,  painted  them,  and  set  glass  in 
them,  intending  to  use  them  at 
some  future  time,  in  the  construc- 


tion of  double  windows  for  the 
house,  does  not  constitute  even  con- 
structive annexation.  In  order  to 
make  such  windows  a  part  of  the 
realty,  they  must  have  been  so 
annexed  or  attached  to,  or  used 
upon  the  building,  as  to  indicate 
that  the  owner  intended  by  such 
annexation  or  use  to  make  them  a 
part  of  the  building.  The  window 
frames  and  casings  of  the  house 
were  not  constructed  for  double 
windows,  and  the  referee  has  not 
found  that  the  defendant  had  pre- 
pared even  the  ordinary  stops  by 
which  double  windows  could  have 
been  permanently  attached  to  the 
house,  or  securely  kept  in  place. 
It  is  evident  from  the  manner  in 
which  these  windows  were  put  in 
that,  if  they  had  been  taken  out 
and  put  back  a  few  times  they 
would  have  become  loose  and  have 
fallen  off,  unless  they  had  been 
in  some  way  fastened  to  the  build- 
ing. The  very  manner  in  which 
the  defendant  put  these  windows 
in,  and  temporarily  used  them, 
shows  that  he  did  not  intend,  by 
such  act  or  use,  to  make  them  a 
part  of  the  building.  The  referee 
finds  that  the  defendant  did  not 
intend  these  windows  or  blinds 
should  pass  with  the  house.  The 
plaintiff,  in  tlie  purchase  of  the 
house,  was  not  deceived  in  respect 
to  the  windows  or  blinds.     There 


\ 


2270 


THE  LAW  OF  DEEDS. 


[chap,  xxxni. 


time  of  the  execution  of  the  deed  was  partly  piled  up  in  the 
barn,  and  partly  used  as  a  scaffolding  for  straw,  and  which 
had  been  used  to  hang  tobacco  on  for  curing,  in  bam  erected 
on  a  farm  where  tobacco  had  been  cultivated,  the  scanthng 
being  put  up  and  taken  down  as  the  drying  of  the  tobacco 
required,  it  was  held,  did  not  pass  as  fixtures  by  a  deed  of  the 
farm.^  It  is  not  necessary  that  machinery  should  be  actually 
annexed  to  the  freehold  to  pass  by  a  deed  of  the  latter.  If 
it  is  a  constituent  part  of  the  manufactory,  adapted  to  the 
purposes  for  which  the  building  was  erected,  it  will  pass 
by  a  deed  of  the  freehold  although  not  actually  fastened  to 
it.'  In  fact,  all  articles  which  are  constructively  annexed  to 
the  freehold',  though  they  may  not  be  actually  annexed  such 


was    nothing    upon   the    house,    or 
windows   attached   to  it,   indicating 
that  double  windows  or  bhnds  had 
been   attached   to   the   building,    or 
that  such  windows   and  blinds  be- 
longed to  the  house.     The  plaintiff, 
at  the  time  of  the  conveyance,  had 
no  knowledge  or  information  that 
double  windows  or  blinds  had  been 
attached  to  the  building,   or  made 
for  that  purpose;   there   is,   there- 
fore, no  ground  to  claim  that  the 
price  paid  for  the  property  was  in 
any  way  affected  in  faith  of  double 
windows  or  blinds."    But  see  Rahni 
V.  Domayer,  137  Iowa,  18,  15  L.R.A. 
(N.S.)   727,  114  N.  W.  546,  where 
it   was   held   that  finishing  lumber, 
doors    and    transoms   placed    in   an 
unfinished  building  for  the  purpose 
of    completing    it    passed    with    o 
deed  to  the  land  although  the  ma- 
terials  were   only   annexed  thereto 
by  their   location    and    weight. 
eNoyes  v.  Terry,  1  Lans.  219. 
7  Voorhis  v.  Freeman,  2  Watts  & 
S.  116,  37  Am.  Dec.  490.     See.  also, 
as  to  other   cases  of   constructive 


annexation.    Metropolitan    etc.    So- 
ciety V.  Brown,  26  Beav.  454;  Pyle 
V.   Pennock,  2  Watts  &  S.  390,  37 
Am.   Dec.   517;   Ex  parte  Aslbury, 
Law  R.  4  Ch.  630;   Place  v.  Fagg, 
4    Man.    &    R.    277;    Walmsley    v. 
Milne,  7  Com.  B.,  N.  S.,  115;  John- 
son V.  Mehaffey,  43  Pa.  St.  308,  82 
Am.   Dec.   568;   Burnside  v.   Twit- 
chcll,  43  N.  H.  390;  Cole  v.  Roach. 
37  Tex.  413;  Rufford  v.  Bishop.  5 
Russ.   346;   s.   c.   Law   J.   Ch.    108, 
114;  Conklin  v.   Parsons,  1  Chand. 
240;   s.   c.  2   Pinn.   264;    Ripley   v. 
Paige,    12    Vt.    353.      In   Ropps   v. 
Barker,   4    Pick.    238,    it    was    held 
that  if  A  grants  a  part  of  a  lot  to 
B,  bounding  such  part  on  a  straight 
line,  between  two  monuments,  tak- 
ing a  stipulation  that  a  fence  stand- 
ing partly  on  the  line  and  partly  on 
the  land  conveyed  shall  remain  the 
property  of  the  grantor,  and  if  A 
subsequently  grants  the  rest  of  the 
lot  to  C,  bounding  it  on  the  same 
straight  line,  no  right  passes  to  C  in 
that  part  of  the  fence  which  stood 
on  the  land  of  B. 


CHAP,    XXSIII.]       FIXTURES  PASSING  BY  DEED.  2271 

as  keys,  doors,  and  windows,  pass  by  the  deed.'  The  general 
principle  seems  to  be  that  all  articles  that  may  properly  be 
considered  as  belonging  to  the  real  estate,  necessary  to  its 
use  and  enjoyment,  whether  firmly  fixed  or  temporarily  de- 
tached, or  from  their  nature  only  constructively  annexed,  pass 
by  a  deed  of  the  land. 

§  1208.  Machinery  in  mills. — Upon  the  question  wheth- 
er machinery  in  mills  will  pass  by  a  deed  of  the  premises, 
there  is  perhaps  an  irreconcilable  conflict  in  the  authorities. 
The  law  may  be  stated  with  a  reasonable  degree  of  certainty 
up  to  a  certain  point,  and  then,  beyond  that,  all  becomes  con- 
fusion.^ In  accordance  with  the  general  rule,  that,  as  be- 
tween grantor  and  grantee,  the  firm  and  substantial  annexation 
to  the  freehold  by  the  owner  of  articles  intended  for  the  use 
of  the  realty  and  requisite  to  its  enjoyment,  constitutes  them 
fixtures,  which  pass  by  a  conveyance  of  the  land,  it  is  generally 
agreed  that  machinery  which  is  permanently  attached  to  the 
realty,  such  as  boilers,  steam-engines,  and  gearing,  are  parcels 
of  the  realty,  and  will  pass  to  the  purchaser  by  a  deed  of  the 

As  to  whether  a  ferryboat,  chain,  40  Vt.  233,  94  Am.  Dec.  392;  Li- 

and  bnoji?  are  fixtures,  see  Cowart  ford's  Case,  11  Co.  Rep.  50b;  Place 

V.  Cowan,  3  Lea  (Tenn.),  57.  v.  Fagg,  4  Man.  &  R.  277,  7  Law 

sPetengill  v.  Evans,  5  N.  H.  54;  J.  K.  B.  195;  Wood  v.  Bell,  6  El. 

Mitchell  V.  Billingsley,  17  Ala.  391 ;  &   B.   355 ;   Bryan   v.   Lawrence,   5 

Seymour  v.  Watson,  5  Blackf.  555,  Jones  (N.  C.)  337;  Bishop  v.  Bish- 

36  Am.  Dec.  556;  State  v.  Elliott,  op,  11  N.  Y.  123,  62  Am.  Dec.  68; 
11  N.  H.  540.  And  see,  also,  Goodrich  v.  Jones,  2  Hill,  142; 
Walmsley  v.  Milne,  7  Com.  B.,  N.  Glidden  v.  Bennett,  43  N.  H.  306. 
S.,  115,  6  Jur.  N.  S.,  125,  29  Law  »  Sweetzer  v.  Jones,  35  Vt.  317,  82 
J.  Com.  P.  97,  1  Law  T.,  N.  S.  62,  Am.  Dec.  639;  Green  v.  Phillips, 
8  Am.  Law  Reg.  373;  Burleson  v.  26  Gratt.  752,  21  Am.  Rep.  323; 
Teeple,  2  Greene,  G.  540;  Sawyer  Brennan  v.  Whitaker,  15  Ohio  St. 
V.  Twiss,  26  N.  H.  34S;  Conklin  v.  446;  Crane  v.  Brigham,  11  N.  J.  Eq. 
Parsons,  1  Chand.  240,  2  Pinn.  264;  29,  36;  Climie  v.  Wood,  Law  R.  3 
Ripley  v.  Paige,  12  Vt.  353;  Voor-  Ex.  257;  s.  c.  Law  R.  4  Ex.  328; 
his  V.  Freeman,  2  Watts  &  S.  116,  Sands  v.  Pfeiffer,  10  Cal.  258.     See 

37  Am.  Dec.  490;  Society  v.  Brown,  AIcKiernan  v.  Hesse,  51  Cal.  594; 
26  Beav.  454;   Peck  v.  Batchelder,       Taylor  v.  Collins,  51  Wis.  123. 


2272 


THE  LAW  OF  DEEDS. 


[chap,  xxxni. 


land.^  This  question  frequently  arises  between  mortgagor 
and  mortgagee.  In  these  cases,  as  we  have  seen,  the  same 
rules  apply  as  would  if  the  controversy  were  between  vendor 
and  vendee. 

§  1209.  Removal  without  injury. — A  distinction  is 
sometimes  made  between  the  fixtures  placed  in  a  mill  which 
are  indispensable  to  its  operation  as  such,  and  those  which 
are  used  temporarily  or  for  particular  classes  of  work.  The 
former  may  pass  by  a  conveyance  or  mortgage  where  the  lat- 
ter would  not.*    In  some  courts  the  rule  has  been  announced 


1  Longbottom  v.  Berry,  Law  R.  5 
Q.  B.  123;  s.  c.  39  Law  J.,  N.  S., 
Q.  B.  37,  45;  Roberts  v.  Dauphin 
etc.  Bank,  19  Pa.  St.  71;  McKim 
V.  Mason,  3  Md.  Ch.  186;  Allison 
V.  McCiine,  15  Ohio,  726,  45  Am. 
Dec.  605;  Teaff  v.  Hewitt,  1  Ohio 
St.  511,  59  Am.  Dec.  634;  Harris  v. 
Haynes,  34  Vt.  220;  Oves  v.  Ogles- 
by,  7  Watts,  106;  Sparks  v.  State 
Bank,  7  Blackf.  469;  In  re  McKib- 
bin,  4  Ir.  Ch.  520.  See  March  v. 
McKoy,  56  Cal.  85 ;  Lyle  v.  Palmer, 
42  Mich.  314;  Helm  v.  Gilroy,  20 
Or.  517;  Southbridge  Savings  Bank 
V.  Gibson,  147  Mass.  500,  1  L.R.A. 
350;  Hopewell  Mills  v.  Taunton 
Sav.  Bank,  150  Mass.  519,  6  L.R.A. 
249,  15  Am.  St.  Rep.  235 ;  Farmers' 
Loan  &  T.  Co.  v.  Minneapolis  En- 
gine Works,  35  Minn.  543;  Lyle  v. 
Palmer,  42  Mich.  314;  McFadden  v. 
Crawford,  36  W.  Va.  671,  32  Am. 
St.  Rep.  894;  Morris'  Appeal,  88 
Pa.  St.  368;  Roddy  v.  Brick,  42  N. 
J.  Eq.  218;  Green  v.  Phillips,  26 
Gratt.  752,  21  Am.  Rep.  523 ;  Patton 
V.  Moore,  16  W.  Va.  428,  37  Am. 
Rep.  789;  Langdon  v.  Buchanan,  62 
N.  H.  657;   Stillman  v.  Flenniken, 


58  Iowa,  450,  43  Am.  Rep.  120; 
Brigham  v.  Overstreet,  128  Ga.  447, 
10  L.R.A.  (N.S.)  452,  57  S.  E. 
484;  Peoples  Nat.  Bank,  14  Colo. 
App.  21,  59  Pac.  63. 

2  Morris'  Appeal,  88  Pa.  St.  368 
Keeler  v.  Keeler,  31  N.  J.  Eq.  181 
Farrar  v.  ChaufFetete,  5  Denio,  527 
Ferris  v.  Quimby,  41  Mich.  202 
Smith  Paper  Co.  v.  Servin,  130 
Mass.  511;  Shelton  v.  Ficklin,  32 
Gratt.  727;  Robertson  v.  Corsett,  39 
Mich,  m-,  McConnell  v.  Blood, 
123  Mass.  47,  25  Am.  Rep.  12; 
Southbridge  etc.  Bank  v.  Exeter 
Machine  Works,  127  Mass.  542; 
Taylor  v.  Collins,  51  Wis.  123; 
McFadden  v.  Crawford,  36  W.  Va. 
671,  32  Am.  St.  Rep.  894;  Green 
V.  Phillips,  26  Gratt.  752,  21  Am. 
Rep.  323;  Patton  v.  More,  16  W. 
Va.  428,  37  Am.  Rep.  789;  Roddy 
V.  Brick,  42  N.  J.  Eq.  218;  Ottum- 
wa  Woolen  Mill  Co.  v.  Hawley,  44 
Iowa,  57,  24  Am.  Rep.  719;  Lang- 
don V.  Buchanan,  62  N.  H.  257; 
Hill  V.  National  Bank,  97  U.  S.  450. 
24  L.  ed.  1051;  Calumet  Iron  & 
Steel  Co.  V.  Lathrop,  36  111.  App. 
249. 


CHAP.    XXXIII.]      FIXTURES  PASSING  BY  DEED.  2273 

that  when  an  article  can  be  removed  without  material  damage 
to^  the  freehold  or  the  article  itself,  it  is  a  chattel,  and  if 
this  is  not  capable  of  being  done  it  is  a  fixture.    "The  rule  of 
the  common  law,  as  we  understand  and  adopt  it,   may  be 
summed  up  in  a  single  sentence,  and  it  is  this:  Wherever 
the  article  can  be  removed  without  essential  injury  to  the 
freehold  or  the  article  itself,  it  is  a  chattel;  otherwise,  it  is  a 
fixture.     This  rule  is  recommended  by  its  simplicity  and  de- 
finiteness.     Depart  from  it,  and  we  are  at  sea,  without  chart 
or  compass.     This  rule,  of  course,  may  be  controlled  by  the 
agreement  of  the  parties,  as  well  as  by  established  usage  or 
custom.     And  most  of  the  exceptional  cases  to  the  foregoing 
rule,  and  which  seem  to  conflict  with  it,  will  be   found  to 
arrange  themselves  under  one  of  these  heads."  «    The  owner 
of  a  sash  and  blind   factory  purchased  a  molding  machine 
and  a  planing  machine,  placing  them  on  the  main  floor  of 
the  building;  for  greater  firmness  one  was  bolted  to  the  floor; 
and  the  weight  of  the  other  was  sufficient  to  cause  it  to  stand 
without   fastening;  he   executed   a   mortgage   upon  the   real 
estate,  including  the  building  containing  the  machines,  and  sub- 
sequently executed  a  chattel  mortgage  upon  the  machines ;  the 
machines  were  held  not  to  be  fixtures  which  the  mortgage  upon 
the  realty  covered,  but  chattels  embraced  by  the  chattel  mort- 
gage.     Mr.   Justice   Knapp   observed:   "They   had   no   such 
attachment  or  physical  annexation  to  the  freehold,  or  any- 
thing appurtenant  to  the  lands,  as  could  impart  to  them  the 
character  of  real  estate;  nor  is  there  any  evidence  in  the  case 
of  an  intention  of  the  parties  to  join  them  permanently  to 
the  freehold.     They  stood  upon  the  floor  of  the  building,  in 

3  Wade  V.  Johnston,  25  Ga.  331,  lam  v.  Stearns,  30  Vt.  443;  Sweet- 

33t,  per  Lumpkin,  J.,  delivering  the  zer  v.  Jones,   35   Vt    317    8^  Am 

opmion  of   the  court.     See   Harris  Dec.  639;  Bartlett  v.  Wood  "si  Vt' 

V.    Haynes,    34    Vt.    220;    Hunt    v.  372;   Neufelder  v.   Third    St    &  s" 

Midlanphy,      Mo.  508,  14  Am.  Dec.  Ry.   Co.,  23  Wash.  470,  53  L.R  a" 

300;  Hdl  v^Wentworth,  28  Vt.  428;  600,  63   Pac.  97.  83  Am.   St    Rep 

Graves  v.  Pierce,  53  Mo.  429;  Ful-  831.  ' 

I>eeds,  Val.  II. — 143. 


2274  "HE  LAW  OF  DEEDS.  [CHAP.    XXXIII. 

which  they  were  used,  without  any  other  support,  and  without 
any  manner  of  fastening  to  the  floor,  walls,  or  other  part  of 
the  building,  except  that  one  being  lighter  than  the  other, 
was  partially  secured  to  the  floor  by  screw  bolts;  and  as  to 
that,  the  evidence  fully  justifies  the  conclusion  of  the  vice- 
chancellor,  that  the  bolts  placed  in  the  soles  of  that  machine 
were  put  there  solely  for  convenience  in  its  use,  to  render 
it  more  steady  when  in  motion.     The  belts  which  were  run 
between  the  fixed  shafting  and  the  machines  were  only  for 
the  purpose  of  communicating  with  the  driving  power  and 
giving   motion;   their  office   is   not,   nor  can   tliey   serve   to 
annex  and  fix  the  machines  to  the  real  estate.     It  is  true, 
that  if  the  chattel  is  actually  affixed  to  the  realty,  the  strength 
and  force  of  the  union  is  of  little  consequence  in  determining 
its  character  as  a  fixture,  but  to  create  it  a  fixture,  there  must 
be  annexation,  and  the  connection  must  be  such  as  is  con- 
sistent with  the  suggestive  of  an  intent  permanently  to  an- 
nex it  to  the  freehold.     .     .     .     There  appears  to  have  been 
no  special  adaptation  of  this  machinery  to  the  place  where  used, 
nor  any  preparation  of  the  place  to  receive  them.     They  were 
suitable  and  proper  to  be  there,  if  such  instruments  were  re- 
quired for  their  appropriate  work,  but  equally  suitable  and 
useful  elsewhere.     They  were  movable  in  the  building,  and 
were  moved  about  at  the  convenience  of  the  owner,  and  run 
from  different  parts  of  the  shafting.     They  were  made  and 
designed,   not   for  this  place,   or  any  particular   place;   they 
were  constructed  after  fixed  patterns,  for  all  purchasers;  things 
in  gross;  mere  implements;  heavy  and  complicated  tools.     If 
they  ceased  to  be  used  in  this  factory,  they  were  movable 
without  alteration,  without  detriment  to  the  building,  and  could 
be  used  equally  well  in  another  place  provided  with  power 
to  drive  them."  * 


*Blancke  v.  Rogers,  26  N.  J.  Eq.  Stewt.)  181,  the  court  say  (p.  190)  : 
(11  Green,  C.  E.)  563,  568.  In  "The  machinery  and  apparatus  for 
Keeler  v.  Keeler,  31  N.  J.  Eq.   (4       furnishing  motive  power,  light,  and 


CHAP.    XXXIII.]       FIXTURES  PASSING  BY   DEED. 


2275 


§  1210.  Comments. — While  some  courts  recognize  the 
test  of  removal  without  injury  as  being  the  proper  one,  the 
doctrine  is  not  sustained  by  the  great  weight  of  recent  au- 


warmth  to  the  buildings,  are  in  this 
case  part  of  the  realty.  The  steam- 
engine  is  securely  and  permanently 
bolted  to  a  foundation  set  eight  or 
ten  feet  deep  in  the  ground,  and  it 
was  put  in  for  permanent  use.  It, 
with  its  appurtenances,  is  part  of 
the  realty,  and  so  are  the  boilers 
which  are  a  necessary  adjunct  to 
it,  also  the  shafting,  belting,  coup- 
lings, and  pulleys  to  communicate 
the  power,  and  also  the  waterwheels 
and  waterwheel  governor :  Crane  v. 
Brigham,  3  Stockt.  Ch.  29;  Quinby 
V.  Manhattan  Cloth  Co.,  9  Green, 
C.  E.  260;  Keve  v.  Paxton,  11 
Green,  C  E.  107;  Fish  v.  Water- 
proof Paper  Co.,  2  Stewt,  16;  s.  c. 
on  appeal,  sub  nom.  McMillan  v. 
Fish,  2  Stewt.  610;  Watson  v.  Wat- 
son Mfg.  Co.,  3  Stewt.  483.  The 
apparatus  for  the  manufacture  of 
gas  (called  a  generator),  is  situated 
in  a  pit  made  expressly  for  it  in 
a  small  building  built  for  it  a  short 
distance  from  the  main  building. 
It  is  connected  with  a  gas-pump 
in  the  building,  and  the  pipes  are 
attached  to  the  beams  and  girders 
by  hooks,  and  in  some  places  pass 
through  holes  in  the  side  walls 
bored  for  the  purpose.  The  gener- 
ator and  its  appurtenances  and  the 
pipes  are  fixtures :  Hays  v.  Doane, 
3  Stockt.  Ch.  84,  96;  Ewell  on  Fix- 
tures, 299;  Regina  v.  Lee,  Law  R. 
1  Q.  B.  242.  The  gasburners  are  of 
the  same  character  in  this  case, 
They  are  in  no  sense  furniture,  but 
are  mere  accessories  to  the  mill : 
Sewell  V.  Angerstein,   18  L.  T.  N. 


S.,  300.  Some  of  the  heating  pipes 
are  laid  on  hooks  attached  to 
boards  which  are  fastened  to  the 
walls.  They  may  be  removed  with- 
out disturbing  the  boards  or  hooks. 
In  one  place  there  are  two  nests  of 
piping  which  rest  on  the  floor  with- 
out being  attached  to  it.  Such 
pipes  so  attached  for  heating  pur- 
poses were,  under  like  circum- 
stances, held  to  be  fixtures  in 
Quinby  v.  Manhattan  Cloth  Co.,  9 
Green,  C.  E.  260.  See,  also,  Phill- 
brick  V.  Ewing,  97  Mass.  133,  and 
Stockwell  V.  Campbell,  39  Conn. 
362,  12  Am.  Rep.  393.  Those  which 
rest  on  the  floor  are  not  to  be  ex- 
cepted under  the  circumstances. 
They  are  part  of  the  system  of  pip- 
ing in  the  building.  The  rest  of 
the  property  mentioned  in  the  com- 
plainant's mortgages  is  personal. 
The  Danforth  cap  spinning-frames, 
Danforth  cap  twisting-frames,  the 
ring  and  traveler  twisting-frames, 
balling  machines,  carding  machines, 
grinding  machines,  drawing  frames  ; 
Higgins  or  jack  fly-frames,  Hig- 
gin's  slubber,  counter  twist-speed- 
ers, mules,  and  other  machines, 
though  most  of  them  are  fastened 
to  the  floor  by  nails  or  screws,  or 
held  in  position  by  cleats,  are  per- 
sonal property.  They  are  annexed 
merely  to  keep  them  in  position; 
some  of  them  could  not  be  operated 
unless  held  firmly  in  place.  Though, 
in  putting  down  a  new  floor,  it 
was  laid  down  around  the  feet  and 
standards  of  the  machines,  it  was 
not  laid  over  but  only  up  to  them." 


2276  THE  LAW  OF  DEEDS.  [CHAP.    XXXlIL 

thority.  As  has  been  repeatedly  said,  it  is  impossible  to  lay 
down  any  rule  with  which  cases  may  not  be  found  in  con- 
flict, but  it  is  believed  that  the  correct  rule  is  stated  with  as 
great  certainty  as  the  nature  of  the  subject  admits  in  the  fol- 
lowing section. 

§  1211.  Proper  test  for  considering  machinery  as 
fixtures. — Perhaps  the  only  rule  that  can  be  evolved  from 
the  mass  of  conflicting  decisions  is,  that  whether  an  article 
is  a  fixture  or  not  must  depend  upon  the  combination  of 
several  tests,  any  one  of  which  alone  is  not  conclusive.  In  a 
case  which  is  frequently  cited,  Chief  Justice  Bartlett  says: 
"From  the  examination  which  I  have  been  enabled  to  give 
to  this  subject,  and  after  a  careful  review  of  the  authorities, 
I  have  reached  the  conclusion  that  the  united  application  of  tlie 
following  requisites  will  be  found  the  safest  criterion  of  a 
fixture.  (1)  Actual  annexation  to  the  realty,  or  something 
appurtenant  thereto.  (2)  Appropriation  to  the  use  or  pur- 
pose of  that  part  of  the  realty  with  which  it  is  connected. 
(3)  The  intention  of  the  party  making  the  annexation,  to 
make  the  article  a  permanent  accession  to  the  freehold,  this 
intention  bei4ig  inferred  from  the  nature  of  the  article  afiixed, 
the  relation  and  situation  of  the  party  making  the  annexation, 
and  the  purpose  or  use  for  which  the  annexation  has  been 
made.  This  criterion  furnishes  a  test  of  general  and  uniform 
application ;  one  by  which  the  essential  qualities  of  a  fixture 
can,  in  most  instances,  be  certainly  and  easily  ascertained,  and 
tends  to  harmonize  the  apparent  conflict  in  the  authorities 
relating  to  the  subject.     It  may  be  found  inconsistent  with 

The  machinery  used  in  a  canning  economy  only,  and  not  from  neces- 

business  is  considered  a  fixture,  and  sity   and    whicli   could   be   removed 

will    pass    by    deed    or    mortgage:  without  injury  to  the  building,  are 

Dudley  V.  Hurst,  67  Md.  44,  1  Am.  held  not  to  be  a  part  of  the  realty 

St  Rep.  368.    Dynamo  and  engines  in  New  York  Life  Ins.  Co.  v.  AUi- 

for  driving  the  dynamo  installed  in  son,  107  Fed.  179. 
a  building   from  considerations  of 


CHAP.    XXXIII.]       FIXTURES   PASSING  BY  DEED.  2277 

the  reasoning  and  distinctions  in  many  of  the  cases;  but  it  is 
believed  to  be  at  variance  with  the  conckision  in  but  few  of 
the  well-considered  adjudications."  ^  The  presumption  in 
case  of  doubt  is,  that  as  the  interest  of  the  vendor  of  real 
estate  is  permanent,  all  annexations  that  he  has  made  are  for 
his  prolonged  enjoyment,  and  for  the  substantial  and  con- 
tinued enchancement  in  value  of  the  property.^ 

§  1212.  Value  added  to  realty. — The  course  adopted 
by  the  majority  of  the  decisions  is  to  consider  everything 
which  has  been  attached  to  the  realty  for  the  purpose  of 
adding  to  its  value,  a  fixture  passing  with  a  conveyance  of 
the  land.'  "Great  diversity  exists  in  the  adjudications  on 
this  subject,  and  few  decisions  can  be  considered  as  abso- 
lute authorities  in  other  instances,  even  of  fixtures  of  a  sim- 
ilar denomination.  It  will  be  found,  on  an  examination  of 
the  books,  that  considerations  of  custom,  intention,  ornament, 
convenience,  and  so  forth,  have  all  had  influence  in  controllng 
the  cases.  Whilst  it  has  been  held  that  chattels  should  not  be 
regarded  as  fixtures,  unless  they  are  so  far  incorporated  with 
the  structure  of  which  they  form  a  part  that  they  cannot 
be  severed  from  it  without  injuring  the  structure  itself,  as 
in  Farrar  v.  Chauffetete,*  yet  the  general  course  of  decision 
is  in  favor  of  viewing  everything  as  a  fixture  which  has  been 
attached  to  the  realty,  with  a  view  to  the  purpose  for  which 
it  is  employed  or  held,  however  slight  or  temporary  the  con- 

6  In  Teaff  v.  Hewitt,  1  Ohio  St.  6  Tiff ^  y.   Horton,  53  N.   Y.  ZIT , 

511,    530,    59   Am.    Dec.    634.     See  38Z    13   Am.    Rep.   537;    Potter   v! 

State  Security  Bank  V.  Haskins,  130  Cromwell,  40  N.  Y.,  287,   100  Am 

Iowa,  119,  8  L.R.A.(N.S.)  376,  106  Dec.  485. 

N.   W.   764;   also,   In   re   Goldville  "^^  Johnson    v.    Wiseman,    4    Met 

Mfg.  Co.,  118  Fed.  892,  affirmed  in  (Ky.)  357,  83  Am.  Dec.  475;  Crane 

William  Firth  Co.  v.  South  Caro-  v.  Brigham,  11  N.  J.  Eq.  29;  Philip- 

lina  Loon  &  T.  Co.,  122  Fed.  569;  son  v.  Mullanphy,  1  Mo.  620. 

The  Atlantic  Safe  Deposit  &  Trust  8  5  Denio,  527. 
Co.  V.  Atlantic   City  Laundry   Co., 
64  N.  J.  Eq.  140,  53  Atl.  212. 


2278 


THE  LAW  OF  DEEDS. 


[chap.    XXXIII. 


nection  between  them.  In  accordance  with  this  rule,  it  has 
been  held  repeatedly  that  the  machinery  of  a  manufactory  is 
to  be  regarded  as  a  part  of  the  realty,  whether  it  is  attached 
to  the  body  of  the  building,  or  merely  connected  with  the 
other  machinery  by  running  bands  or  gearing  which  may  be 
thrown  off  at  pleasure,  and  without  injury  to  the  freehold.  In 
general,  it  may  be  said  that,  as  between  vendor  and  vendee, 
the  purchaser  is  clearly  entitled  to  everything  that  has  been 
annexed  to  the  freehold  with  a  view  of  increasing  its  value,  or 
adapting  it  to  the  purposes  for  which  it  is  used;  and  within 
this  principle  it  has  been  held  that  pipes  and  bathtubs  of  a 
dwelling,  the  counters  of  a  store,  the  vats,  stills,  and  kettles 
of  a  brewery  or  distillery,  are  fixtures."  '    A  vendor's  lien  for 


9  Rogers  v.  Crow,  40  Mo.  91,  95, 
93  Am.  Dec.  299,  per  Wagner,  J., 
citing  Walmsley  v.  Milne,  7  Com. 
B.,  N.  S.  115;  Wilde  v.  Waters,  16 
Com.  B.  637;  Cohen  v.  Kyler,  27 
Mo.  122;  Tabor  v.  Robinson,  36 
Barb.  485;  Man  v.  Schwarzwalder, 
4  Smith,  E.  D.  273 ;  Bryan  v.  Law- 
rence, 5  Jones,  337;  Johnston  v. 
Philadelphia  Mortgage  &  Trust  Co., 
129  Ala.  575,  30  So.  515,  87  Am.  St. 
Rep.  75.  In  Johnson  v.  Wiseman, 
4  Met.  (Ky.)  357,  83  Am.  Dec.475. 
Peters,  J.,  delivering  the  opinion  of 
the  court,  says  (p.  360)  :  "There 
can  be  no  doubt  that  upon  the 
sale  of  the  freehold,  fixtures  will 
pass  in  the  absence  of  any  express 
provision  to  the  contrary.  It  has 
been  held  in  some  cases  that  to 
give  chattels  the  character  of  fix- 
tures, and  deprive  them  of  that  of 
personalty,  they  must  be  so  firmly 
fixed  to  the  realty  that  they  cannot 
be  removed  without  injury  to  the 
freehold  from  the  act  of  removal, 
and  apart  from  the  subtraction  of 
the  thing  removed;  but  the  better 


opinion  is,  however,  the  other  way, 
and  in  favor  of  viewing  everything 
as  a  fixture  which  has  been  at- 
tached to  the  realty,  with  a  view  to 
the  purposes  for  which  it  is  held  or 
employed,  however  slight  or  tem- 
porary the  connection  between 
them.  It  has  accordingly  been  de- 
cided in  a  great  number  of  cases, 
that  the  machinery  of  a  manufac- 
tory is  to  be  regarded  as  a  part  of 
the  realty,  whether  it  be  attached  to 
body  of  the  building,  or  merely 
connected  with  the  other  machinery 
by  running  bands  or  gearing  which 
may  be  thrown  off  at  pleasure,  and 
without  injury  to  the  freehold: 
Notes  to  Elwes  v.  Mawe,  and  au- 
thorities cited:  2  Smith's  Lead. 
Cas.  249.  Nor  can  it  be  said  that 
actual  annexation  was  so  essentially 
necessary  to  constitute  a  fixture, 
even  in  the  earliest  and  most  tech- 
nical periods  of  the  common  law, 
as  to  bear  down  and  overpower  all 
other  considerations.  The  doctrine 
of  heirlooms  necessarily  implies 
that   chattels   may  be   deprived   of 


CHAP.    XXXIII.]      FIXTURES  PASSING  BY  DEED.  2279 

the  purchase  money  will  attach  to  a  sawmill  erected  by  the 
purchaser  upon  the  land  and  intended  to  be  a  permanent  an- 
nexation to  the  land.^  Where  railroad  spike  machines  are 
purchased  by  the  owner  of  a  rolling  mill  with  the  bona  fide 
intention  on  his  part  of  attaching  them  to  the  mill  and  they 
are  necessary  for  the  purpose  for  which  they  are  to  be  used, 
they  will  be  considered  as  part  of  the  realty,  and  are  not 
subject  to  attachment  and  sale  as  personal  prt)perty.^  So, 
with  an  engine  and  boiler.  They  will  not  be  subject  to  sale 
on  execution  as  personally.^  Where  a  deed  of  a  sawmill 
described  the  land  conveyed,  "together  with  all  the  mills,  ma 
chinery,  tools,  fixtures  and  appurtenances  pertaining  to  the 
same"  and  the  mill  site  had  been  in  use  for  a  long  period  of 
time  and  the  custom  was  to  consider  all  machinery  attached 
to  the  building  as  a  paft  of  it,  the  machinery  and  a  appliances 
not  being  capable  of  removal  without  injuring  them  or  the 
land,  and  it  appearing  by  the  tax  books  that  there  was  no 

their   movable   and   personal   char-  chattels    as    were    fastened    to    the 

acter,  and  rendered  inseparably  at-  realty,  and  were  more  or  less  im- 

tendant  upon  the  inheritance,  by  the  movable,    has    been    modified    and 

force  of  moral  association.     It  has  molded  to  suit  the  improvements  in 

never  been  doubted  that  the  keys  art  and  science  of  modern  times." 

of  a  house,  or  the  fences  or  walls  See  Fairis  v.  Walker,  1  Bail.  540; 

of   a    farm,   are  part  of   the   free-  Voorhis  v.  Freeman,  2  Watts  &  S. 

hold.     It  was  held  in  Kittredge  v.  117,  37  Am.  Dec.  490;  Heermance 

Woods,  3  N.  H.  503,  14  Am.  Dec.  v.  Vernoy,  6  Johns.  5 ;  Gary  v.  Bur- 

393,  and  Parsons  v.  Camp,  11  Conn.  guires,  12  La.  Ann.  227;   Fierce  v. 

525,  that  the  manure  on  a  farm  at  George,  108  Mass.  78,  11  Am.  Rep. 

the  time  it  was  sold  vested  in  the  310;  Allen  v.  Woodard,  125  Mass. 

vendee.     And  these  decisions  were  400,  28  Am.  Rep.  250;   Parsons  v. 

followed   in    Goodrich   v.   Jones,   2  Copeland,  38  Me.  537. 
Hill,    142,    and   the   purchaser   held  ^  Markle  v.   Stackhouse,  65  Ark. 

to  be  both  entitled  to  the  manure  23,  44  S.  W.  808. 
and  the  fences,  although  the  latter  2  McFadden  v.  Crawford,  36  W. 

has  been  detached   from  the  soil:  Va.  651,  15  S.  E.  408,  32  Am.  St. 

Goodrich    v.    Jones,    2    Hill,    142.  Rep.   894. 

These  authorities  are  cited  to  show  3  PaUon    v.    Moore,    16   W.    Va. 

that  the  ancient  rule  which  treated  428,  37   Am.    Rep.   789. 
nothing    as    fixtures     except    such 


2280  THE  LAW  OF  DEEDS.  [CHAP.    XXXIU. 

assessment  against  the  mills  and  machinery  as  personalty,  the 
court  held  that  the  mill  and  machinery  attached  to  it  should 
be  considered  as  real  estate,  and  was  subject  to  a  vendor's 
lien.*  Where  a  building  is  conveyed  by  a  deed,  and  also 
"all  steam  heating  apparatus  and  its  connections,"  it  is  a 
question  of  fact  for  the  jury  whether  iron  screens  placed  in 
front  of  the  steam  radiating  pipes  which  rest  on  the  floor  and 
are  retained  in  position  by  their  own  weight,  with  marble 
slabs  upon  them,  are  transferred  by  the  deed."* 

§  1213.  English  view  of  movable  machinery.— In  Eng- 
land and  Ireland,  the  courts  manifest  a  strong  inclination  to 
consider  all  machinery  annexted  to  the  floor,  ceilings,  or  sides 
of  a  building  in  a  "quasi  permanent  manner,"  by  bolts  or 
screws,  as  being  fixtures  which  pass  by  a  deed  or  mortgage  to 
the  purchaser  or  mortgagee.  They  hold  that  the  facts,  that 
the  design  of  the  annexation  was  solely  to  steady  the  machines 
when  in  use,  that  their  removal  might  be  affected  without  in- 
jury to  them  or  to  the  freehold,  and  that  the  machines  are 
in  the  nature  of  trade  fixtures,  which  as  beteween  landlord 
and  tenant,  belong  to  the  latter,  can  make  no  difference;  they 
are  nevertheless  regarded  as  a  part  of  the  realty.^  In  a  case 
determining  what  articles  passed  as  fixtures,  where  the  owner 
of  certain  premises  created  a  mortgage  upon  them,  and  after- 
ward executed  a  bill  of  sale  of  the  machinery  therein  con- 
tained to  a  third  person,  and  subsequently  executed  a  deed 
to  the  mortgagee  of  the  land  covered  by  the  mortgage,  the 
assignee  under  the  bill  of  sale  having  notice  of  the  prior  mort- 

*Bemis   v.   First    Nat.   Bank,   63  2   Kay   &  J.   536;   25   Law   J.   Ch. 

Ark.  625,  40  S.  W.   127.  361;   Walmsley   v.    Milne,   7   Com. 

6  Leonard  v.  Stickney,  131  Mass.  B.,  N.  S.  115;  29  Law  J.  Com.  P. 

541  97;  CuUwick  v.  Swindell,  Law  R.  3 

'  fiLongbottom  v.  Berry,  Law  R.  5  Eq.  249;  Climie  v.  Wood,  Law  R. 

Q    B    123,  137 ;  s.  c.  39  Law  J.  Q.  3  Ex.  257 ;  s.  c.  in  error,  Law  R.  4 

B.  37;   10  Best  &  S.,  852,  877;  22  Ex.  328. 
L.  T.  N.  S.  385;  Mather  v.  Eraser. 


CHAP,    SXXIII.]       FIXTURES   PASSING  BY   DEED.  2281 

gage,  this  question  arose.  The  authorities  are  reviewed  by 
Hannen,  J.,  who  says:  "On  the  part  of  the  plaintiff,  it  was 
strongly  contended  on  the  authority  of  Hellawell  v.  East- 
w^ood,'  that  the  machines  and  articles  now  in  dispute,  look- 
ing to  the  nature  of  the  articles,  the  mode  of  annexation,  and 
the  object  and  purpose  of  annexation,  were  not  in  truth  fix- 
tures at  all,  but  remained  mere  movable  goods  and  chat- 
tels, which  would  be  liable  to  distress,  as  the  machines  called 
cotton  mules  were  held  to  be  in  that  case.  The  grounds  of 
decision  given  by  the  court  in  that  case  being,  that  the  an- 
nexation there  was  so  slight  as  to  admit  of  removal  of  the 
machines  without  injury  to  the  building  or  themselves,  and 
the  object  and  purpose  of  annexation  being  not  to  improve  the 
inheritance,  but  to  render  the  machines  steady  and  more  ca- 
pable of  convenient  use  as  chattels.  In  that  case,  the  mules 
were  affixed  in  the  same  manner  as  many  of  the  machines 
in  the  present  case.  But  it  is  observable  that  the  case  was 
decided  before  any  of  the  cases  to  which  we  have  referred,  and 
was  cited  in  all,  or  more  of  them,  but  not  followed  in  any. 
On  the  contrary,  it  was  distinguished  in  Mather  v.  Eraser,^  by 
the  present  lord  chancellor,  then  vice-chancellor,  who  observed 
that  it  was  a  case  between  landlord  and  tenant,  and  was  al- 
together inapplicable  to  the  question  whether  machines  fixed 
by  the  owner  of  the  sail  passed  to  a  mortgagee  of 
the  freehold.  In  that  case,  machinery  fixed  in  the 
same  manner  as  the  machines  in  Hellawell  v.  Eastwood,' 
were  considered  to  pass  to  a  mortgagee  as  fixtures; 
and  so  also  in  Walmsley  v.  Milne,^  the  fact  that  the  ma- 
chinery was  so  fastened  as  to  admit  of  severance  without 
injury  to  the  building,  or  the  things  fixed,  was  also  disregard- 
ed by  the  court,  as  was  also,  in  Climie  v.  Wood,^  the  special 
addition  facts  found  by  the  jury,  that  the  object  of  annexation 

7  6  Ex.  295;  20  Law  J.  Ex.  154.  17  Com.  B.,  N.  S.,  115;  29  Law 

8  2  Kay  &  J.  536.  J.  Com.  P.  97. 

9  6  Ex.  295;  20  Law  J.  Ex.  154.  2  Law   R.   3    Ex.   257;    in   error, 

Law  R.  4  Ex.  328. 


2282  THE  LAW  OF  DEEDS.  [CHAP.    XXXlIl. 

was  for  the  more  convenient  use  of  the  things  fixed,  and  not 
to  improve  the  inheritance.     In  the  present  case  the  machin- 
ery in  question  was  nearly  all  firmly  fixed  to  the  building, 
in   what  the  vice-chancellor,   in  Mather  v.   Frazer,"   calls  a 
quasi  permanent  manner,  viz.,  by  screws,  or  bolts,  or  soldered 
with  lead ;  in  most  cases  they  were  affixed  to  the  floor,  in  some 
both  to  floor  and  roof,  and  in  others,  to  the  side  walls.    This 
fixing  was  clearly  necessary,  for  they  could  not  otherwise  be 
effectually  used,  as,  for  the  same  reason,  the  fixing  was  ob- 
viously not  occasional,  but  permanent.     It  is  no  doubt  said 
in  this  case  that  the  object  of  fixing  was  to  insure  steadiness 
and  keep   the  machines   in   their  places   when   worked;   but 
the  same  tiling  could  probably  be  said  of  most  trade  fixtures, 
from   a  steam-engine   downward,   and   if  the  effect  of   this 
fixing  is  to  cause  the  wliole  set  of  machines  to  be  effectually 
used  in  the  manufacture  of  wool  and  cloth,  it  seems  very 
difficult  to  avoid  coming  to  the  conclusion  that  a  necessary 
consequence  is  to  cause  the  mill  to  be  put  to  a  more  profitable 
use  as  a  wool  mill  than  it  otherwise  would  be;  it  is  also  equal- 
ly difficult  to  conceive  that  a  machine,  which,  at  all  times,  re- 
quires to  be  iirmly  fixed  to  the  freehold,  for  the  purpose  of 
being  worked,  could  truly  be  said  never  to  lose  its  character 
as  a  movable  chattel.     We  therefore  think  that  the  case  of 
Hellawell   v.    Eastwood   was   well   distinguished    from   cases 
like  the  present  in  Mather  v.  Eraser;  and  that  all  the  fixed 
articles  in  this  case  were  such  articles,  in  the  nature  of  trade 
fixtures,  as  were  considered  by  the  court  of  error  in  Climie 
V.  Wood,  to  pass  to  the  mortgagees,  and  that  the  passed  here 
to  the  defendants,  under  their  mortgage  and  subsequent  con- 
veyance." *     In  a  case  in  Ireland,  looms  made  fast  to  a  tiled 
floor,  by  wrought-iron  spikes  driven  through  the  titles,  are 
fixtures  that  will  pass  by  a  conveyance."  ^ 

8  2  Kay  &  J.   536.  ^  In  re  Dawson,  Tate  &  Co.,  Irish 

*  In  Longbottoni  v.  Berry,  Law  R.  R.    2   Eq.   218.     See,   also,    Barnett 

5  Q.  B.   123,   137;  s.  c.  39  Law  J.  v.  Lucas,  5  1.  R.  C.  L.   140;  Boyd 

Q.   B.  37.  V.  Shorrock,  Law  R.  5  Eq.  72;  s.  c 


CHAP.    XXXIII.]       FIXTURES   PASSING   BY  DEED. 


2283 


§  1214.  American  cases. — In  this  country,  it  sems  to 
be  generally  considered,  though  there  are  many  cases  to  the 
contrary,  that  if  the  articles  can  be  removed  without  essential 


37  Law  J.  Ch.  144;  17  L.  T.  N.  S., 
197;  16  Week.  R.  102;  Holland  v. 
Hodgson,  Law  R.  7  Com.  P.  328; 
Wiltshear  v.  Cottrell,  1  El.  &  B. 
674;  s.  c.  22  Law  J.  Q.  B.  177;  17 
Jur.  758;  18  Eng.  L.  &  Eq.  142; 
The  Patent  Peat  Co.,  17  L.  T.  N. 
S.,  69;  Parsons  v.  Hind,  13  Week. 
R.  860.  The  court  said,  per  Mil- 
ler, J.,  in  In  re  Dawson,  Tate  &  Co., 
Irish  R.  2  Eq.  218  (p.  221)  :  "An- 
other, however,  and  a  serious  ques- 
tion, arises  from  the  deed  of  1866, 
not  having  been  registered  as  a  bill 
of  sale,  namely,  whether  the  looms 
which  had  been  erected  in  the  fac- 
tory at  Banview,  and  mentioned  in 
the  schedule  to  that  deed,  were  fix- 
tures so  as  to  pass  by  the  nortgage 
of  June,  1866,  or  movable  chattels 
vested  in  the  assignees.  There  has 
been  evidence,  both  on  the  part  of 
the  assignees  and  mortgagees,  as 
regards  that  question.  .  .  .  The 
evidence  relied  upon  by  the  mort- 
gagees of  1866,  as  establishing  that 
the  looms  in  question  were  fixtures, 
was  that  given  by  Watts,  a  practical 
engineer,  who  was  sent  down  speci- 
cially  to  the  Banview  factory  for 
the  purpose  of  making  an  examin- 
ation of  these  looms.  He  stated 
that  the  floors  upon  which  the 
looms  were  placed  were  paved 
over  with  tiles  or  bricks  about  a 
foot  square;  that  three  of  the 
looms  were  not  attached  to  the 
floor;  that  one  hundred  and  one 
looms  were  attached  by  a  wrought- 
iron  spike  driven  through  the  feet 
of  each  loom  into  the  floor.     The 


spike  is  five  inches  long  by  a  half 
inch  thick,  and  he  had  to  get  a 
hammer  and  chisel  to  draw  it  out. 
The  spikes  were  driven  into  the 
floor  and  the  looms  were  fastened 
down  to  prevent  them  from  mov- 
ing; and  he  stated  that  the  fasten- 
ing was  essential  to  their  being 
worked.  The  evidence  relied  upon 
by  the  assignee  was  that  of  Mr. 
Woodford,  who  stated  fliat  al- 
though he  was  not  an  engineer,  he 
was  familiar  with  such  subjects, 
and  was  a  flax  sewing-machine 
maker.  He  said  there  was  a  fast- 
ening on  the  looms,  by  a  spike  put 
down  into  the  tiles,  and  that  the 
tiles  were  about  two  inches  thick; 
that  if  the  belts  by  which  the  ma- 
chines were  moved  were  tight, 
they  were  liable  to  be  lifted  up,  if 
not  made  fast  to  the  floor  (but 
that  would  be  only  at  the  time  the 
machine  might  be  set  going),  and 
that  if  not  fastened  down  some  ac- 
cident might  take  place;  nearly  all 
the  looms  were  fastened,  and  only 
three  or  four  were  loose;  he  does 
not  say  there  was  any  use  in  a 
fastening,  further  than  to  prevent 
an  accident  in  case  of  a  tight  belt. 
L^pon  the  whole  of  the  evidence  in 
this  case,  and  upon  the  question  of 
the  fixtures  I  cannot  come  to  any 
other  conclusion  than  that  the  one 
hundred  and  one  looms  at  the  fac- 
tory in  Banview,  which  were  fast- 
ened in  the  manner  and  for  the 
purposes  described,  had  the  ele- 
ments necessary  to  constitute  a  fix- 
ture, and  were,  at  the  date  of  the 


2284  THE  LAW  OF  DEEDS.  [CHAP.    XXXIII. 

injury  to  the  freehold  or  to  themselves,  and  if  the  purpose  of 
attaching  them  to  a  structure  is  solely  to  maintain  them  in  a 
steady  condition,  they  are  personal  property,  and  a  deed  or 
mortgage  will  not  transfer  them,  unless  such  is  the  express 
intention  to  be  gathered  from  the  deed  itself.  Thus,  machin- 
ery in  a  blacksmith  and  wagonmaker's  shop,  consisting  of  a 
boring  lathe,  an  engine  lathe,  a  wood-turning  lathe,  a  press 
drill,  a  press  punch,  an  upright  saw,  and  a  circular  saw,  all 
propelled  by  water  and  attached  to  the  building  for  the  pur- 
pose of  making  them  firm,  and  which  can  be  removed  from 
the  building  without  serious  injury  to  it,  are  personal  prop- 
erty, and  not  fixtures.^  So,  where  property  embracing  vari- 
ous articles  of  machinery  for  carding,  spinning,  twisting,  ball- 
ing, preparing,  and  packing  cotton,  and  standing  upon  the 
floor  of  the  mill  over  the  apertures  therein,  made  for  the 
passage  of  the  leather  bands  or  belts  by  which  the  machinery 
was  moved ;  and  where  the  machinery  was  not  fastened  to  the 
building  in  any  other  manner  than  by  such  bands  and  belts, 
and  in  some  cases  by  cleats  tacked  to  the  floor,  the  bands 
being  used  for  motion,  and  not  for  fastening,  and  where 
each  machine  might  be  removed  without  injury  to  itself  or 
to  the  building,  it  was  held  in  a  controversy  between  a  person 
claiming  the  machinery  under  a  mortgage  upon  the  realty 
and  creditors  of  the  mortgagor  under  an  execution  against 
his  property,  and  under  a  chattel  mortgage,  that  the  articles 
were  not  attached  to  the  building  in  sucli  a  manner  as  to  con- 
stitute them  fixtures.'  "To  constitute  an  instrument  or  ma- 
bankruptcy  in  this  matter,  fixtures  '  Vanderpoel  v.  Van  Allen,  10 
attached  to  the  freehold;  but  that  Barb.  157.  See,  also,  Swift  v. 
the  remaining  three  looms  that  Thompson,  9  Conn.  63,  21  Am.  Dec. 
were  not  so  fastened,  and  as  to  718;  Murdock  v.  Gifford,  18  N.  Y. 
which  there  is  no  very  clear  evi-  28;  Tobias  v.  Francis,  3  Vt.  425,  23 
dence  as  to  whether  in  fact  they  Am.  Dec.  217;  Cresson  v.  Stout,  17 
ever  had  been  used,  could  not  be  Johns.  116,  8  Am.  Dec.  373;  Capen 
regarded  as  having  been  fixtures  v.  Peckham,  35  Conn.  88;  Gale  v. 
at  the  date  of  the  bankruptcy."  Ward,  14  Mass.  352,  7  Am.  Dec. 
flfiartlett  v.  Wood,  32  Vt.  ill.          223;  Gaylor  v.  Harding,  37  Conn. 


CHAP.    XXXIII.]       FIXTURES  PASSING  BY  DEED. 


2285 


chine  employed  in  the  business  of  trade  or  manufactures, 
a  fixture,  so  as  to  pass  with  the  deed  as  parcel  of  the  free- 
hold, it  must  be  permanently  habitually  attached  to  it,  or  it 


508;  Graves  v.  Pierce,  53  Mo.  429; 
McKim  V.  Mason,  3  Md.  Ch.  186; 
Sturgis    V.    Warren,    11    Vt.    433; 
Penn  Mut.  Ins.  Co.  v.  Semple,  38 
N.   J.    Eq.    575;    Southbridge    Sav. 
Bank    v.    Exeter    Machine    Works, 
127   Mass.   542;    Maguire  v.   Park, 
140   Mass.  21;   Rogers  v.  Brokaw, 
25  N.  J.  Eq.  496;  Wolford  v.  Bax- 
ter, 33  Minn.   12,  53  Am.  Rep.   1; 
McConnell  v.  Blood,  123  Mass.  47, 
25  Am.  Rep.  12;  Robertson  v.  Cor- 
sett,    39    Mich.    777;    Carpenter   v. 
Walker,  140  Mass.  416;  Hubbell  v. 
East    Cambridge    Sav.    Bank,    132 
Mass.     447,     43     Am.     Rep.     446; 
Scheifele  v.  Schmitz,  42  N,  J.  Eq. 
700.     In  Vanderpoel  v.  Van  Allen, 
10  Barb.  157,  Brown,  J.,  said:  "The 
property  in  dispute  consists  of  vari- 
ous articles  of  machinery  for  card- 
ing, spinning,  twisting,  balling,  pre- 
paring, and  packing  cotton  yarn  and 
cotton  twine.     It   stands   upon   the 
floor  of  the  mill,  over  the  apertures 
or  openings  therein,  made   for  the 
passage    of    the    leather    bands    or 
belts  by  which  it  is  moved,  and  is 
not  fastened  to  the  building  other- 
wise than  by  such  belts  and  bands, 
and  in  some  few  instances  and  arti- 
cles by  cleats  tacked  to  the   floor 
because  it  was  out  of   level  when 
placed  upon  it.    The  bands  are  used 
for  motion,  and  not  for  fastening, 
and  the  cleats  to  give   a  uniform 
and   level   surface  to  the   floor  of 
the  building.     The  motive  power  is 
water;  the  belts  or  bands  passing 
over  a  wheel  or  pulley  upon  each 
separate  machine,  and  from  thence 


run  over  drums  upon  lines  of  shaft- 
ing, geared  in  communication  with 
the  waterwheel.  The  belts  or  bands 
are  slipped  off  and  on  the  pulleys 
by  hand,  so  as  to  put  it  in  opera- 
tion, or  arrest  its  motion,  at  the 
pleasure  of  the  operator.  Every 
machine  may  be  easily  and  conven- 
iently removed  without  injury  to 
itself  or  to  the  building  in  which 
it  stands ;  and  if  so  removed  might 
be  used  with  the  same  effect  and 
for  the  same  purpose  on  th:  floor 
of  any  other  building  where  there 
is  motive  power  to  put  it  in  oper- 
ation. The  mill  or  building  would 
suffer  no  detriment  from  such  re- 
moval, for  it  is  immediately,  and 
without  any  previous  preparation, 
adapted  to  the  use  of  similar  ma- 
chines for  the  manufacture  of  the 
same  article,  or  for  any  other  ma- 
chines employed  in  a  different  man- 
ufacture, which  stand  upon  a  level 
floor,  and  are  put  in  motion  by  a 
pulley  and  a  band.  The  machinery 
was  not  constructed  in  the  building 
or  upon  the  premises  where  it  is 
used,  for  the  better  enjoyment  of 
the  inheritance;  but  each  separate 
article  was  made  in  a  work  or  ma- 
chine shop  in  a  different  place,  and 
removed  entire  and  complete  and 
fit  for  use  to  the  place  where  it  now 
is.  It  is  in  proof  that  such  like 
machinery  is  oftentimes  the  prop- 
erty of  the  manufacturer,  while 
the  mill  where  it  is  used  is  the 
property  of  another;  and  that  it  is 
a  common  occurrence  to  remove 
the  articles  separately  from  the  mill 


2286 


THE  LAW  OF  DEEDS. 


[chap.    X2XIII. 


must  be  a  component  part  of  some  erection,  structure,  or  ma- 
chine which  is  attached  to  the  freehold,  and  without  which  the 


to  the  workshop,  to  be  repaired  and 
remodeled,    and   when   so   repaired 
they  are  returned  to  the  mill  again. 
There  is  nothing  in  the  pleadings 
or  proofs  to  show  when  the  prop- 
erty was  placed  in  the  mill— wheth- 
er before  or  since  the  date  of  the 
plaintiff's    mortgage— so    that    if    it 
has  now  become  a  part  of  the  free- 
hold, it  is  subject  to  the  plaintiff's 
lien,  and  cannot  be  removed.    Oth- 
erwise it  belongs  to  the  defendants, 
and  may  be  taken  away  and  appro- 
priated by  them  to  the  payment  of 
their  debt.     Fixtures  are  defined  to 
be  'chattels  or  articles  of  a  personal 
nature  which  have  been  affixed  to 
the  land.'     To   make  an   article   a 
fixture,  'it  must  not  only  be  essen- 
tial to  the  business  of  the  erection, 
but    it    must    be   attached    to    it    in 
some  way;  at  least  it  must  be  me- 
chanically fitted,  so  as,  in  ordinary 
understanding,   to   make   a  part  of 
the    building    itself.'     The    general 
rule  is  'that  anything  of  a  personal 
nature    not    fixed    to    the    freehold 
cannot  be  considered  as  an  incident 
to  the  land,  as  between  vendor  and 
vendee.'     The  property  in  question 
is  not  actually  annexed  to  the  free- 
hold.   The  mere  setting  down  upon 
the  floor  of   the  building,  and  the 
leather  bands  slipped  on  to  the  pul- 
leys  when  it  is   in  motion,  do  not 
effect  a  physical  union.    Nor  do  the 
circumstances,     in     my     judgment, 
make  out  a  constructive  annexation. 
Each  of  these  machines  is  complete 
and  perfect,  and,  to  a  great  extent, 
independent   in  itself.     If   any  one 
of   them   is   dependent  on  another, 


they  are  not  all  dependent  on  each 
other,  nor  on  the  water  power  and 
the  mill,  except  for  motion,  for  the 
proof  shows  that  there  is  no  par- 
ticular fitness  or  adaptation  to  this 
mill    or    water    power    more    than 
there   is   to    any   other.     This   ma- 
chinery bears  but  little  resemblance, 
if  any,  to  the  key  of  a  door,  the 
chain,  dogs,  and  bars  of  a  sawmill, 
the  stone  of   a  gristmill  taken   up 
to   be    picked,    the   Venetian   blind, 
window-shutters  and  doors  tempo- 
rarily  removed    from   their  hinges, 
or  the  mill  irons  and  gearing  dis- 
located and  carried  away  by  a  flood, 
of  which  we  read  in  the  books ;  for 
they   were   essential   and  necessary 
parts    of    machinery   or    structures, 
which   were   so   firmly   united   with 
the  freehold  as  to  make  them  fix- 
tures beyond  all  dispute.    The  rigor 
of  the  ancient  law  of  fixtures,  as 
between    landlord    and    tenant,   has 
been  much  relaxed  in  modern  times 
for   the   benefit   of   trade.     In  this 
State   it  has  been  modified  as  be- 
tween heir  and  executor  or  admin- 
istrator   (2   Rev.    Stats.   24,   §   6)  ; 
but    between    vendor    and    vendee, 
mortgagor    and    mortgagee,    it    re- 
mains as  it  always  was.     The  un- 
certainty which   we  constantly  en- 
counter in  the  investigation  of  the 
subject  sometimes  arises   from  the 
nature  of  the  thing  claimed  to  be  a 
fixture ;    and   at   other  times,    from 
the  means  by  which  it  is  supposed 
to    be    united    with    the    freehold. 
Connection,  or  disconnection,  union 
or  separation,  seemed  to  be  the  es- 
sence  of  the  ancient  rule;  yet,  to 


CHAP.    XXXIII.]       FIXTURES  PASSING  BY  DEED. 


2287 


erection,  structure,  or  machine,  would  be  imperfect  and  in- 
complete." ' 

§  1215.  Different  view. — A  different  view,  however, 
prevails  in  some  of  the  States.  Thus,  in  North  Carolina, 
a  cotton-gin  and  press  attached  to  the  freehold  in  the  usual 
way  have  been  held  to  be  fixtures.^  In  Mississippi,  gin-stands 
annexed  to  the  freehold  in  .the  ordinary  manner  are  regarded 
as  fixtures  which  pass  by  a  sale  of  the  realty.^  In  Maine,  ii 
was  held  that  belts,  looms,  carding  machines,  pickers,  jacks, 
spoolers,  and  dressers,  suited  and  designed  for  a  woolen  fac- 
tory, and  placed  therein  by  the  owners,  although  they  were 
capable  of  removal  without  injury  to  the  freehold,  were  fix- 


insist  upon  it  in  its  literal  sense, 
will  not  free  the  subject  from  its 
real  difficulties.  There  are  certain 
things  upon  agricultural  land — of 
which  rail  fences  may  be  given  as 
an  example — resting  upon  its  sur- 
face, and  in  no  other  way  attached 
to  it,  light,  movable,  and  actually 
moved  about  from  place  to  place, 
and  from  time  to  time,  to  suit  the 
convenience  of  the  occupant,  which 
the  law  and  the  universal  sense  of 
mankind  regard  as  fixtures ;  while 
there  are  certain  other  things  at- 
tached to  the  interior  walls  of  a 
dwelling  house,  by  nails,  screws, 
and  iron  straps,  of  which  mirrors 
and  paintings  may  be  given  as  ex- 
amples, which  are  in  like  manner 
regarded  as  chattels.  In  respect 
to  structures  and  machines  used  in 
the  business  of  trade  and  manufac- 
turing, there  is  a  wide  and  manifest 
distinction  between  ponderous  arti- 
cles purposely  fitted  and  adapted  to 
the  places  where  they  are  used,  and 
unfitted  and  unadapted  to  all  oth- 
ers,   of    which    waterwheels,    mill 


gearing,  shafts,  carriageways  for 
sawmills,  steam  boilers,  and  engines 
may  be  given  as  examples,  and 
those  lighter,  more  portable,  and 
wonderful  creations  of  human  in- 
genuity and  skill,  of  which  power 
looms,  carding,  spinning,  and  pin 
machines  may  be  cited  as  examples, 
which  stand  like  a  piece  of  fur- 
niture upon  a  floor,  are  moved  by 
any  kind  of  motive  power;  which 
may  be  displaced,  and  repaired  and 
replaced,  without  interruption  to 
the  business  or  hindrance  to  the 
other  machinery,  and  which  have 
no  other  connection  with  the  free- 
hold but  that  formed  by  the  leather 
band  which  puts  them  in  motion." 

8  Vanderpool  v.  Van  Allen,  10 
Barb.  157.  And  see  Hellawell  v. 
Eastwood,  6  Ex.  295 ;  Parsons  v. 
Hind,  14  Week.  R.  860;  Hutchinson 
v.  Kay,  23  Beav.  413;  Waterfall 
v.  Peniston,  6  El.  &  B.  876;  Rogerr, 
v.  Brokaw,  25  N.  J.  Eq.  496. 

9  Bond  V.  Coke,  71  N.  C.  97. 

1  Richardson  v.  Borden,  42  Miss. 
71;  2  Am.  Rep.  595. 


2288  THE  LAW  OF  DEEDS.  LCHAP.    XXXHI. 

tures,  appertaining  to  the  realty,  and,  accordingly,  such  art- 
icles, in  a  partition  ordered  among  tenants  in  common,  may 
be  divided  as  real  estate.'  A  planing  machine,  lathes,  and 
vises  in  a  machine  shop  or  car  factory,  if  they  are  necessary 
part  of  the  machinery  for  carrying  on  the  business,  it  was 
decided  in  Pennsylvania,  are  fixtures,  appurtenant  to  the  real- 
ty, without  regard  to  the  manner  in  which  they  are  attached 
to  the  building  in  which  they  are  used.''  Acting  on  the  prin- 
ciple that  machinery  in  a  cotton  or  woolen  factory,  necessary 
to  constitute  it,  is  a  part  of  the  freehold,  and  as  such  will 
pass  by  the  owner's  deed,  or  by  the  deed  of  the  sherifif  selling 
the  real  estate  upon  execution,  the  court  in  the  same  State 
determined  that  where  such  a  fixture  was  detached  by  the 
former  owner,  after  a  sale  by  the  sheriff,  the  purchaser  of  the 
real  estate  could  maintain  replevin  for  the  article  against  the 
person  who  detached  it.* 

§  1216.  Effect  of  statute. — A  statute  in  California  pro- 
vided that  "any  inhabitant  of  this  State,  who  has  put  or 
placed  improvements  upon  any  lands  belonging  to  this  State, 
or  the  United  States,  or  who  has  the  right  of  possession  of 
such  improvements  on  said  lands,  shall  have  the  right  to  re- 
move such  improvements  from  such  lands  at  any  time  within 
six  months  after  such  lands  shall  have  become  the  private 

*  Parsons  v.  Copeland,  38  Me.  v.  Fuller,  28  Me.  545;  Bratton  v. 
537,  Clawson,   2    Strob.   478;    Baker   v. 

'Christian  v.  Dripps,  28  Pa.   St.  Davis,    19    N.    H.    325;    Fairis    v. 

271.     It  was  also  held  in  this  case  Walker,   1   Bail.   540;   McDaniel   v. 

that    the    proof    of    a    custom    in  Moody,    3    Stewt.    140.      Compare 

opposition    to   the    law    of    fixtures  Hancock  v.  Jordan,  7  Ala.  448,  42 

could  not  evade  the   rule.  Am.   Dec.  600;   Cole  v.  Roach,  37 

*  Harlan  v.  Harlan,  15  Pa.  St.  Tex.  413.  Dry  kiln,  planing  ma- 
507,  53  Am.  Dec.  612;  s.  c.  20  Pa.  chine,  matching  machine,  etc.,  held 
St.  303.  See,  also,  Symonds  v.  in  Michigan  to  be  a  part  of  the  real 
Harris,  51  Me.  14,  81  Am.  Dec.  553;  property.  Studley  v.  Ann  Arbor 
Deal  V.  Palmer,  72  N.  C.  582;  Lat-  Savings  Bank,  112  Mich.  181,  70 
ham  v.  Blakely,  70  N.  C.  368;  Tate  N.   W.   426. 

V.    Blackburne,   48   Miss.    1;   Trull 


CHAP.    XXXIII.]      FIXTURES  PASSING  BY  DEED. 


2289 


property,  by  purchase  or  otherwise,  of  any  person  or  persons, 
firm,  corporation,  or  company,  either  within  or  without  this 
State :  and  such  inhabitant  shall  not  be  liable  to  an  action  for 
damages  for  the  removal  of  such  improvements  within  the 
time  above  stated.  All  houses,  bams,  sheds,  outhouses,  build- 
ings, and  fences,  and  all  orchards  and  vineyards,  shall  be 
deemed  and  held  to  be  improvements,  within  the  meaning  of 
this  act."  This  statute,  in  respect  to  improvements  which 
were  attached  to  the  soil,  and  become  a  part  of  the  freehold, 
was  held  to  interfere  with  the  primary  disposal  of  the  public 
lands  by  the  United  States,,  and  to  be  in  conflict  with  the 
act  of  Congress  admitting  California  into  the  Union.**  But 
while  this  is  held  of  improvements  attached  to  the  realty,  so 
as  to  become  a  part  of  it,  it  is  also  held  that,  if  buildings  and 
fences  erected  on  the  public  lands  of  the  United  States  are 
not  attached  to  the  soil  in  such  a  manner  as  to  form  a  part 
of  the  freehold,  they  do  not  pass  to  a  purchaser  from  the 


B  Collins  V.  Bartlett,  44  Cal.  371 ; 
Stats.  Cal.  1867-68,  p.  708.  Rhodes, 
J.,  delivering  the  opinion  of  the 
court  in  Collins  v.  Bartlett,  said 
(p.  383)  :  "This  enactment  raises 
the  question  whether  this  State  has 
authority  to  provide  that  a  patent 
issued  in  accordance  with  the  acts 
of  Congress,  upon  a  sale  of  the 
public  lands  of  the  United  States, 
shall  not  convey  absolutely  to  the 
purchaser  all  that  it  purports  to 
convey — all  the  real  estate  within 
the  boundaries  of  the  lands  de- 
scribed in  the  patent.  If  houses, 
fences,  orchards,  and  vineyards  on 
the  lands  of  the  United  States 
are  real  estate,  they  are  as  much  a 
part  of  the  freehold  as  the  soil 
itself;  and  the  statute,  by  giving 
to  them  other  names,  does  not 
change  their  character,  or  sever 
them  from  the  land.  They  being  a 
Deeds,  Vol.  H.— 144 


part  of  the  freehold,  a  patent  issued 
in  the  usual  form  by  the  United 
States  would  convey  them  to  the 
purchaser  of  the  land,  and  the 
State  cannot  prevent  them  from 
vesting  absolutely  in  the  purchaser 
by  virtue  of  the  patent,  without  in- 
terfering with  the  primary  disposal 
of  the  public  lands  by  the  United 
States.  When  the  'improvements' 
are  in  fact  personal  property,  it 
needs  not  the  aid  of  a  statute  to 
give  the  owner  the  right  to  remove 
them  from  the  land,  and  it  is  equal- 
ly clear  that  the  statute,  so  far  as 
it  purports  to  give  the  claimant  the 
right  to  remove  them  from  lands  of 
which  they  formed  a  part  when 
they  were  sold  and  conveyed  by  the 
United  States,  is  void,  because  in 
conflict  with  the  act  admitting  this 
State  into  the  Union." 


2290 


THE  LAW  OF  DEEDS. 


[chap.   XXXIII. 


United  States,  the  latter  having  no  interest  in  them ;  the  per- 
son who  constructs  them  is  entitled  to  remove  them  after  the 
issuance  of  a  patent  to  the  purchaser.*  Statutes  commonly 
designated  as  "betterment  laws,"  which  provide  for  the  pay- 
ment by  the  true  owner  for  improvements  made  by  another, 
intended  to  secure  to  the  latter  the  fruits  of  his  labor,  have 
been  held  to  be  constitutional  almost  without  question.'' 

§  1217.  Right  to  remove  under  contract  for  purchase. 
— Where  a  party  is  in  possession  of  real  estate  under  a 
bond  for  a  deed,  tliere  being  no  .agreement  for  the  payment  of 
rent,  and  fixtures  are  added  by  him  to  the  realty,  his  right  to 
remove  them  is  determined  by  the  rule  which  obtains  between 
vendor  and  purchaser,  and  not  that  which  prevails  between 


8  Pennybecker  v.  McDougal,  48 
Cal.  160. 

"^  Among  the  many  cases  so  hold- 
ing we  select  the  following:  Ross 
V.  Irving,  14  111.  171 ;  Brown  v. 
Storm,  4  Vt.  37;  Childs  v.  Shower, 
18  Iowa,  261 ;  Longworth  v.  Worth- 
ington,  6  Ohio,  10;  Whitney  v. 
Richardson,  31  Vt.  300;  Pacquette 
V.  Pickness,  19  Wis.  219;  Fowler 
V,  Halbert,  4  Bibb,  54;  Hunt's 
Lessee  v.  McMahan,  5  Ohio,  133 ; 
Withington  v.  Corey,  2  N.  H.  115; 
Saunders  v.  Wilson,  19  Tex.  194; 
Bacon  v.  Callender,  6  Mass.  303 ; 
Moss  V.  Shear,  25  Cal.  44,  85  Am. 
Dec.  94;  Love  v.  Shartzer,  31  Cal. 
487.  See,  also,  Fenwick  v.  Gill,  38 
Mo.  510;  Marlow  v.  Adams,  24 
Ark.  109;  Griswold  v.  Bragg,  48 
Conn.  577 ;  Coney  v.  Owen,  6 
Watts,  435;  Dothage  v.  Stuart,  35 
Mo.  251 ;  Jones  v.  Carter.  12  Mass. 
314;  Howard  v.  Zeyer,  18  La.  Ann. 
407;  Steele  v.  Spruance,  22  Pa.  St. 
256;  Pope  v.  Macon,  23  Ark.  644; 


Kidd  V.  Guild,  12  N.  W.  Rep. 
(Mich.)  158;  Ormond  v.  Martin, 
37  Ala.  598;  Lynch  v.  Brudie.  63 
Pa.  St.  206.  Contra,  Nelson  v.  Al- 
len, 1  Yerg.  376.  And  see  Harris 
v.  Inhabitants  of  Marblehead,  10 
Gray,  44;  Davis'  Lessee  v.  Powell, 
13  Ohio,  308;  Society  etc.  v.  Wheel- 
er, 2  Gall.  105 ;  McCoy  v.  Grandy, 
3  Ohio  St.  463.  A  carpenter  shop 
erected  after  the  execution  of  a 
mortgage  upon  premises,  for  trade 
purposes,  and  built  of  rough  mate- 
rials, placed  upon  blocks  resting  on 
boards  put  upon  the  surface  of  the 
ground,  but  not  let  into  the  ground, 
was  held  not  to  pass  to  a  purchaser 
at  a  sale  of  the  real  estate  under 
the  mortgage:  Kelly  v.  Austin,  46 
111.  156,  92  Am.  Dec.  243.  See 
Rogers  v.  Brokaw,  25  N.  J.  Eq. 
496;  Crane  v.  Brigham,  11  N.  J.  Eq. 
29;  Randolph  v.  Gwynne,  7  N.  J. 
Eq.  88.  51  Am.  Dec.  265;  Holland 
V.  Hodson,  Law  R.  7  Com.  P.  328. 


I 


CHAP.    XXXIII.]       FIXTURES  PASSING  BY   DEED.  2291 

landlord  and  tenant.  This  is  but  following  out  the  strict 
rule  of  the  common  law,  and  in  accordance  with  the  principle 
that  when  a  stranger  erects  a  building  upon  the  land  of  an- 
other without  the  latter's  consent,  it  becomes  a  part  of  the 
land  and  he  would  occupy  the  position  of  trespasser  by  re- 
moving it.'  As  was  said  in  one  case  where  this  question  arose : 
"If  the  intention  of  Whitlock  was  to  render  the  improve- 
ment pennanent  when  erected,  there  can  be  no  ques- 
tion that  it  became  a  part  of  the  freehold,  and  no 
subsequent  change  of  intention  changed  its  character  to 
that  of  personal  property,  rendering  it  liable  to  levy 
and  sale  on  an  execution  from  a  justice  of  the  peace. 
The  intention  at  the  time  to  render  it  a  part  of  the  realty, 
fixed  its  character  beyond  all  dispute,  and  that  character  could 
not  be  changed  by  anything  short  of  its  severance  by  removal, 
or  by  an  executed  agreement  for  that  purpose.  The  mere 
change  of  the  intention  of  the  owner  cannot  have  that  effect."  ' 
Where  a  person  is  in  possession  of  land  under  a  contract 
for  its  purchase  without  the  obligation  to  pay  rent,  fixtures 
erected  by  him  cannot  be  removed  by  him  nor  sold  on  ex- 
ecution issued  against  him  as  his  personal  property.^  But  if 
there  is  an  agreement  between  the  vendor  and  purchaser, 
under  an  executory  contract  of  sale,  that  machinery  placed 
upon  the  land  shall  remain  the  personal  property  of  the  pur- 
chaser, it  does  not  become  a  part  of  the  real  estate.  After 
the  bankruptcy  of  the  purchaser,  the  vendor  cannot  compel 
the  enforcement  of  a  provision  of  the  contract  within  which 
the  purchaser  might  remove  the  machinery  in  case  he  default- 
ed in  making  payment  for  the  property,  if  the  default  was 
due  to  the  failure  of  the  vendor  to  perfect  the  title  until  after 

8  Tyler   v.    Fickett,   75    Mc.   211;  » Dooley  v.  Crist,  25  III.  551,  556, 

Seiberling  v.  Miller,  207  111.  443,  69  per  Walker,  J. 

N.   E.  800;  Union  Inv.  Co.  of  In-  ^  Seiberling    v.     Miller,    207    111. 

diana  v.  McKinney,  35  Ind.  App.  443,  69  N.  E.  800,  106  111.  App.  190. 
594,  74  N.  E.  1001. 


2292  THE  LAW  OF  DEEDS.  [CHAP.    XiXIIL 

the  expiration  of  the  time  for  performance,  and  after  the 
purchaser  was  unable  to  perfonn,  and  where  the  vendor  made 
no  claim  to  the  forfeiture  until  after  the  bankruptcy  of  the 
purchaser.'  _  __ 

§  1218.  Application  of  rule. — Applying  the  principle 
that  the  proper  rule  in  cases  of  this  kind  is  the  one  prevailing 
between  vendor  and  vendee,  the  Supreme  Court  of  Massa- 
chusetts decided  that  a  trip-hammer  firmly  attached  to  a  block 
set  in  the  ground,  the  blower  of  a  force-pump  and  its  pipes 
for  raising  water  on  the  premises,  and  shafting  fastened  to 
the  building  by  screws  and  bolts,  are  part  of  the  realty,  and 
cannot  be  removed  after  breach  of  the  bond;  but  a  portable 
steam-engine  and  boiler  capable  of  being  removed,  without 
removing  brickwork,  vises  fastened  to  a  workbench  by  screws 
and  bolts  merely,  a  planing  machine  and  anvils  not  fastened 
to  the  buildings,  a  grindstone  on  a  movable  frame,  and  an 
emery  machine  fastened  to  the  floor  with  bolts,  both  of  the 
latter  being  capable  of  removal  without  injury  to  the  build- 
ing, are  personalty,  and  may  be  removed  after  a  breach  of 
the  bond.'  ^ 

§  1219.  Reason  for  rule. — The  rule  and  the  reason  for 
it  has  thus  been  succinctly  stated  :  "Although,  in  a  certain  sense, 
a  person  occupying  land  under  a  contract  of  purchase  may  be 
said  to  be  a  tenant  of  the  owner,  still  the  analogy  does  not 
hold  good  in  all  respects.  In  one  essential  particular  it  fails. 
The  occupier  is  not  liable  to  pay  rent  to  the  owner.  It  would 
seem  to  follow  that  he  has  no  right  to  remove  fixtures  annexed 
by  him  to  the  freehold.  The  reason  why  a  tenant  is  allowed 
to  remove  structures  erected  for  purposes  of  trade  or  con- 

2  In  re  Rodgcrs  &  Hite,  143  Fed.  of   another,   under   similar  circum- 

594.  stances,  has  been  held  to  have  no 

5  INIcLaughlin  v.  Nash,   14  Allen,  right  to  remove  it:  Hemmenway  v. 

136,  92   Am.   Dec.  741.     A  person  Cutler,  51  Me.  407. 
::recting  a  barn  upon  the  real  estate 


CHAP.   XXXIII.]      FIXTURES  PASSING  BY  DEED. 


2293 


venience,  affixed  by  him  to  the  realty  during  his  tenancy,  is 
because  having  paid  as  rent  a  full  equivalent  for  the  use  of  the 
premises  as  demised  it  would  be  inequitable  to  compel  him  to 
forfeit  articles  at  the  end  of  his  term,  which  he  had  procured 
for  his  own  use  and  at  his  own  expense.  That  reason  is  whol- 
ly inapplicable  to  a  case  like  the  present.  The  occupant  has 
paid  no  equivalent  for  the  use  and  enjoyment  of  the  premises ; 
nor  is  he  compelled  to  surrender  the  estate  at  a  fixed  period 
of  time,  as  upon  the  expiration  of  a  term  demised.  He  can, 
by  fulfilling  his  contract  of  purchase,  become  the  owner  of  the 
estate,  and  enjoy  the  full  benefit  of  all  the  erections  and  im- 
provements which  he  has  made  thereon.  There  is,  therefore, 
no  reason  for  applying  to  a  case  of  this  sort  the  very  liberal 
rule  in  regard  to  fixtures  which  prevails  where  the  relation 
of  lessor  and  lessee  subsists  between  the  parties."  *  In  that 
case,  the  person  occupying  the  land,  under  an  agreement  with 
the  owner  to  purchase  it,  was  held  not  entitled  to  remove  a 
wooden  building  with  stone  foundations  placed  upon  the  land, 
the  buMding  being  used  for  a  stable  and  shoemaker's  shop. 

§  1220.  Some  illustrations. — An  agreement  was  made 
between  two  persons,  by  which  the  first,  the  owner  of  a 
parcel  of  land,  agreed  to  sell  it  to  the  second,  and  to  con- 
vey it  to  him  by  deed  when  the  latter  should  erect  a  house 
thereon ;  the  second  party  agreed  to  erect  a  house  on  the  land, 
and  on  receiving  a  deed  to  mortgage  the  property  to  the  first 
to  secure  the  purchase  money.  It  was  held  that  the  person 
occupying  the  land  under  this  agreement,  did  not,  by  erecting 
the  house,  acquire  any  property  therein,  but  it  became  a  part 
of  the  realty,  and  hence  a  mortgage  of  the  house  by  him  to  a 
third  person  before  he  obtained  a  deed  for  the  land,  con- 
veyed nothing  to  the  mortgagee.^     A  purchaser  of  a  lot  in  a 

*  Bigelow,  J.,  in  King  v.  Johnson,  ^  Milton    v.    Colby,    5    Met.    78. 

7  Gray,  239,  241 ;  Pomeroy  v.  Bell,       Says    Shaw,    C.   J.,    delivering   the 
118  Cal.  635,  50  Pac.  683.  opinion  of  the  court   (p.  81)  :  "It 


2294 


THE  LAW  OF  DEEDS.  [CHAP.    XXXllI. 


city,  holding  it  under  a  contract  of  purchase  which  contained 
clauses  of  forfeiture,  erected  a  house  upon  the  land  by  placing 
it  upon  blocks  lying  upon  the  ground ;  having  failed  to  make 
the  payments  called  for  by  the  contract,  he  sold  the  house 
to  a  person  who  removed  it  from  the  lot;  the  seller  of  the 
lot  replevied  the  house,  and  it  was  held  that  the  purchaser 
so  long  as  he  occupied  the  premises  under  his  contract,  had 
no  right  to  erect  a  building  thereon  with  intent  to  remove  it, 
that  such  intent  would  be  in  fraud  of  the  rights  of  the  vendor, 
and  that  the  purchaser  of  the  building  occupied  no  better  posi- 
tion, and  upon  a  severance  the  owner  had  the  right  of  posses- 
sion, and  might  maintain  replevin  for  its  recovery  as  long  as 
it  could  be  identified  and  was  not  permanently  attached  to 
other  land.*  For  further  illustration,  we  may  call  attention  to 
a  case  in  Massachusetts  where  a  bond  was  given  by  an  owner 


appears  to  us  that  the  effect  of  this 
agreement  was  not  that  the  build- 
ers of  the  house  were  to  have  a 
property  in  the  house  as  a  chattel; 
on  the  contrary,  it  was  to  consti- 
tute a  part  of  the  realty,  and  pass 
with  it;  and  when  the  agreement 
should  be  executed  according  to  its 
terms,  it  would  enhance  the  value 
of  the  estate  as  a  security  to  Ne- 
smith  for  the  purchase  money. 
The  general  rule  is,  that  the  erec- 
tion of  a  building  on  the  land  of 
another  makes  it  a  part  of  the  real- 
ty, and  of  course  it  becomes  the 
property  of  the  owner  of  the  soil ; 
and  it  is  only  in  virtue  of  an  ex- 
press agreement  between  the  own- 
er and  builder,  that  one  can  have  a 
separate  property  on  a  building  as 
a  chattel,  with  a  right  to  remove 
it.  The  agreement  between  these 
parties,  so  far  from  being  such  an 
agreement,  was,  in  legal  effect,  an 
agreement    that    the    building    and 


soil  should  be  united  and  held  to- 
gether as  one  tenement,  and  the 
security  of  the  builders  was  in  ijic 
personal  agreement  of  the  owner, 
by  which  they  could  require  him,  on 
complying  with  the  terms  of  the 
agreement  on  their  part,  to  convey 
the  fee  to  them,  by  which  they 
would  obtain  a  legal  title  to  the 
buildings  with  the  soil.  No  interest 
then  passed  by  Diggles'  deed  to  the 
plaintiffs;  none  in  the  building,  for 
it  was  part  of  the  realty;  and  none 
in  the  real  estate,  because  the  fee 
was  in  Nesmith." 

eOgden  v.  Stock,  34  111.  522,  85 
Am.  Dec.  332;  Davis  v.  Easley,  13 
111.  192;  Eastman  v.  Foster,  8  Met. 
19;  Poor  v.  Oakman,  104  Mass. 
309;  English  v.  Foote,  16  Miss.  444; 
Perkins  v.  Swank,  43  Miss.  349; 
Oakman  v.  Dorchester  Ins.  Co.,  98 
Mass.  57;  Christian  v.  Dripps,  28 
Pa.   St.  271. 


CHAP.    XXXIII.]      FIXTURES  PASSING  BY  DEED.  2295 

of  land  to  convey  the  same  to  a  purchaser  on  the  payment  of  a 
specified  sum.  The  vendee  erected  a  house  on  the  land,  but 
there  was  no  agreement  on  the  part  of  the  vendor  that  it 
might  be  removed.  The  vendee  paid  part  of  the  price  agreed 
upon,  and  assigned  to  his  son  for  an  inadequate  considera- 
tion the  bond  for  conveyance,  in  order  to  prevent  the  land 
from  being  levied  upon  by  his  creditors.  Some  of  the  credit- 
ors of  the  vendee  had,  however,  in  the  meantime,  attached 
the  house  and  caused  it  to  be  sold  as  personal  property, 
and  possessing  full  knowledge  of  the  facts,  they  took  a 
conveyance  of  the  land  from  the  vendor.  It  was  held  that 
before  the  assignment  of  the  bond  to  the  vendee's  son,  the 
vendee  did  not  possess  such  an  interest  in  the  land  as  could 
be  attached  or  levied  upon  by  his  creditors;  that  the  house 
built  by  him  on  the  land  could  not  be  considered  as  personal 
property,  but  must  be  treated  as  real  estate ;  and  that  his  son, 
if  he  tendered  to  the  vendor  the  balance  due  by  the  terms 
of  the  agreement,  and  demanded  a  conveyance  in  accordance 
with  the  provisions  of  the  bond,  might,  in  case  of  the  vendor's 
refusal,  maintain  a  bill  in  equity  against  him  for  a  specific 
performance.'  It  is  proper  in  this  connection  to  note  a  case 
where  a  party  in  possession  of  land  under  a  contract  of  pur- 

'  Murphy  v.  Marland,  8  Cush.  strength  of  his  own  title,  if  that  of 
575.  Shaw,  C.  J.,  delivering  the  the  plaintiff  is  void,  he  cannot  have 
opinion  of  the  court,  referring  to  this  remedy,  whether  the  defendant 
the  defense  made  by  the  defendant,  is  justifiable  in  his  course  or  not 
that  he  had  a  right  to  hold  it  from  But  the  construction  which  has  uni< 
C  the  assignee,  for  the  benefit  of  the  f ormly  been  put  on  the  statutes,  de- 
creditors  of  B,  or  some  of  them,  daring  such  conveyances  fraudu- 
and  that  he  had  in  fact  conveyed  it  lent  and  void,  is  that  they  are  void- 
to  some  of  them,  said:  "The  de-  able  only,  that  they  are  not  fraud- 
fense  assumes  that  the  assignment  ulent  per  se,  but  only  as  against 
of  this  chose  in  action  from  Peter  creditors,  that  they  are  as  good  as 
Murphy  to  his  son,  the  design  both  between  the  parties,  and  can  only 
of  assignor  and  assignee  being  in-  be  avoided  by  a  creditor,  or  by  an 
directly  to  defeat  creditors,  was  assignee  or  other  party  acting  in 
fraudulent  and  void;  and  as  every  behalf  of  a  creditor.  This  princi- 
plaintiff     must      prevail     on     the  pie   is   too  clear   to    require   many 


2296 


THE  LAW  OF  DEEDS.  [CHAP.    XXXIII. 


chase,  providing  that  if  he  failed  to  comply  with  its  terms, 
all  tools  and  machinery  placed  upon  the  land  by  him  should 
be  the  property  of  the  vendor.     A  third  party  leased  an  en- 


authorities  :  we  cite  only  one  of 
the  most  recent:  Oriental  Bank  v. 
Haskins,  3  Met.  332,  37  Am.  Dec. 
140.  In  the  case  of  Ensign  v.  Kel- 
logg, 4  Pick.  1,  already  cited,  it  is 
held  that  the  obligor  in  such  a  bond 
could  not  object,  that  the  assign- 
ment by  the  obligee  to  the  assignee 
was  voluntary  and  without  consid- 
eration; although  being  so  it  would 
be  void  as  against  creditors,  if 
creditors  could  avail  themselves  of 
it.  Then  the  question  occurs  wheth- 
er the  defense  can  be  sustained  in 
behalf  of  creditors.  Ordinarily, 
where  a  conveyance  is  alleged  to  be 
fraudulent  and  void  as  against 
creditors  attaching  or  taking  prop- 
erty on  execution,  proving  the 
fraudulent  intent  by  the  parties  to 
defeat  creditors,  will  enable  the 
creditor  to  recover.  But  the  rea- 
son is  because  the  fraud  is  usually 
charged  upon  some  conveyance  or 
alienation  of  real  or  personal  prop- 
erty, in  which  the  debtor  had  an  in- 
terest capable  in  some  form  of  be- 
ing taken,  levied  upon,  sold,  or 
otherwise  directly  reached  by  proc- 
ess of  law  for  the  payment  and  sat- 
isfaction of  the  creditors'  claims. 
But  when  the  thing  transferred  is 
such  that  by  no  process  of  law, 
trustee  attachment  or  otherwise,  it 
could  be  reached  by  a  creditor,  the 
conveyance  is  not  made  void  by 
the  statute,  and  no  creditor  can 
interfere  or  authorize  the  avoidance 
of  it.  In  the  present  case,  the 
chose  in  action  which  was  the  sub- 
ject of   conveyance   from   Murphy, 


senior  to  his  son,  had  no  such  con- 
veyance been  made,  could  not  have 
been  reached  by  process  of  law. 
The  equitable  interest  in  the  land 
stipulated  to  be  conveyed,  as  the 
debtor  had  no  legal  interest,  and  no 
equity  of  redemption,  or  such  other 
equitable  interest  as  is  made  attach- 
able by  statute,  could  not  be  levied 
on:  Howe  v.  Bishop,  3  Met  26. 
The  conveyance  did  not  create  a 
debt  due  from  Marland  to  Peter 
Murphy,  which  would  render  him 
liable  to  the  trustee  process.  Nor 
had  Peter  Murphy  any  interest  in 
the  building  which  could  be  at- 
tached as  personal  property.  That 
right  of  personal  property  in  a 
building  can  only  exist  when  a 
building  is  erected  on  the  land  of 
another  with  his  consent,  and  under 
an  express  or  an  implied  agree- 
ment that  the  builder  may  remove 
it.  It  was  so  held  in  the  case  cited 
by  the  defendant,  in  which  it  was 
also  held  that  independently  of 
contract  with  the  builder,  it  was  a 
fixture  and  would  pass  with  the 
land :  Ashmun  v.  Williams,  8  Pick. 
402.  This  is  confirmed  by  a  recent 
case  which  appears  to  be  directly 
in  point:  Milton  v.  Colby,  5  Met. 
78.  In  the  present  case,  there  was 
no  agreement  or  consent  of  the 
ow^ner  of  the  soil  that  the  building 
might  in  any  case  be  removed :  nnd 
the  builder  was  to  be  secured  in 
his  rights,  not  by  leave  to  remove 
the  building,  but  by  the  power  of 
acquiring  the  land  on  which  it 
stands.     It  is  not  for  the  defend- 


CHAP.    XXXIII. J      FIXTURES  PASSING  BY  DEED. 


2297 


gine  and  boiler  to  the  vendee,  giving  him  also  a  privilege 
of  purchase,  knowing  that  the  machinery  was  to  be  affixed 
to  the  land,  but  not  knowing  of  the  provisions  of  the  con- 
tract between  the  vendor  and  vendee.  These  articles  were 
affixed  by  the  vendee  to  the  land  in  such  a  manner  that  their 
removal  could  not  be  effected  without  destroying  the  masonry 
and  wall  to  which  they  were  affixed.  The  purchase  of  the 
land  was  not  completed  by  the  vendee,  and  he  forfeited  the 
lease  of  the  chattels;  but  the  court  decided  that  as  against 
the  vendor  these  articles  remained  the  personal  property  of 
the  party  who  leased  them  to  the  vendee.' 


ant  to  decide  at  his  discretion,  be- 
tween the  respective  claims  of  the 
assignee  and  the  creditors  of  the 
person  with  whom  he  has  contract- 
ed. He  is  bound  to  perform  his 
obligation  according  to  law ;  and 
the  establishment  of  the  rightful 
claims  of  the  one,  and  a  perform- 
ance accordingly,  will  exempt  him 
from  the  claims  of  the  other.  It 
is  said  that  giving  effect  to  the 
plaintiff's  claim  in  this  case,  will  be 
to  give  the  sanction  of  the  law  to 
a  title  obtained  by  a  fraudulent 
and  void  conveyance.  But  it  is 
only  when  a  conveyance  is  made  to 
defeat  creditors  by  a  transfer  of 
property,  which,  but  for  such  con- 
veyance, could  have  been  reached 
by  legal  process  to  satisfy  such 
debts  in  favor  of  such  creditors, 
that  the  law  holds  the  conveyance 
fraudulent ;  when  it  can  have  no 
such  effect,  the  law  does  not  hold 
it  fraudulent,  but  valid.  It  was 
suggested  on  the  part  of  the  de- 
fendant that  if  the  creditors  of 
Peter  Murphy  can  make  no  claim 
to  the  property  through  him,  they 
are  without  remedv.     To  this  it  is 


answered,  on  the  other  side,  that 
they  might  have  proceeded  against 
their  debtor  under  the  insolvent 
law,  and  that  the  assignee  would 
become  vested  with  all  the  rights  of 
the  debtor,  legal  as  well  as  equi- 
table, including  valuable  choses  in 
action,  for  the  benefit  of  all  the 
creditors.  This  certainly  was 
plausible,  and  we  do  not  at  present 
perceive  why,  if  this  course  had 
been  seasonably  adopted,  it  would 
not  have  been  effectual ;  but  of  this 
it  is  not  necessary  to  express  an 
opinion,  no  such  course  having  been 
pursued."  See,  also,  Smith  v.  Al- 
tick,  24  Ohio  St.  369;  Tabor  v. 
Robinson,  36  Barb.  483 ;  Watertown 
Steam  Engine  Co.  v.  Davis,  5  Del. 
192;  First  Parish  in  Sudbury  v. 
Jones,  8  Cush.  184;  Cooper  v. 
Adams,  6  Cush.  87;  Eastman  v. 
Foster,  8  Met.  19,  26;  Howard  v. 
Fessenden,  14  Allen,  124,  128; 
Hinckley  v.  Baxter,  13  Allen,  139. 
SHendy  v.  Dinkerhoff,  57  Cal. 
3,  40  Am.  Rep.  107,  and  cases  cited. 
The  court  said  that  what  the  rule 
would  be  if  the  vendor  occupied  the 
position  of  a  bona  fide  purchaser, 


2298 


THE  LAW  OF  DEEDS.  [CIIAP.    XXXIIL 


§  1220a.  Buildings. — Where  a  building  is  erected  by 
one  person  on  the  land  of  another,  it  is  prima  facie  a  part 
of  the  realty,  but  if  it  is  erected  with  the  understanding  that 
it  may  be  removed  when  desired,  it  is  then  not  a  part  of 
the  real  estate  but  personal  property,  and  trover  will  lie  for 
its  conversion.^  A  building  erected  on  the  land  of  another 
without  the  latter's  consent  is  presumptively  a  fixture,  though 
the  presumption  is  subject  to  rebuttal.*  But  the  building  may 
become  personal  property  if  the  parties  so  agree.^    And  where 


need  not  be  determined,  for  he  did 
not  occupy  that  position,  but  having 
put  the  vendee  in  possession,  the 
vendor  must  be  held  to  stand  in 
the  shoes  of  the  vendee,  and  the 
property  in  question  treated  as  per- 
sonalty in  his  hands  as  well  as  in 
the  hands  of  the  vendee. 

9  Smith  V.  Benson,  1  Hill,  176; 
Leland  v.  Garset,  17  Vt.  403;  Hueb- 
schman  v.  McHenry,  29  Wis.  655; 
Jenkins  v.  McCurdy,  48  Wis.  628, 
33  Am.  Rep.  841 ;  Lipsky  v.  Borg- 
man,  52  Wis.  256,  38  Am.  Rep.  735 
Dolliver  v.  Ela,  128  Mass.  557 
Taylor  v.  Collins,  51  Wis.  123 
Kimball  v.  Darling,  32  Wis.  675. 
On  land  there  was  situated  a  house 
used  as  a  residence  and  also  as  a 
saloon,  and  on  one  side  of  it,  and 
next  to  the  saloon,  was  erected  a 
wooden  structure,  used  in  connec- 
tion with  the  saloon  as  a  dancing 
hall.  The  sills  of  this  structure 
were  fastened  together  at  the  ends 
with  nails  or  spikes,  and  the  studs 
were  fastened  to  the  sills  in  the 
same  manner.  The  plates  were 
fastened  in  the  same  manner,  at 
the  top  of  the  studding,  the  sills 
and  plates  being  thirtyrtwo  feet  in 
length  and  constructed  of  two  by 
eight    or    two    by   ten    timber.     In 


some  places  the  sills  rested  on  the 
ground,  at  others  on  cedar  posts 
set  into  the  ground,  and  on  cedar 
railroad  ties  and  stones.  A  floor 
was  laid  over  the  whole  space,  and 
on  the  center  was  a  post  eight  feet 
high,  from  the  top  of  which  rafters 
extended  to  the  plates,  the  roof  be- 
ing of  brush.  In  the  space  between 
the  building  seats  twelve  feet  in 
length  were  constructed  for  the 
musicians,  upon  cross-pieces  fast- 
ened to  both  buildings  The  at- 
tached building  was  unfinished,  but 
was  intended  to  be  completed  and 
to  be  permanently  used  in  connec- 
tion with  the  main  building.  The 
attached  building  was  considered  a 
part  of  the  realty.  Lepsky  v.  Borg- 
man,  52  Wis.  256.  38  Am.  Rep.  735. 
See,  also,  Harmon  v.  Kline,  52 
Ark.  251 ;  Brown  v.  Corbin,  121 
Ind.   455. 

1  First  Parish  v.  Jones,  8  Cush. 
184;  Bonney  v.  Foss,  62  Me.  248; 
Howard  v.  Fessenden,  14  Allen, 
124;  Elwes  v.  Briggs  Gas  Co.,  L. 
R.  33  Ch.  D.  567;  Harmon  v.  Kline, 
52  Ark.  251. 

2  Howard  v.  Fessenden,  14  Allen, 
124;  Merchants'  Nat.  Bank  v.  Stan- 
ton, 55  Minn.  211,  43  Am.  St.  Rep. 
491. 


CHAP.    XXXIII.]      FIXTURES  PASSING  BY  DEED. 


2299 


the  owner  of  the  land  consents  to  the  erection,  the  right  to 
remove  it  may  be  impHed.^  Where  a  vendee  has  entered  into 
possession  under  a  contract,  a  building  of  a  permanent  char- 
acter erected  by  him  on  the  land  becomes  a  part  of  it,  and 
where  there  is  no  agreement  giving  him  the  right,  cannot 
be  removed  by  him.*  If  a  building  has  been  erected  by  one 
on  the  land  of  another  with  the  right  of  removal  by  virtue 
of  an  agreement  to  that  effect,  it  may  be  mortgaged  as  per- 
sonal property.^  Where  the  building  is  not  originally  per- 
sonal property,  it  cannot  become  such  subsequently  by  a  parol 


3  Pullen  V.  Bell,  40  Me.  314 ;  Lap- 
ham  V.  Norton,  71  Me.  83;  Osgood 
V.  Howard,  6  Me.  452,  20  Am.  Dec. 
322;  Handforth  v.  Jackson,  150 
Mass.  149;  Russell  v.  Richards,  10 
Ale.  429,  25  Am.  Dec.  254.  Said 
Mellen,  C.  J.,  speaking  of  buildings 
being  personal  property  when  so 
agreed:  "We  understand  among 
the  profession,  this  is  the  principle 
recognized  and  acted  upon  in  prac- 
tice, that  such  property  is  consid- 
ered personal,  and  is  accordingly 
always  sold  on  execution  in  the 
same  manner  as  all  other  personal 
estate  is  sold  at  auction.  Should 
we  decide  this  cause  in  opposition 
to  the  above-mentioned  principles 
and  practice,  we  should  open  a  door 
to  innumerable  frauds,  which  might 
be  effectually  committed  with  im- 
punity. A  person  might  erect  ex- 
pensive buildings  on  the  land  of  a 
friend  in  whom  he  could  confide, 
by  his  express  permission,  and  thus 
in  case  of  failure  in  business,  per- 
haps a  contemplated  or  intended 
failure,  he  would  enjoy  a  home  and 
ample  accommodations  at  the  ex- 
pense of  his  defrauded  creditors, 
for    if    the    buildin-rs    became    the 


property  of  the  owner  of  the  land, 
then  his  creditors  could  not  seize 
them  on  execution,  and  the  friend 
could  not  be  adjudged  the  trustee 
of  the  builder,  in  consequence  of 
their  standing  on  his  land,  because 
the  houses  are  neither  goods,  effects, 
nor  credits  of  the  builder" :  Os- 
good V.  Howard,  6  Me.  452,  25  Am. 
Dec.  322. 

*  Miller  v.  Waddingham,  91  Cal. 
377,  13  L.R.A.  680.  See,  also,  Fratt 
V.  Whittier,  58  Cal.  126,  41  Am. 
Rep.  251 ;  Kingsley  v.  McFarland, 
82  Me.  231,  17  Am.  St.  Rep.  473; 
Westgate  v.  Wixon,  128  Mass.  304; 
Ogden  V.  Stock,  34  111.  522,  85  Am. 
Dec.  332;  Hinkley  &  Egery  Iron 
Co.  V.  Black,  70  Me.  473,  35  Am, 
Rep.  3-+6 ;  Allen  v.  Mitchell,  13  Tex,. 
373;  Michigan  Mut.  L.  Ins.  Co.  v. 
Cronk,  93  Mich.  49;  Howard  v. 
Fessenden,  14  Allen,  124. 

5  Lanphere  v.  Howe,  3  Neb.  131; 
Smith  v.  Benson,  1  Hill,  176;  Den- 
ham  V.  Sankey,  38  Iowa,  269 ;  Dock- 
ing V.  Frazell,  34  Kan.  29;  Brown 
V.  Corbin,  121  Ind.  455;  Goodenow 
V.  Allen,  68  Me.  308;  Holt  County 
Bank  v.  Tootle,  25  Neb.  408;  Deer- 
ing  V.  Ladd,  22  Fed.  Rep.  575. 


2300  THE  LAW  OF  DEEDS.  [CIIAP.    XXXIII. 

agreement.'  Although  a  trespasser  may  believe  that  he  has 
a  valid  title  to  the  land,  buildings  erected  by  him  become  a 
part  of  the  realty.'  Where  the  same  person  owns  both  the 
land  and  buildings,  the  latter,  of  course,  are  a  part  of  the 
realty  and  pass  under  a  deed  conveying  the  land.  If  the 
grantor  desires  to  retain  the  title  to  the  building,  he  must  do 
it  by  some  reservation  in  the  deed,  or  by  an  agreement  that 
will  comply  with  the  statute  of  frauds.  He  cannot  show  by 
parol  that  a  building  was  to  be  reserved.*  If  the  owner  of 
land  takes  the  personal  property  of  another  and  attaches  it 
to  the  land  so  that  its  identity  is  not  lost,  and  so  that  it  may 
be  removed  and  used  elsewhere,  the  personal  property  does 
not  become  a  part  of  the  real  estate,  but  the  owner  may  re- 
cover it  in  replevin.^  But  if  the  owner  of  the  land  should 
build  a  house  on  his  land  with  the  materials  of  a  stranger, 
and  the  nature  of  the  property  has  become  changed,  he  is 
compelled  to  pay  only  the  value  of  the  material.^  Certain 
manufacturers  in  consideration  of  the  agreement  of  the  owner 
of  land  to  erect  a  building  on  it  and  to  convey  the  land  and 
building  to  them  agreed  to  maintain  a  factory  for  a  certain 
length  of  time  and  this  agreement  was  carried  into  effect  by 
the  owner  erecting  the  building  and  by  the  manufacturers 
placing  machinery  in  it.  but  the  appliances  were  subsequently 
sold  at  a  sheriff's  sale  under  a  judgment  against  the  manu- 
facturers. The  purchaser  at  the  sale  conveyed  his  title  to  a 
corporation,  but  as  the  title  had  never  been  conveyed  the 
court  held  that  in  the  hands  of  the  corporation  the  fixtures 

'  Aldrich  v.  Husband,  131   Mass.  425 ;  Lee  Snyder  v.  Vaux,  2  Rawle, 

480;   Parsons  v.   Copeland,  38  Me.  423,  21  Am.  Dec.  466;   Silsbury  v. 

537.  McCoon,  3  N.  Y.  379,  53  Am.  Dec. 

■^  Honzik    v.    Delaglise,    65    Wis.  307;  Eisenhaiier  v.  Quinn,  36  Mont. 

494,  56  Am.  Rep.  634.  268,   14  L.R.A.(X.S.)   435,  93   Pac. 

8  Leonard  v.   Clough,   133   N.   Y.  38. 

292,  16  L.R..A..  305 ;  Muir  v.  Jones,  i  Peirce  v.  Goddard,  22  Pick.  559, 

23  Or.  332.  23  Am,  Dec  764. 

9  Gill    V.    De    Armant,   90    Mich. 


CHAP,    XXXIII.]      FIXTURES  PASSING  BY  DEED.  2301 

were  a  part  of  the  freehold  to  the  same  extent  as  if  the 
corporation  had  itself  attached  the  property  to  the  freehold 
under  the  contract  of  purchase  and  that  without  the  consent 
of  the  owners  of  the  legal  title  the  machinery  could  not  be 
removed.^  The  general  rule  is  that  a  purchaser  who  has 
erected  a  structure  on  land  while  in  possession,  but  who  has 
not  yet  obtained  title  cannot  remove  it  without  the  owner's 
consent.' 

§  1221.  Word  "fixtures"  in  deed. — The  question  as 
to  whether  certain  articles  pass  by  the  conveyance  may,  in 
some  instances,  be  determined  by  its  language.  In  one  mort- 
gage the  property  described  was  "all  of  the  stock  of  goods 
and  merchandise  now  in  the  store."  In  a  subsequent  mort- 
gage drawn  by  the  same  person,  the  property  described  was 
"all  of  the  stock  of  goods  and  merchandise  now  in  the  store, 
and  fixtures."  The  court  held  that  the  fixtures  were  not  in- 
cluded in  the  first  mortgage.*  Where  the  term  "fixed  machin- 
ery" was  used,  a  blower  pipe,  by  which  air  was  conveyed  from 
a  blower  to  a  forge,  both  of  the  latter  being  permanently 
fixed  in  their  places,  was  regarded  as  included  by  the  term 
used.^  Real  estate  described  by  metes  and  bounds  was  con- 
veyed for  a  certain  sum,  and  by  a  bill  of  sale  executed  at 
the  same  time  certain  articles  were  sold.  The  vendor  took 
back  a  mortgage  on  the  real  estate  which  was  described  in 
the  same  manner  as  in  the  deed,  for  security  for  the  payment 

*  Seiberling  v.  Miller,  207  111.  443,  As  to  buildings  erected  on  another's 

69  N.  E.  800.  land   by   permission,    see    Salley   v. 

3  Union    Ins.    Co.    v.    McKinney,  Robinson,  96  Me.  474,  52  Atl.  930, 

35   Ind.  App.  594,  74  N.  E.   1001;  90  Am.  St.  Rep.  410;  Ingalls  v.  St. 

Pomeroy  v.  Bell,   118  Cal.  635,  50  Paul  etc.  R.  Co.,  39  Minn.  479,  12 

Pac.  683.     As  to  buildings  erected  Am.  St.  Rep.  676. 

by  mistake  on  the  land  of  another,  *  In    re    Eldridge,   4    Nat.    Bank, 

see  Button  v.  Ensley,  21  Ind.  App.  Reg.  498,  2  Biss.  362. 

46,  69  Am.  St.  Rep.  340;  Atchison  5  Alvord    Carriage    Mfg.    Co.    v. 

etc.  R.  Co.  V.  IMorgan,  42  Kan.  23,  Gleason,  36  Conn.  86. 
4  L.R.A.  284,  16  Am.  St.  Rep.  471. 


2302  THE  LAW  OF  DEEDS.  [CHAP.    XXXIII. 

of  the  part  of  the  purchase  money  remaining  unpaid.  The 
vendees  afterward  executed  a  chattel  mortgage  on  the  prop- 
erty embraced  in  the  bill  of  sale,  and  the  court  held  that  the 
real  estate  mortgage  affected  only  the  property  conveyed  by 
the  deed;  inasmuch  as  the  deed  and  bill  of  sale  were  parts 
of  one  transaction,  each  must  be  considered  as  intended  to 
perform  its  appropriate  function  in  the  sale.^  The  question 
is  one  of  interpretation,  and  the  language  is  to  be  construed 
as  is  the  language  of  other  contracts^  An  owner  of  a  hotel 
contracted  to  sell  the  same  "and  the  appurtenances  and  im- 
provements thereunto  belonging,"  the  plaintiff  reserving, 
among  other  things,  the  right,  within  a  specified  time  after 
delivery  of  possession,  to  remove  from  the  upper  rooms  of 
the  hotel  his  "furniture,  carpets,  and  pictures,  but  none  of 
the  permanent  fixtures  or  appurtenances  to  said  property 
shall  be  removed."  The  vendees  having  subsequently  paid 
the  purchase  money,  received  from  the  vendor  possession 
and  a  deed  which  described  the  property  as  it  had  been  de- 
scribed in  the  contract  of  sale,  and  which  also  contained  a 
recital  that  it  had  been  made  in  pursuance  of  the  contract 
of  sale,  and  subject  to  the  terms,  conditions,  and  reserva- 
tions contained  therein.  Both  at  the  time  of  the  execution  of 
the  agreement  and  the  subsequent  deed,  certain  gas-fixtures, 
consisting  of  chandeliers,  globes,  brackets,  burners,  pendents, 

•  Fortman  v.  Goepper,  14  Ohio  5  Barn.  &  Adol.  715;  Begbie  v. 
St.  558.  And  see  Folsom  v.  Moore,  Fenwick,  Law  R.  8  Ch.  1075,  24 
19  iMe.  252.  But  see  McRea  v.  L.  T.,  N.  S.,  58;  Farrar  v.  Stack- 
Central  Nat.  Bank,  50  How.  Pr.  pole.  6  Me.  154,  19  Am.  Dec.  201. 
51.  And  see,  also,  Potts  v.  New  Jersey 

'For  particular  instances  of  con-  Arms  Co.,  17  N  .J.  Eq.  404;  Teaff 

.struction,   see    Martin    v.    Cope,    28  v.  Hewitt.   1  Ohio  St.  536,  59  Am. 

N.  Y.   180;   Hoskin   v.   Woodward.  Dec.  634;  Wright  v.  Chestnut  Hill 

45  Pa.  St.  42;   Hancock  v.  Jordan.  Iron  Ore  Co.,  45  Pa.  St.  475;  Haley 

7  Ala.  448,  42  Am.  Dec.  600;  Met-  v.  Hammersley.  3  We  Gex,  F.  &  J. 

ropolitan  etc.  Society  v.  Brown,  26  587,    30    Law    J.    Ch.    771 ;    Quinby 

Beav.   454,   S   Jur.,    N.   S.,   378.   28  v.    Manhattan    Cloth    etc.    Co.,    24 

Law  J.  Ch.  581;  Hare  v.  Horton,  N.  J.  Eq.  260. 


CHAP.    XXXIII.]       FIXTURES   PASSING  BY  DEED.  '  2303 

etc.,  a  kitchen  range  with  boiler  attached,  a  patent  water- 
fiUer,  tanks,  and  mosquito  screens,  were  attached  to  the  prop- 
erty conveyed.  The  vendor,  within  the  time  specified  in  the 
contract  of  purchase,  demanded  the  privilege  of  removing 
these  articles  from  the  hotel.  The  demand  was  refused,  and 
he  commenced  an  action  for  their  recovery.  The  court  held 
that  these  articles  passed  by  the  deed  to  the  grantee  as  ap- 
purtenances.^ But  a  deed  conveying  land,  "with  all  the  build- 
ings thereon  and  certain  property  connected  with  or  situated 
in  or  about  the  premises,"  and  enumerating  specific  fixtures 
and  personal  property,  and  conferring  the  privilege  upon  the 
grantor  to  remove  within  a  specified  time  "all  property  not 
specifically  conveyed"  by  the  deed,  does  not  convey  trade 
fixtures  which  are  not  specified.' 

§  1222.     Contract  of  purchase — Payment  of  rent — A 

contract  of  purchase  provided  that  the  purchaser  was  en- 
titled to  remain  in  possession,  and  upon  the  payment  of  a 
specified  sum  with  interest  was  to  obtain  a  deed.  If  he  made 
a  default,  he  was  to  be  considered  a  tenant  at  will.  It  was 
decided  that  while  such  purchaser  might  for  some  purposes 
be  regarded  an  equitable  mortgagor,  that,  as  a  general  rule, 
the  parties  under  such  a  contract  occupied  toward  each  other 
the  relation  of  vendor  and  vendee,  and  the  latter  was  not  en- 

8Fratt  V.  Whittier,   58  Cal.   126,  upon   the   vendor   executed   an   in- 

41   Am.  Rep.  251.  strument  reciting  that  he  had  sold 

'Kirch  V.  Davies,  55  Wis.  287.  the  premises  with  the  clause  "per- 
Where  a  stock  yard  with  buildings  sonal  property  in  and  about  the 
and  appurtenances  were  sold  and  buildings  is  to  be  considered  as 
a  dispute  arose  as  to  whether  cer-  fixtures."  The  court  held  that  cer- 
tain property  passed  under  the  deed,  tain  rails  not  on  the  premises  and 
a  stipulation  was  entered  into  far  removed  from  the  buildings  and 
whereby  the  controversy  was  sub-  tracks,  the  existence  of  which  was 
mitted  to  the  court  for  arbitration.  unknown  to  the  vendee  did  not  pass 
A  compromise  was  made  reciting  under  the  agreement:  Alper  v. 
that  "all  of  the  property  in  and  Tormey,  82  Pac.  1063,  1  Cal.  App. 
about  said  premises  shall  pass  as  634. 
fixtures  with  said  realty."     There- 


2304  THE  LAW  OF  DEEDS.  [CHAP.    XXXni. 

titled  to  remove  from  the  premises  any  annexation  to  them 
of  a  substantial  and  permanent  character.  Speaking  of  the 
grounds  for  the  existence  of  this  rule,  the  court  observed: 
"We  apprehend  the  true  reason  why  a  purchaser,  before  the 
completion  of  the  contract,  has  no  authority  to  remove  im- 
provements which  he  may  have  placed  upon  the  land,  is  not 
because  he  is  a  mortgagor,  but  because  the  law  presumes 
they  were  annexed  with  the  design  of  being  permanent.  The 
exception  in  favor  of  trade  fixtures  is  made,  because  the  an- 
nexations are  supposed  to  be  accessory  to  the  calling  of  the 
tenant,  and  not  to  the  land.  That  they  are  made,  not  with 
the  design  of  being  permanent,  but  of  being  severed  at  the 
end  of  the  term.  Whilst  with  the  purchaser  the  presumption 
is  that  they  are  made  with  the  design  of  their  permanent  en- 
gagement in  connection  with  the  land,  and  as  an  accessory 
to  it.  He  makes  them  in  view  of  their  becoming  his  when 
he  shall  have  acquired  the  absolute  ownership  of  the  land 
by  conveyance.  But  until  that  time  he  has  only  the  same 
right  to  them  which  he  has  to  the  freehold.  In  any  event, 
the  doctrine  seems  to  be  too  well  settled  to  be  now  dis- 
turbed." * 

§  1223.  Question  of  intent  considered. — The  intention 
with  which  a  chattel  is  attached  to  the  freehold  should  al- 
ways be  looked  to  in  determining  whether  it  has  become  a 
fixture  or  not.  The  intention  with  which  the  annexation 
was  made  cannot,  however,  be  said  to  afford  anything  like  a 
conclusive  reason  for  considering  whether  the  chattel  has 
lost  or  still  retains  its  character  as  personalty.  It  is  a  cir- 
cumstance entitled  to  weight,  and  that  it  all.  Where  there 
has  been  no  annexation,  either  actual  or  constructive,  the 
• 
1  Smith  V.  Moorc,  26  111.  392,  393,  319;  Boone  v.  Chiles,  10  Peters, 
considering  and  correcting  the  opin-  224;  Lapham  v.  Norton,  71  Me.  83; 
ion  in  the  same  case  in  24  111.  512.  Westgate  v.  Wixon,  128  Mass.  304. 
See  Raymond  v.  White,  7  Cowen, 


CHAP.    XXXin.]      FIXTURES  PASSING  BY  DEED.  2305 

mere  intention  to  attach  personalty  is  not  sufficient  to  convert 
it  into  real  estate.     Thus,  a  purchaser  at  a  sheriff's  sale  of  a 
rolling  mill  is  not  entitled,  as  a  part  of  the  realty,  to  rolls 
cast   for  the  mill,   paid   for  and   delivered  at   the  mill,   but 
which  remained  there  for  more  than  two  years  without  being 
turned  or  finished  off  or  put  into  the  mill.     "The  test  ques- 
tion is,  Were  they  elementary  parts  of  the  mill  at  the  time 
of  the  sale?    And,  as  a  matter  of  fact,  it  is  quite  plain  that 
they  were  not;  for  the  mill  had  always  run  without  them. 
No  doubt  they  were  intended  to  be  made  part  of  the  mill, 
but  we  do  not  see  how  we  can  take  the  intention  without 
fact,  in  order  to  declare  what  constitutes  the  mill.     If  we  do, 
then  the  sale  of  a  half-built  or  half-ruined  house  would  in- 
clude all  the  materials  provided  for  its  completion  or  repair. 
A  very  provident  man  is  quite  sure  to  have  materials  on  hand 
which  he  sees  will  sometime  be  necessary  for  the  repair  of 
his  works,  or  for  supplying  deficiencies  in  them ;  but  his  hav- 
ing them  with  this  intention  does  not  make  them  constituent 
parts  of  his  works.     Thus,  he  will  provide  extra  saws  for  a 
sawmill,  or  bolting  cloth  for  a  flour  mill,  or  extra  castings  for 
the  running  gear,  or  lumber,  nails,  screws,  and  other  materials 
to  make  improvements  or  repairs;  but  this  does  not  convert 
personal  into  real  property,  so  long  as  the  fact  remains  that 
they  are  not  yet  made  constituent  elements  of  the  mill  or 
other  structure.     That  fact  we  can  ascertain  and  define  with 
reasonable  certainty,  but  we  can  have  no  measure   for  the 
ever  varying  degrees  of  prudent  forethought.     And  if  mere 
intention  could  affix  such  articles  to  the  realty,  then  a  mere 
change  of  intention  would  unfix  them,  or  prevent  their  be- 
coming affixed,  and  we  should  thus  be  without  any  rule  at 
all  to  guide  us.     Besides,  it  is  rather  a  contradiction  in  terms 
to  say,  at  the  same  time,  that  they  are  parts  of  the  structure, 
and  are  intended  to  he  made  so."  ^    If  mill  saws  have  never 

2  Johnson  V.  Mehafifey,  43  Pa.  St.       C   J,   Mundine   v.   Pauls,  28  Tex. 
308,  82  Am.  Dec.  568;  per  Lowrie,       Gv.  App.  46,  66  S.  W.  254 
Deeds,  VoL  II.— 145. 


2306 


THE  LAW  OF  DEEDS. 


[chap.   XXXIIL 


been  attached  to  the  mill,  or  used  in  it,  the  fact  that  the 
owner  had  purchased  them  for  the  purpose  of  using  them  in 
his  mill,  and  kept  them  there  for  over  a  year,  will  not  con- 
stitute them  fixtures  so  as  to  pass  as  fixtures  with  the  mill.' 

§  1224.  Same  subject,  continued. — Where  a  grantor 
had  hauled  posts  and  timber  to  his  farm,  it  was  decided 
that  his  simple  intention,  formed  before  the  sale  of  the  farm, 
to  erect  the  posts  into  a  fence,  and  the  timber  into  a  granary, 
was  not,  in  the  absence  of  any  effort  to  do  so,  sufficient  to 


'  Burnside  v.  Twitchell,  43  N.  H. 
390.  But  the  court  held  the  saws 
actually  attached  to  the  mill,  with- 
out any  intention  of  removing 
them,  became  a  part  of  the  realty. 
Sargent,  J.,  in  the  course  of  the- 
opinion,  said :  "As  to  the  sixteen 
saws  never  used,  they  cannot  be 
said  to  have  been  so  affixed.  They 
were  never  set  in  the  mill  or  used 
there,  or  in  any  way  attached  to 
it,  or  any  part  of  it.  The  mere 
fact  that  they  were  purchased  with 
the  intention  to  be  used  there  is 
not  sufficient  to  make  them  fixtures. 
If  they  had  been  once  affixed,  and 
had  been  taken  out  to  repair  or  to 
file,  while  the  others  were  at  work 
in  their  places,  the  case  would  be 
different,  for  they  would  none  the 
less  be  parts  of  the  mill  when  thus 
removed  for  a  temporary  purpose 
than  when  in  actual  use.  Articles 
once  affixed  and  used  in  such  a  way 
as  to  become  parts  of  the  freehold, 
though  disannexcd  at  the  time  of 
the  sale  for  a  temporary  purpose, 
still  pass  by  the  conveyance  of  the 
real  estate:  Despatch  Line  of 
Packets  v.  Bellamy  Mfg.  Co.,  12 
N.  H.  232,  37  Am.  Dec.  203 ;  Lath- 


rop  v.  Blake,  23  N.  H.  66,  and  cases 
cited.  But  we  think  that  the  saws 
that  had  been  set  and  used  in  the 
mill  for  a  year  or  more  (and  as 
long  as  it  would  seem  as  the  mill 
was  used),  while  thus  in  use,  were 
as  much  a  part  of  the  mill  as  the 
water  wheel  or  the  carriage.  They 
were  made  fast  to  portions  of  the 
mill  by  bolts  or  keys,  or  in  some 
way,  depending  somewhat  upon 
whether  they  were  circular  or  up- 
right saws,  which  the  case  docs  not 
show.  Machines  and  other  articles 
essential  to  the  occupation  of  a 
building,  or  to  the  business  carried 
on  in  it,  and  which  are  affixed  or 
fastened  to  the  freehold  and  used 
with  it,  partake  of  the  character  of 
real  estate,  become  part  of  it,  and 
pass  by  a  conveyance  of  the  land. 
Nor  does  so  much  depend  upon  the 
character  of  the  fastening,  whether 
it  be  slight  or  otherwise,  as  does 
upon  the  nature  of  the  article  and 
its  use  as  connected  with  the  use 
of  the  freehold :  Despatch  Line  v. 
Bellamy  Mfg.  Co.,  12  N.  H.  232, 
233,  ?>7  Am.  Dec.  203.  and  cases 
cited."  See  ficndy  v.  Dinkcrhoff, 
57  Cal.  3,  40  Am.  Rep.  107. 


CHAP.    XXXIII.]      FIXTURES  PASSING  BY  DEED.  2307 

convert  the  property  into  realty,  and  that,  therefore,  the  posts 
and  timber  did  not  pass  to  the  purchaser.*  When  an  article 
has  become  permanently  affixed  to  the  freehold  and  acquired 
the  nature  of  a  fixture,  a  mere  intention  on  the  part  of  the 
owner  to  remove,  unaccompanied  by  any  acts  showing  such 
an  intention,  cannot  convert  it  again  into  personalty.  The 
owner  possesses  the  undoubted  power  of  severing  any  article 
from  the  realty,  and  making  it  personalty.  But  where  this 
has  not  been  practically  accomplished,  a  purchaser  is  entitled 
by  his  deed  to  everything  connected  with  the  freehold  in  a 
fixed  and  permanent  manner.  To  recognize  any  other  rule 
would  open  the  door  to  the  perpetration  of  the  greatest  frauds. 
Any  rule  of  a  different  character  would  make  the  unexpressed 
will  of  the  owner  the  only  guide,  and  in  every  case  the 
question  as  to  what  articles  passed  by  a  deed  would  be  in- 
volved in  inextricable  confusion.^  And  testimony  is  inad- 
missible to  show  a  secret  and  unaccomplished  intention  of 

*Cook  V.  Whiting,  16  III.  480.  168,  plaintiff  was  in  possession  of 
See  Manchester  Mills  v.  Rundlett,  certain  mining  claims  under  con- 
23  N.  H.  271;  Tripp  v.  Armitage,  tract  of  purchase  by  installments 
4  Mees.  &  W.  687 ;  s.  c.  8  Law  J.  and  to  develop  the  claims,  his  rights 
(N.  S.)  Ex.  107;  Johnson  v.  Hunt,  to  be  forfeited  upon  failure  to  per- 
il Wend.  135;  Conklin  v.  Parsons,  form  any  condition  of  the  contract. 
1  Chand.  240;  s.  c.  2  Finn.  264;  Rip-  Plaintiff  installed  a  hoisting  engine 
ley  V.  Paige,  12  Vt.  353;  Peck  v.  and  air  compressor  which  were  at- 
Batchelder,  40  Vt.  233,  94  Am.  Dec.  tached  to  a  log,  also,  a  boiler  which 
392;  Hedge's  case,  1  Leach  Cr.  was  set  in  a  stone  foundation,  and 
Law,   240;    Ewell   on   Fixtures,   39.  a  temporary  shed  was  built  to  pro- 

5  Tate  V.  Blackburne,  48  Miss.  1 ;  tect     the     machinery.       These     im- 

Bratton  v.   Clawson,  2   Strob.  478.  provements  were  made  in  order  to 

See,  also,  Snedeker  v.  Warring,  12  prospect    the    claims    and    to    de- 

N.   Y.   178;   Rogers   v.  Brokaw,  25  termine  whether  he  would  be  justi- 

N.  J.  Eq.  496;  Treadway  v.  Sharon,  tied  in  making  further  expenditures 

7  Nev.  37;   Noble  v.   Sylvester,  42  or  improvements.     They  were  held 

Vt.    146;    Selger    v.    Pettit,    V   Pa.  not  to  be  fixtures   as   between   the 

St.  437;  Lord  v.  Detroit  Sav.  Bank,  vendor    and    vendee    as    an    inten- 

93  N.  W.   1063,  9  Detroit  Leg.  N.  tion  not  to  permanently  annex  them 

706,  132  Mich.  510.    In  Gasaway  v.  was  shown. 
Thomas,    56    Wash.    11,    105    Pac 


2308 


THE  LAW  OF  DEEDS. 


[CKAP.    XXXIIl, 


the  grantor  for  the  purpose  of  controlhng  the  facts  and  cir- 
cumstances determined  by  the  law  itself.® 

§  1224a.  Evidence  of  conversations. — Still  where,  ow- 
ing to  the  conflicting  evidence  as  to  the  movable  character 
of  certain  articles  claimed  as  fixtures,  there  exists  a  doubt 
as  to  whether  the  owner  intended  that  they  should  be  moved 
to  another  tract,  evidence  of  conversations  had  with  him 
showing  his  intention  is  admissible.'  And  in  all  cases,  the 
intention,  when  clearly  ascertained,  with  which  an  article 
has  been  attached  to  the  realty  is  entitled  to  much  considera- 
tion, and  in  many  cases  has  been  the  controlling  circum- 
stance by  which  the  question  as  to  whether  it  should  be  treated 
as  a  fixture  has  been  decided.* 


«Wadleigh  v.  Janvrin,  41  N.  H. 
503,  n  Am.  Dec.  780;  Bemis  v. 
First  Nat.  Bank,  63  Ark.  625,  40 
S.  W.  127.  Where  machinery  may 
be  removed  from  a  building  with- 
cut  damage  to  the  remainder  of  the 
property,  the  intent  of  the  parties 
is  controlhng:  Harris  v.  Hackley, 
86  N.  W.  389,  127  Mich.  46,  8 
Detroit  Leg.  N.  230.  Also,  see 
Palmateer  v.  Robinson,  38  Atl.  957, 
60  N.  J.  Law,  433.  A  chattel  mort- 
gage on  fixtures  given  concurrently 
with  a  real  estate  mortgage  of  the 
land  to  which  the  fixtures  are  at- 
tached is  not  conclusive  evidence 
of  an  intent  that  they  should  not 
be  permanently  attached :  Studley 
V.  Ann  Arbor  Savings  Bank.  112 
Mich.  181,  70  N.  W.  426;  Home- 
stead Land  Co.  v.  Becker,  96  Wis. 
206,  71  N.  W.  117.  The  intention 
to  make  the  article  a  permanent 
fixture  should  plainly  appear : 
Weathersby  v.  Sleeper,  42  Miss.  42 
Miss.  732;  Cole  v.  Roach,  ^l  Tex. 
413;  Teaff  v.   Hewitt,  1   Ohio  St. 


511,  IZZ,  59  Am.  Dec.  634;  Hunt  v. 
Mullanphy,  1  Mo.  508,  14  Am.  Dec. 
300;  Fortman  v.  Goepper,  14  Ohio 
St.  558;  Hill  v.  Went  worth,  28  Vt. 
428;  Capen  v.  Pcckham,  35  Conn. 
88,  95.  But  the  intention  to  make 
a  permanent  annexation  may  be 
presumed  from  the  permanent  im- 
provement to  the  freehold  effected 
thereby.  See  Wilde  v.  Waters,  16 
Com.  B.  637;  Brearley  v.  Cox,  24 
N.  J.  L.  287;  Potter  v.  Cromwell, 
40  N.  Y.  287,  100  Am.  Dec.  485; 
Lancaster  v.  Eve,  5  Com.  B.,  N.  S., 
717;  Tifft  V.  Horton,  53  N.  Y.  377, 
13  Am.  Rep.  537 ;  Holland  v.  Hodg- 
son, Law  R.  7  Com.  P.  328;  Bald- 
win V.  Walker,  21  Conn.  168;  Og- 
den  V.  Stock,  34  III.  522,  85  Am. 
Dec.  332.  See,  also.  Smith  v. 
Moore,  26  111.  394;  Huebschmann 
V.  McHenry,  29  Wis.  655. 

'Benedict  v.  Marsh,  127  Pa.  St. 
309. 

*  Despatch  Line  v.  Bellamy  Mfg. 
Co.,  12  N.  n.  205,  37  Am.  Dec. 
203;  Langdon  v.  Buchanan,  62  N. 


CHAP.    XXXIII.]       FIXTURES   PASSING  BY  DEED. 


2309 


§  1225.  Gas-fixtures. — The  weight  of  authority  in  this 
country  is  to  the  effect  that  gas-fixtures  screwed  on  to  the 
gaspipes  of  a  building  are  chattels,  and  do  not  pass  by  a 


IT.  257;  Cavis  v.  Beckford,  62  N.  H 
229;  Schaper  v.  Bibb,  71  Md.  145 
Stevens  v.  Rose,  69  Mich.  259 
Padgett  V.  Cleveland,  33  S.  C.  339 
National  Bank  v.  North,  160  Pa 
St.  303 ;  IMaguire  v.  Park,  140  Mass 
21 ;  Hopewell  Mills  v.  Taunton  Sav. 
Bank,  150  Mass.  519,  6  L.R.A.  249, 
15  Am.,  St.  Rep.  235;  Southbridge 
Sav.  Bank  v.  Exter  Machine 
Works,  127  Mass.  542;  McRea  v. 
Central  Nat.  Bank,  66  N.  Y.  489; 
Turner  v.  Wentworth,  119  Mass. 
459;  Peet  v.  Dakota  etc.  Ins.  Co., 
1  S.  D.  462;  Ottumwa  Woollen 
Mills  Co.  v.  Hawley,  44  Iowa,  57, 
24  Am.  Rep.  719 ;  Allen  v.  Mooney, 
130  Mass.  155;  Rogers  v.  Prattville 
Mfg.  Co.,  81  Ala.  483,  60  Am.  Rep. 
171;  Tillman  v.  De  Lacy,  80  Ala. 
103;  Aldine  Mfg.  Co.  v.  Barnard, 
84  Mich.  632;  Ferris  v.  Quimby,  41 
Mich.  202;  Smith  Paper  Co.  v. 
Servin,  130  Mass.  511;  Hill  v. 
National  Bank,  97  U.  S.  450,  24 
L.  ed.  1051 ;  Hubbell  v.  East  Cam- 
bridge Bank,  132  Mass.  447,  42  Am. 
Rep.  446;  Manwaring  v.  Jenison,  61 
Mich.  117;  Smith  v.  Blake,  96  Mich. 
542;  Crippen  v.  Morrison,  13  Mich. 
23;  Hinkley  E.  Iron  Co.  v.  Black, 
70  Me.  473,  35  Am.  Rep.  346 ;  Quin- 
by  V.  Manhattan  etc.  Co.,  24  N.  J. 
Eq.  460;  Stevens  v.  Rose,  69  Mich. 
259;  Morrison  v.  Berry,  42  Mich. 
389,  36  Am.  Rep.  446;  Wheeler  v. 
Bedell,  40  Mich.  693;  Robertson  v. 
Corsett,  39  Mich.  W ;  Fratt  v. 
Whittier,  58  Cal.  126,  41  Am.  Rep. 
251 ;  Lavenson  v.  Standard  Soap 
Co.,  80  Cal.  245,  13  Am.  St.  Rep. 


147 ;  Foote  v.  Gooch,  96  N.  C.  265, 
60  Am.  Rep.  411;  Benedict  v. 
Marsh,  127  Pa.  St.  309;  Ege  v. 
Kille,  84  Pa.  St.  333;  Morris'  Ap- 
peal, 88  Pa.  St.  368;  Tolles  v.  Win- 
ton,  63  Conn.  440;  Fifield  v.  Far- 
mers' Nat.  Bank,  148  111.  163,  39 
Am.  St.  Rep.  166;  Harmony  Build- 
ing Assn.  V.  Berger,  99  Pa.  St.  320; 
Hill  V.  Sewald,  53  Pa.  St.  271,  91 
Am.  Dec.  209;  Harrisburg  Electric 
Light  Co.  V.  Goodman,  129  Pa.  St. 
206;  New  Chester  Water  Co.  v. 
Holly  Mfg.  Co.,  3  U.  S.  App.  264, 
3  C.  C.  A.  399,  53  Fed.  Rep.  19; 
Capen  v.  Peckham,  35  Conn.  88; 
Stockwell  V.  Campbell,  39  Conn. 
362,  12  Am.  Rep.  393 ;  Alvord  Car- 
riage Mfg.  Co.  V.  Gleason.  36  Conn. 
86;  Meigs'  Appeal,  62  Pa.  St.  28,  I 
Am.  Rep.  372;  Seeger  v.  Pettit,  11 
Pa.  St.  437,  18  Am.  Rep.  452 ;  Vail 
V.  Weaver,  132  Pa.  St.  363,  19  Am. 
St.  Rep.  598;  Benedict  v.  Marsh, 
127  Pa.  St.  309;  Hill  v.  Wentworth, 
28  Vt.  428;  Cherry  v.  Arthur,  5 
Wash.  St.  787;  Binkley  v.  Forkner, 
117  Ind.  176,  3  L.R.A.  33;  Eaves 
V.  Estes,  10  Kan.  314,  15  Am.  Rep. 
345;  Jones  v.  Bull,  85  Tex.  136; 
Atchison  etc.  Ry.  Co.  v.  Morgan. 
42  Kan.  23,  4  L.R.A.  284,  16  Am. 
St.  Rep.  471 ;  Docking  v.  Frazell, 
38  Kan.  420;  Walker  v.  Flouring 
Mill  Co.,  70  Wis.  92;  Taylor  v. 
Collins,  51  Wis.  123;  Arnold  v. 
Crowder,  81  111.  56,  25  Am.  Rep. 
260;  Fletcher  v.  Kelly,  88  Iowa, 
475,  21  L.R.A.  347;  Johnson  v. 
Mosher,  82  Iowa,  29;  Elliott  v. 
Wright,  30  Mo.  App.  217;  Harkey 


2310 


THE  LAW  OF  DEEDS. 


[chap,  xxxin. 


deed  of  the  premises.  "Gaspipes  which  run  through  the 
walls  and  under  the  floors  of  a  house  are  permanent  parts 
of  the  building,  but  the  fixtures  attached  to  these  pipes  are 
not.  They  are  not  permanently  annexed,  but  simply  screwed 
on  projections  of  the  pipes  from  the  walls  left  for  that 
purpose,  and  can  be  detached  by  simply  unscrewing  them."  ' 
And  as  these  articles  are  considered  mere  personal  property, 
they  will  not  pass  to  a  purchaser  by  a  sheriff's  deed  made 
upon  the  sale  of  real  estate.*  But  in  some  courts,  the  view 
is  taken  that  the  gasaliers  are  a  part  of  the  gaspipes,  and 
being  necessary  to  the  practical  enjoyment  of  the  gaspipes, 
should  be  classed  as  fixtures.''  But  the  pipes  upon  which 
the  fixtures  are  screwed  do  not  pass  by  a  deed  as  fixtures.^ 


V.  Cain,  69  Tex.  146;  Willis  v.  Mor- 
ris, 66  Tex.  628,  59  Am.  Rep.  634; 
Moody   V.   Aiken,   50  Tex.   65. 

9  McKeage  v.  Hanover  Fire  Ins. 
Co.,  81  N.  Y.  38,  40,  37  Am.  Rep. 
471,  per  Rapallo,  J ;  Shaw  v.  Lenke, 
1  Daly,  487;  Vaughen  v.  Haldc- 
man,  33  Pa.  St.  522,  75  Am.  Dec. 
622;;  Montague  v.  Dent.  10  Rich. 
135,  67  Am.  Dec.  572;  Rogers  v. 
Crow,  40  Mo.  91,  93  Am.  Dec.  299. 
In  Shaw  v.  Lenke,  supra,  Brady,  J., 
said:  "The  adjustment  of  the 
bracket  or  chandelier  to  the  gaspipe 
is  not  such  actual  annexation  to  the 
freehold  as  is  contemplated  by  law. 
The  fixture  itself,  though  employed 
for  a  useful  purpose,  and  often 
highly  ornamental,  is  not  indispen- 
sable to  the  enjoyment  of  the  realty. 
It  forms  no  part  of  the  soil  by  an- 
nexation, actual  contact,  or  other- 
wise. It  is  not  fastened  to  the  wall, 
and  it  can  be  removed  without  in- 
jury either  to  the  wall,  freehold,  or 
pipe  to  which  it  is  attached.  In 
addition  to  this,  it  may  be  said  with 
propriety    that    it    has    become    by 


usage  and  general  concession  as 
much  an  article  of  furniture  as  a 
mirror  or  carpet,  although  not  so 
universally  owned."  See,  also, 
Jarcchi  v.  Philharmonic  Society,  79 
Pa.  St.  403,  21  Am.  Rep.  78;  Townc 
V.  Fiske,  127  Mass.  125,  34  Am. 
Rep.  353;  Lawrence  v.  Kemp,  1 
Ducr,  363;  Heysham  v.  DeUre,  89 
Pa.  St.  506;  Guthrie  v.  Jones,  108 
Mass.  191 ;  Seeger  v.  Petlie,  77  Pa. 
St.  437,  18  Am.  Rep.  452;  Chapman 
V.  Union  Mut.  L.  Ins.  Co.,  4  111. 
App.  29;  Hays  v.  Doane,  11  N.  J. 
Eq.  84.  But  see  contra,  Johnson  v. 
Wiseman,  4  Met.  (Ky.)  357,  83 
Am.  Dec.  475. 

1  Vaughen  v.  Haldeman,  33  Pa. 
St.  522,  75  Am.  Dec.  622. 

2  Sewell  V.  Angerstein,  18  L.  T. 
300;  Ex  parte  Wilson,  2  Mont.  & 
A.  61 ;  Johnson  v.  Wiseman,  4  Met. 
357,  83  Am.  Dec.  475;  Ex  parte 
Acton,  4  L.  T.,  N.  S.,  261.  See 
Smith  V.  Commonwealth,  14  Bush, 
31,  29  Am.  Rep.  402. 

8  Ex  parte  Acton,  4  L.  T.,  N.  S., 


dHAP.    XXXIII.]      FIXTURES  PASSING  BY  DEED.  2311 

While  the  general  rule  is  that  gas-fixtures  are  chattels,  and 
do  not  pass  by  deed  of  the  premises,  yet  the  intention  of 
the  owner,  shown  by  other  acts,  may  convert  them  into  fix- 
tures; and  they  may  by  virtue  of  these  acts  pass  to  the  grantee. 
Thus,  the  owner  of  a  house,  as  an  inducement  to  a  person 
to  purchase,  told  him,  during  the  negotiations  for  the  sale, 
that  the  house  was  complete  and  ready  to  move  into,  and 
that  "all  he  had  to  do  was  to  walk  in  and  light  the  gas," 
as  it  was  complete.  After  the  sale  the  former  owner  brought 
an  action  to  recover  the  gas-fixtures  on  the  ground  that  they 
did  not  pass  by  the  deed ;  it  was  held,  however,  that  the  gas- 
fixtures  became  attached  to  the  freehold,  and  passed  by  a 
deed  of  it,  for  the  reason  that  the  statement  made  as  an 
inducement  to  the  purchase  demonstrated  that  the  gas-fixtures 
had  been  attached  to  the  house  to  increase  its  general  value, 
and  not  for  temporary  use.* 

§  1226.  Manure. — All  manure  which  is  made  in  the 
ordinary  course  of  husbandry,  and  which,  at  the  time  of 
the  execution  of  the  deed,  is  upon  the  premises,  will  pass, 
by  the  deed,  as  an  incident  to  the  land,  unless  it  is  ex- 
pressly reserved.  "It  must  be  regarded  as  settled  in  this 
State,  that  as  between  grantor  and  grantee,  all  manure  made 
in  the  ordinary  course  of  carrying  on  the  farm,  and  which 
is  upon  the  premises  at  the  time  of  the  sale  and  conveyance, 
will  pass  to  the  grantee  as  an  incident  to  the  land  conveyed, 
unless  there  be  a  reservation  in  the  deed;  and  that  it  makes 
no  difference  whether  it  be  in  the  field,  or  in  the  yard,  or  in 
heaps  at  the  windows,  or  under  cover.  It  is  an  incident  and 
appurtenance  to  the  land,  and  passes  with  it,  like  the  fallen 
timber  and  trees,  the  loose  stones  lying  upon  the  surface 
of  the  earth,  and  like  the  wood  and  stone  fences  erected 
upon  the  land,  and  the  materials  of  such  fences,  when  placed 

261;   Ex  parte  Wilson,  2  Mont.  &  *  Funk  v.   Brigaldi,  4  Daly,  359. 

A.  61. 


2312 


THE  LAW  OF  DEEDS. 


[ciiAP.  xxxin. 


Upon  the  ground  for  use,  or  acicdentally  fallen  down."  '  In 
New  Jersey,  while  it  is  admitted  that  manure,  after  it  is 
spread  upon  the  land,  and  appropriated  to  fertilizing  purposes, 
becomes  a  part  of  the  freehold  and  passes  by  a  deed  of  the 
real  estate,  yet  it  has  been  decided  that  where  land  is  con- 
veyed by  deed  without  any  clause  of  reser\'ation,  tlie  title  to 
manure  lying  in  and  around  the  barnyard  does  not  pass  to 
the  grantee.  This  decision  is,  however,  opposed  by  the  weight 
of  authority,  and  cannot  be  recognized  as  announcing  the 
generally  accepted  rule."    Where  manure  is  made  in  a  livery- 


8  Plumer  v.  Pliimer,  30  N.  H.  (10 
Post.)  558,  568,  per  Eastman,  J; 
Snow  V.  Perkins,  60  N.  H.  493.  49 
Am,  Rep.  333;  Conner  v.  Coffin,  2 
Post.  538;  Parsons  v.  Camp,  11 
Conn.  525;  Goodrich  v.  Jones,  2 
Hill,  142;  Sawyer  v.  Twiss,  6  Post. 
345;  Kittredge  v.  Woods,  3  N.  H. 
503,  14  Am.  Dec.  393;  Needham  v. 
Allison,  4  Post.  355 ;  Stone  v.  Proc- 
tor, 2  Chip.  D.  108;  Veheu  v. 
Mosher,  76  Me.  469 ;  Chase  v.  Win- 
gate,  68  Me.  204,  28  Am.  Rep.  36; 
Strong  V.  Doyle,  110  Mass.  92; 
Snow  V.  Perkins,  60  N.  H.  493.  49 
Am.  Rep.  333;  Hill  v.  De  Roche- 
mont,  47  N.  H.  88;  Perry  v.  Carr, 
44  N.  H.  118;  Norton  v.  Craig,  68 
Me.  275 ;  Daniels  v.  Pond,  21  Pick. 
367,  32  Am.  Dec.  269;  Brigham  v. 
Overstreet.  128  Ga.  447,  10  L.R.A. 
(N.S.)   452,  57  S.  E.  484. 

In  Wetherbee  v.  Ellison,  19  Vt. 
379,  it  is  held  that  the  manure  of 
animals,  made  upon  a  farm,  wheth- 
er spread  about  the  barnyard,  or 
lying  in  piles  at  the  stable  windows, 
or  lying  in  piles  in  the  stable  where 
it  has  been  allowed  to  accumulate, 
will  pass  by  a  deed  of  the  freehold 
as  appurtenant  to  it,  and  that  a 
tenant  is  not  entitled  to  remove  the 


manure,  although  he  owned  the 
crops  from  which  it  was  made.  It 
was  also  held  where  the  defendant, 
who  was  in  the  occupancy  of  the 
farm  as  a  tenant  at  the  time  of  its 
conveyance  by  the  owner  to  the 
plaintiff,  removed  from  the  farm, 
subsequently  to  the  conveyance,  the 
manure  which  had  been  allowed  to 
accumulate  in  the  stable  before  that, 
even  if  as  between  the  defendant 
and  the  grantor  of  the  plaintiff,  the 
defendant  had  the  right  to  remove 
the  manure,  yet  in  the  absence  of 
any  notice,  actual  or  constructive, 
to  the  plaintiff  of  his  right,  the  in- 
tention of  defendant  to  remove  it 
at  the  time  he  piled  it  in  the  stable 
could  not  affect  the  right  of  plain- 
tiff to  it,  where  that  intention  was 
not  manifested  by  any  act  suffi- 
cient to  put  the  plaintiff  upon  in- 
quiry at  the  time  of   the  sale. 

8  Ruckman  v.  Cutwater,  4  Dutch. 
(28  N.  J.  L.)  581.  Haines.  J.,  de- 
livering the  opinion  of  the  court, 
said :  "The  question  thus  present- 
ed is,  whether  by  the  deed  of  con- 
veyance of  a  tract  of  land,  without 
any  clause  of  reservation,  the  title 
to  the  manure  lying  in  and  around 
the  barnyard  where  it  had  accumu- 


CHAP.    XXXIII.]      FIXTURES  PASSING  BY  DEED. 


2313 


Stable  or  out  of  the  ordinary  course  of  husbandry,  it  does 
not  pass  by  a  deed  of  the  real  estate.  "The  reasons  given 
for  holding  that  manure  made  in  the  ordinary  course  of 
husbandry  goes  with  the  farm,  exclude  the  idea  that  when 
made  out  of  the  ordinary  course  of  husbandry,  it  is  a  part 
of  the  realty.'"     The  rule  that  manure  made  on  a   farm 


lated  passed  to  the  grantee.    By  an 
ordinary    deed    of    conveyance    of 
land  nothing  passes  to  the  grantee 
but  the  real  estate  and  its  appur- 
tenances,   and     whatsoever    is    at- 
tached or  affixed  to  it,  that  it  can- 
not be  removed  without  injury  to 
the  freehold.     Hence  the  question 
arises,  whether  manure  so  lying  in 
a  barnyard   is   a   part   of   the   real 
estate,  or  an  appurtenant  to  it,  or 
so  attached  to  the  freehold  that  it 
passes  with  it  by  virtue  of  the  deed 
of  conveyance.    The  question  is  not 
to  be  determined  by  the   rules  of 
law    regulating    fixtures,     for    the 
property  in  question  is  in  no  respect 
a  fixture,  an  article  of  a  personal 
nature  affixed  to  the  freehold,  and 
which  cannot  be  removed  without 
injury  to  it,  nor  is  it  claimed  as 
such.     It  is  claimed  as  part  of  the 
freehold   itself,   an   appurtenant  to 
it,  and  which,  for  the  sake  of  agri- 
culture and  good  husbandry,  should 
not  be   removed.     But  as  between 
the  grantor  and  grantee,  I  can  dis- 
cover no  reason,  nor  can  I  find  any 
satisfactory     authority     for     such 
claim.     Manure   in  the  yard  is  as 
much  personal  property  as  the  ani- 
mals  and   litter   from   which   it   is 
produced,  as  much  so  as  the  grain 
in  the  barn,   or  the  stacks  of  hay 
in  the  meadow.     And  it  is  not  ma- 
terial whether  it  lies  upon  heaps  or 
scattered  around  the  yard,  whether 


as  thrown  from  the  doors  or 
windows  of  the  stable,  or  where 
it  accum*blated  from  the  droppings 
of  the  cattle.  But  when  it  is  spread 
upon  the  land,  and  appropriated  to 
it  for  fertilizing  purposes,  then,  and 
not  till  then,  does  it  become  a  part 
of  the  freehold.  Posts  and  rails, 
designated  for  the  farm,  are  per- 
sonal property  so  long  as  they  re- 
main in  piles  or  otherwise  unap- 
propriated; but  as  soon  as  they 
are  converted  into  fences  they  be- 
come a  part  of  the  freehold  affixed 
to  it,  so  as  to  lose  the  character  of 
personalty.  As  well  may  the  timber, 
stones,  and  other  materials  brought 
together  for  the  construction  of  a 
building  be  regarded  as  a  part  of 
the  farm  before  the  building  is 
erected,  as  the  manure  before  it  is 
applied."  See  Smithwick  v.  Ellison, 
2  I  red.  326,  38  Am.  Dec.  697. 

7  Proctor  v.  Gilson,  49  N.  H.  62, 
65,  per  Bellows,  C.  J.  In  that  case, 
where  a  deed  was  made  of  a  house 
and  stable  with  a  small  piece  of 
land  used  as  a  backyard,  but  not 
cultivated,  it  was  held  that  the 
manure  in  the  stable  cellar  made 
by  the  horses  of  the  grantor,  a 
teamster,  did  not  pass  by  the  deed, 
and,  also,  that  proof  that  at  the 
time  of  the  conveyance  there  was 
a  parol  agreement  that  the  manure 
should  pass  with  the  land  was  not 
admissible.    See,  also,  Snow  v.  Per- 


2314  THE  LAW  OF  DEEDS.  [CHAP.    XXXlIl. 

passes  to  the  grantee  as  an  appurtenance  to  the  real  estate 
conveyed  is  one  adopted  from  motives  of  policy  for  the  pro- 
motion of  the  interests  of  agricuUure.  When  a  sale  is  made 
not  of  an  entire  farm  but  of  only  a  small  part  of  it,  the 
rule  does  not  apply.' 

§  1227.  Permanent  severance. — As  annexation,  either 
actual  or  constructive,  is  essential  to  constitute  a  chattel  a 
fixture,  it  naturally  follows  that  when  that  annexation  no 
longer  exists,  the  article  formerly  attached  to  the  realty  should 
resume  its  character  as  personalty.  Where  a  severance  of 
a  fixture  is  permanent,  and  not  made  with  the  intention  of  a 
reannexation,  the  fixture  becomes  personal  property,  and,  un- 
less expressly  enumerated  in  the  deed,  will  not  pass  by  a  con- 
veyance of  the  land.  Thus,  a  fire  burned  down  the  improve- 
ments upon  a  piece  of  real  estate,  conveyed  by  a  deed  of 
trust,  and  some  of  the  fixtures  were  removed.  The  trustee 
afterward  sold  the  property  under  the  trust  deed,  using  the 
same  description  in  his  deed  as  was  contained  in  the  deed  of 
trust.  Under  these  circumstances,  it  was  decided  thJit  there 
being  no  expressed  intention  to  sell  the  removed  fixtures, 
they  were  not  conveyed  by  such  sale,  and  that  while  the 
trustee  might  sell  the  fixtures  as  personal  property,  they 
would  not  pass  by  a  sale  of  the  ruined  premises  merely.* 

kins,   60  N.   H.   493,  49   Am.   Rep.  the   trustee   or  beneficiaries   in   the 

333;   Perry  v.  Carr,  44  N.  H.  118;  trust    could    have   reached    the    fix- 

Plumer  v.   Plumer,  30  N.   H.  558;  tures  that  were  detached,  if  neces- 

Farrar  v.  Smith,  64  Me.  74;  Need-  sary  for  the  payment  of  the  debts, 

ham    V.    Allison,    24    N.    H.    355 ;  but  whether  the  title  to  the  fixtures 

Sawyer   v.   Twiss,   26   N.    H.   349 ;  passed  by  a  mere  sale  of  the  ruined 

Corey    v.    Bishop,    48    N.    H.    146;  premises,     continued:       "There     is 

Lassell  v.  Reed,  6  Me.  222.  nothing   in   the   case   to   show  that 

8  Collier  V.   Jenks,   19   R.    I.    137,  such  was  the  intention  of  the  par- 

61  Am.  St.  Rep.  741.  ties.     In   my  judgment  the  trustee 

5  Curry  v.   Schmidt,   54  Mo.  515.  could  have  sold  the  fixtures  as  per- 

Judge  Adams,  delivering  the  opin-  sonal  property;  but  he  had  no  right 

ion    of    the   court,    after   observing  to  sell  them  merely  by  selling  the 

that  the  question  was  not  whether  ruined  premises.     In  the  condition 


CHAP.    XXXIII.]       FIXTURES  PASSING  BY  DEED. 


2315 


An  owner  of  land  on  which  there  was  a  sawmill  with  the 
machinery  therein,  executed  a  mortgage  which  was  fore- 
closed and  the  premises  sold;  the  purchaser  at  the  foreclo- 
sure sale  having  subsequently  contracted  to  sell  the  premises 
to  the  plaintiff,  the  latter  went  into  possession ;  the  mort- 
gagor, prior  to  the  sale  under  the  judgment  of  foreclosure, 
had  removed  a  portion  of  the  machinery,  leaving  the  severed 
articles  in  and  about  the  mill,  where  they  were  at  the  time 
of  the  sale,  and  of  the  contract  to  sell  to  plaintiff.  It  was 
held  that  even  if  the  purchaser  at  the  foreclosure  sale  be- 
came the  owner  of  the  severed  property  by  virtue  of  his 
purchase  of  the  land,  his  deed  of  the  land  did  not  convey  to 
the  plaintiff  the  property  which  had  been  detached  from  the 
realty.*     Where  there  has  been  a  constructive  severance  of 


that  the  premises  were  in,  and  as 
they  stood  upon  the  ground  when 
sold,  those  fixtures  formed  no  part 
of  the   realt}'." 

lO'Dougherty  v.  Felt,  65  Barb. 
220.  Mullin,  J.,  speaking  for  the 
court,  said :  "By  virtue  of  the 
mortgage,  the  mortgagee  acquired 
a  lien  on  all  that  formed  a  part  of 
the  realty  at  the  time  it  was  given, 
and,  when  he  foreclosed,  he  had 
a  right  of  action  for  the  property 
severed  before  the  foreclosure : 
Southworth  v.  Van  Pelt,  3  Barb. 
347;  Van  Pelt  v.  McGraw,  4  N.  Y. 
110.  It  is  not  material  whether  the 
remedy  of  the  mortgagee  is  trover 
for  the  property  severed,  or  an  ac- 
tion for  damages  by  reason  of  the 
severance.  In  either  case,  the  prop- 
erty having  ceased  to  be  a  part  of 
the  realty,  a  conveyance  of  the 
premises  to  which  it  was  attached 
will  not  carry  the  articles  severed. 
Unless  personal  property  is  men- 
tioned in  a  deed  of  land,  it  will 
not  of  course,  pass.    So  that  on  the 


sale  by  Stewart  to  the  plaintiff,  the 
property  severed  did  not  pass,  even 
if  Stewart  became  owner  of  it  by 
virtue  of  his  purchase  on  the  fore- 
closure sale.  There  is  no  evidence 
that  anything  but  the  land  was  sold, 
and  that  did  not  embrace  the  prop- 
erty in  question."  Where  a  vault, 
forming  part  of  the  realty,  is  re- 
moved, the  measure  of  damages  is 
its  value  immediately  preceding  its 
removal,  and  not  the  price  that 
might  be  obtained  for  it  in  open 
market,  if  removed  from  the  build- 
ing: Rhoda  V.  Alameda  County,  58 
Cal.  357.  In  Straw  v.  Straw,  39 
Atl.  1095,  70  Vt.  240,  it  was  held 
that  where,  in  a  conveyance  of  fac- 
tory premises,  a  water  wheel  and 
shafting  were  reserved,  the  reser- 
vation operated  to  make  the  water 
wheel  and  shafting  personal  chat- 
tels. The  grantor  did  not  lose  his 
right  to  remove  the  chattels  by  al- 
lowing them  to  remain  attached  to 
the  factory  for  more  than  two 
years.    Also,  where  a  henhouse  was 


2316  THE  LAW  OF  DEED?.  [CHAP.    XXXIII. 

the  fixtures  from  the  freehold,  although  the  purchaser  of 
the  realty  and  fixtures  allows  their  physical  annexation  to 
remain  undisturbed,  the  fixtures  will  be  constructively  rean- 
nexed  to  the  freehold  by  the  execution  by  the  purchaser  of  a 
subsequent  deed  conveying  the  realty  in  which  there  is  no 
reference  to  the  fixtures,  either  by  way  of  conveyance  or  of 
reservation.^  A  conveyance  of  the  land  will  not  pass  timber 
cut  and  piled   on   it   for  the  purpose  of  building  a   fence.' 

§  1228.  Temporary  severance. — Where  the  removal  is 
for  a  temporary  purpose  merely,  the  articles  retain  their 
character  as  realty,  and  pass  to  a  purchaser  by  a  deed.  Thus, 
rails  which  had  formed  a  part  of  a  fence,  but  had  been  tem- 
porarily severed  from  the  realty,  were  held  to  pass  by  a  deed 
of  the  premises.*  So  it  has  been  held  that  the  stanchion 
timbers,  tie-up  planks,  hinge  staples,  and  tie-chains  of  a  barn, 
which  it  was  apparent  had  been  removed  for  convenience  in 
repairing  the  barn,  passed  by  a  conveyance  of  the  farm  and 
buildings.^ 

§  1229.  Severance  by  act  of  God. — If  the  severance 
occurs  by  an  act  of  God,  does  the  property  become  person- 
alty, or  retain  its  character  as  personalty?  This  may  often 
become  a  question  of  great  importance,  where  some  lien  exists 
upon  real  estate,  which  embraces  the  buildings  placed  thereon 

erected  on  land  of  another  with  the  ^  Solomon  v.  Staiger,  65  N.  J.  L. 

understanding  that  it  should  remain  617,  48  Atl.  996. 

personal  property,  a  subsequent  pur-  '  Longino   v.    Wester,    88    S.   W. 

chaser  of  the  land  with  the  under-  445. 

standing    that    the    henhouse    was  *  McLaughlin  v.  Johnson,  46  111. 

reserved   cannot    defend    an   action  163.    And  parol  proof  was  also  held 

for  conversion  in  reselling  the  land  inadmissible  to  show  what  fixtures 

with   the   henhouse  on   the  ground  passed  by  the  deed. 

that  the  owner  of  the  henhouse  was  ^  Wadleigh  v.  Janvrin,  41   N.  H. 

given  two  months  notice  to  remove  503,  11  Am.  Dec.  780;  Goodrich  v. 

the   same:     Pile   v.   Holloway,    107  Jones,  2  Hill,  142.     See  Walker  v. 

S.  W.   104.3.  s;herman,  20  Wend.  639,  640. 


CHAP.    XXXIII.]       FIXTURES  PASSING  BY  DEED.  2317 

as  a  part  of  the  land.     In  a  case  in  Pennsylvania,  the  owner 
of  a  lot  of  ground,  upon  which  a  large  frame  building  had 
been  erected,  conveyed  the  property  in  trust  for  the  benefit 
of  creditors;  a  judgment  which  was  a  lien  upon  the  real  es- 
tate conveyed  had  been  recovered  against  the  assignor  prior 
to  the  assignment.     A  storm  two  days  after  the  execution 
of  the  assignment  demolished  the  building,  leaving  the  found- 
ation and  floors  nearly  uninjured,   but  breaking  the  super- 
structure so  that  the  materials  could  not  be  replaced.     The 
whole  was  levied  upon  and  sold  upon  execution  based  upon 
the  judgment  against  the  assignor,   and   the  court,   upon   a 
controversy  between  the  execution  purchasers  and  the  volun- 
tary assignees,  held  that  the  ruins  and  fragments  were  real 
property,  and  passed  by  the  sheriff's  deed.     Strong,  J.,  who 
delivered  the  opinion  of  the  court,  said :  "The  true  rule  would 
rather  seem  to  be,  that  that  which  was  real  shall  continue 
real  until  the  owner  of  the  freehold  shall  by  his  election  give  \ 
it  a  different  character.     In  Shepherd's  Touchstone,   90,   it 
is  laid  down  that  'that  which  is  parcel,  or  of  the  essence  of 
the  thing,  although  at  the  time  of  the  grant  it  be  actually 
severed  from  it,  does  pass  by  a  grant  of  the  thing  itself. 
And,  therefore,  by  the  grant  of  a  mill,  the  millstone  doth 
pass,  although  at  the  time  of  the  grant  it  be  actually  severed 
from   the  mill.      So   by  the  grant   of   a   house,   the   doors, 
windows,  locks,  and  keys  do  pass  as  parcel  thereof,  although 
at  the  time  of  the  grant  they  be  actually  severed  from  it.'    It 
must  be  admitted  that  the  case  before  us  is  one  almost  of 
the  first  impression.     Very  little  assistance  can  be  derived 
from  past  judicial  decision.     There  is  supposed  to  be  some 
analogy  between  the  character  of  these  fragments  of  the  build- 
ing and  that  of  a  displaced  fixture.     The  analogy,  however, 
if  any,  is  very  slight.     These  broken  materials  never  were 
fixtures,  though  they  had  been  fixed  to  the  land.     They  had 
been  as  much  land  as  the  soil  on  which  they  rested.     Sever- 


2318 


THE  LAW  OF  DEEDS. 


[chap,  xxxin. 


ance  had  never  been  contemplated."  '  In  California,  a  house 
removed  by  a  flood  from  land  upon  which  there  was  a  mort- 
gage lien,  was  sold  by  the  owner  to  a  person  having  notice 
of  all  the  facts.  The  court  held  that  the  severance  and  re- 
moval of  the  house  from  the  land  released  the  house  from 
the  operation  of  the  lien  of  the  mortgage,  and  that  the  pur- 
chaser had  a  perfect  title  to  it.' 

§  1230.  Stoves,  furniture,  etc.— The  general  rule  is, 
that  stoves  fastened  in  the  usual  way,  and  capable  of  re- 
moval without  injury  to  the  freehold,  do  not  pass  by  a  deed." 


8  Rogers  v.   Gilinger,   30   Pa.   St. 
185,  72  Am.  Dec.  694.     The  court 
said  further:   "Nor  will  the  tortious 
act  of  a  stranger  be  allowed  to  in- 
jure the  reversion:    2  Maule  &  S. 
494,  1  Term.  Rep.  55;  Garth  v.  Sir 
John  Cotton,  1  Ves.  Sr.  524.    These 
principles    are    reasserted    in    Shult 
V.    Barker,    12   Scrg.   &   R.   272.   7 
Conn.   232,   3   Wend.    104,   20   Am. 
Dec.    667.      Nor    will    a    severance 
by  the  owner  of  that  which  was  a 
part  of  the  realty,  unless  the  sever- 
ance be  with  the  intent  to  change 
the  character  of  the  thing  severed, 
and  convert  it  into  personalty,  pre- 
vent it  passing  with  the  land  to  a 
grantee.    Thus  it  was  held  in  Good- 
rich v.  Jones,  2  Hill,  142,  that  fenc- 
ing materials  on  a  farm  which  have 
been   used    as   part   of   the    fences, 
but  are  temporarily  detached  with- 
out any  intent  to  divert  them  from 
their  use  as  sucli,  are  a  part  of  the 
freehold,    and    as    such    pass    by    a 
conveyance  of   the   farm  to  a  pur- 
chaser.    Is  the  rule  different  when 
the  severance  occurs  not  by  a  tor- 
tious act,  nor  by  a  rightful  e.xercise 
©f   proprictorsliip,   without   any   in- 
tent   *««    divert    the    thing    severed 


from  its  original  use,  but  by  the 
act  of  God?  The  act  of  God,  it 
is  said,  shall  prejudice  no  one  (4 
Co.  86b),  yet  the  maxim  is  not 
true,  if  a  tempest  be  permitted  to 
take  away  the  security  of  a  lien 
creditor,  and  transfer  that  which 
was  his  to  the  debtor  or  the  debtor's 
assignees." 

'Buckout  v.  Swift,  27  Cal.  433, 
87  Am.  Dec.  90.  See  Clark  v.  Rey- 
burn,  1  Kan.  281 ;  Wochler  v.  End- 
tor,  46  Wis.  301 ;  Harris  v.  Bannon, 
78  Ky.  568;  Citizens'  Bank  v. 
Knapp,  22  La.  Ann.  117.  And  see 
Hutchins  v.  King.  1  Wall.  53 ;  Gard- 
ner v.  Finley,  19  Barb.  317;  Hill 
v.  Gwin,  51  Cal.  47;  Dorr  v.  Dud- 
derar,  88  111.  107. 

8  Freeland  v.  Southworth,  24 
Wend.  191 ;  Williamson  v.  Bailey, 
3  Dane's  Abr.  152,  §  25.  In  Free- 
land  V.  Southworth,  24  Wend.  191, 
Bronson,  J.,  said:  "I  think  the 
stove  and  pipe  were  not  affixed  to 
the  freehold,  and  did  not  pass  by 
the  conveyance  of  the  land  to  the 
plaintiff.  It  is  not  alleged  that  the 
stove  was  fastened  to  the  building 
in  any  manner  whatever,  and  (he 
temporary  fastenings  about  the  pipe 


CHAP.    XXXIII.]       FIXTURES  PASSING  BY  DEED. 


2319 


Some  decisions  may  be  found  in  which  stoves  have  been  de- 
clared to  be  fixtures,  and  regarded  as  part  of  the  freehold. 
But  in  most  of  them,  the  attachment  to  the  building  was  made 
in  such  a  manner  that  they  could  not  be  removed  without 
serious  injury  to  it.*  Articles  of  furniture,  such  as  hangings, 
bookcases,  carpets,  mirrors,  etc.,  though  they  may  be  fastened 
for  a  temporary  purpose,  do  not  pass  by  a  deed  of  the  realty.^ 
A  cupboard  made  and  fitted  into  a  recess,  and  fastened  there 
by  nails  or  screws,  does  not  pass  by  a  conveyance  of  the  real 
property.^  ]\Iarble  slabs  laid  upon  brackets  screwed  into  the 
walls,  but  not  fastened  to  them,  do  not  pass  by  a  deed,  and 
the  vendor  may  remove  them.' 


were  such  as  could  be  removed 
without  the  slightest  injury  to  the 
chimney.  In  Goddard  v.  Chase,  7 
Mass.  432,  on  which  the  plaintiff 
relies  the  stoves  were  set  in  the 
chimneys  so  that  it  was  necessary 
to  pull  down  the  fireplaces  to  get 
them  out.  Stoves  put  up  in  such 
a  manner  that  they  can  be  removed 
at  pleasure,  and  without  injury  to 
the  building,  have  never  been  con- 
sidered a  part  of  the  freehold  in 
this  State.  See  2  Rev.  Stats.  467, 
§  22,  and  p.  83,  §§  9,  10.  .  .  . 
I  see  nothing  to  distinguish  this 
from  the  ordinary  case  of  stoves 
put  up  in  such  a  manner  that  they 
can  be  removed  and  replaced,  or 
others  substituted  at  pleasure,  with- 
out in  any  way  impairing  the  build- 
ing. The  stove  was  a  part  of  the 
furniture  of  the  house,  which  the 
vendor  had  a  right  to  remove  with 
his  other  goods."  See  Kerby  v. 
Clapp,  44  N.  Y.  S.  116,  15  App. 
Div.  37,  holding  that  a  cooking 
range  and  heater  which  can  be  re- 
moved without  injury  to  the  free- 
hold are  not  fixtures. 


^  See  Goddard  v.  Chase,  7  Mass. 
432;  Smith  v.  Heiskell,  1  Cranch 
C.  C.  99 ;  Blethen  v.  Towle,  40  Me. 
310;  Folsom  v.  Moore,  19  Me.  252; 
Tuttle  v.  Robinson,  33  N.  H.  104: 
Andrews  v.  Powers,  72  N.  Y.  S. 
597,  66  App.  Div.  216;  Mantel,  gas 
grate  and  necessary  fixtures  become 
a  part  of  the  realty  because  they 
are  permanently  attached  thereto 
and  cannot  be  removed  without  ma- 
terial injury. 

iShaw  V.  Lenke,  1  Daly,  487; 
Walker  v.  Sherman,  20  Wend.  646 ; 
McKeage  v.  Hanover  F.  Ins.  Co., 
81  N.  Y.  38,  37  Am.  Rep.  471.  Mir- 
rors, however,  set  into  the  wall  as 
a  part  of  the  house  at  the  time  of 
its  erection  will  pass :  Wane  v. 
Kilpatrick,  85  N.  Y.  413,  39  Am. 
Rep.  674;  Spinney  v.  Barbe,  43  111. 
App.  585. 

2  Blethen  v.  Towle,  40  Me.  310. 

3  Weston  v.  Weston,  102  Mass. 
514.  Says  ]\Iorton,  J:  "After  the 
judgment  for  possession,  and  be- 
fore the  execution  was  issued,  he 
removed  and  carried  away  a  num- 
ber of  marble  and  imitation  marble 


2320 


THE  LAW  OF  DEEDS. 


[chap.  XXXIU. 


slabs,  which  the  plaintiff  claims 
were  fixtures,  and  passed  to  him 
by  the  conveyance  from  said  de- 
fendant. But  upon  the  facts  re- 
ported by  the  auditor,  we  are  of 
opinion  that  these  slabs  were  not 
so  annexed  to  the  real  estate  as  to 
become  part  of  it.  They  were  not 
attached  to  the  wall,  and  could  be 
removed  without  injury  to  the 
house  or  to  themselves.  They 
formed  a  part  of  the  furniture  of 
the  rooms,  useful  and  convenient, 
but  not  essential  to  the  enjoyment 
and  use  of  the  house,  and  not  per- 
manently incorporated  with  the 
freehold  so  as  to  become  a  part  of 
it.  The  plaintiff,  therefore,  cannot 
recover  their  value  in  this  suit." 
See,  also,  D'Eyncourt  v.  Grcpory, 
Law  R.  3  Eq.  382;  Ex  parte  Mor- 


row, 1  Low.  Dec.  386;  Rogers  v. 
Crow,  40  Mo.  91,  93  Am.  Dec.  299; 
Snedeker  v.  Warring,  12  N.  Y.  170. 
Windows  and  blinds,  although 
temporarily  separated  from  the 
house,  pass  by  a  deed :  Peck  v, 
Batchelder,  40  Vt.  233,  94  Am.  Dec, 
392,  So  will  a  furnace  attached 
to  the  brickwork:  Stockwell  v, 
Campbell,  39  Conn.  362,  12  Am. 
Rep.  393 ;  Main  v.  Schwazwaelder, 
4  E.  D.  Smith,  273,  As  to  steam 
radiators,  see  National  Bank  v. 
North,  160  Pa,  St,  303;  Capehare 
v.  Foster,  61  Minn.  132,  63  N.  W, 
Rep.  257,  52  Am.  St.  Rep,  582.  A 
deed  or  mortgage  of  an  opera  house 
will  pass  all  the  furniture,  pictures, 
and  furnishings  necessary  for  a 
complete  opera  house:  Grosvenor 
v.  Bethell,  93  Tenn.  577. 


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